# FILED Feb. 5, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COUR

T OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) ERMA HAR

DESTY and ) Shelby Law JIM HARD ESTY , ) 33600 T.D. ) Plaintiff

s/Appella nts. )

) VS. ) C. A. NO. 02A01-9510-CV-00235 ) SERVICE MER CHANDISE ) COMPANY, INC. , ) ) Defendant/Appellee. ) )

________________________________________________________________________

SEPARAT E CONCURR ING OP INION The majority holds that the plaintiff ca nnot establish constructive notice. I am constrained to agree. Howeve r, I invite our Supreme Court to revisit this area of la w. The plaintiff entered Service Mercha ndise. She tripped over an object protruding into the aisle. She sustained a fractured hip, wa s hospitalized, and underwent
su rg er y. For plaintiff to prevail, she must demonstrate that either: (1) the dang erous condition was created by

the store owner or its agents; or (2) the store owner had actual or constructive notice of the dangerous c ondition. It is illogical to surmise that an employ ee will confess: "Yes, I

created the dangerous condition that injured the plaintiff." The e mployee may

not be aware that he or she cre ated the

dange rous cond ition. More over, the

fear of becoming

unemploy

ed is a logical impediment to plaintiff's development of proof. The rules place an insurmountable burden on the innocent injured pla intiff. Had Service Merchandise created this dang erous condition, how would this Court have plaintiff carry

her burden? The store or its agents are in sole possession of the proof2 plaintiff require s to move f

orward . Curiously , howeve r, we pla ce the bu rden on th

e party without control of the proof to bear the burden of moving for ward.
I find it even more disconce rting that the rule we have developed e ncourages or promotes ignorance. Store owners may circumvent liability by

simply remaining unaware. They

are not held accountable for injuries cause d by dang erous conditions unless the conditions existed so long that they should have known. From a purely

economic perspective, store owners are in a much better possession to bear the loss. Owners invite consumers upon their premises. They derive economic benefit from patron visits. They , therefore, should be encourag ed to maintain a safe environment for their customers. I am not suggesting that store owners be insurers of their pro perty . I a m sugg esting, however , that the law should

encoura ge a sto re owne r to inspect a nd mainta in safe p remises.
I thin k the law w ould be be

tter ser ved by charg ing stor

e owner s with constructive notice. Owners are in possession of the proof a nd in a much better position to rebut. Quite easily, the e mployer could offe

r proof that the aisles are checked hour ly. An employ

ee could then simply

testify that he or

she inspe cted or w alked down the aisle just prior to plaintiff's injury and did not notice a n object protruding into the aisle. If the employ

er cannot rebut constructive notice, he or she the n can argue apportionment of liability. I f the jury finds the plaintiff ove r 50% or more at fault, the plaintiff bears the loss. A common sense deduction is that employe es creating dange rous conditions which ulti mately

cause in juries ar e not like ly to

come for ward. A p laintiff

's sole remaining viable option, in reality under the current law, is locating a pa tron who viewed the dangerous condition some time prior to the accident. Does the Court expect the3 injured victim to publish in a newspaper "Any one seeing a bed rail protruding into an aisle at Ser vice Merchandi se on . . ."?
We need to

study this impra

ctical bu rden. We c ontinue st

riking i njured pa

trons' claims without providing any g uidance as to how the innocent injured victim may
overcom e the har sh burden

of our rules. I

t is no bette

r to have a rule th an to have

a rule which promotes ignorance and serve s no end.

______________________________ PAUL G. S UMMER S, J udge