Susan Taylor v. Square D Company

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 7, 2003 Session

SUSAN TAYLOR v. SQUARE D COMPANY

Appeal from the Circuit Court for Rutherford County

No. 43,748 Robert E. Corlew, III, Judge

No. M2002-01620-COA-R3-CV - Filed December 30, 2003

Disobeying the direct orders of his supervisor, an electrician began work on a substation without

following the proper safety procedures. He was electrocuted and perished almost instantly. The

widow of the electrician brought suit against the manufacturer of the substation, alleging that the

manufacturer was negligent and had defectively designed an unreasonably dangerous product. The

trial court granted summary judgment for the manufacturer. Because there are no material factual

disputes, and the negligence of the electrician was clearly greater than that of the manufacturer, we

affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,

and WILLIAM CHARLES LEE, Sp. J., joined.

Robert L. Huskey, Manchester, Tennessee, for the appellant, Susan Taylor.

James H. London, Libba Bond, Lori M. Ritter, Knoxville, Tennessee; Jeffrey L. Reed, Murfreesboro,

Tennessee, for the appellee, Square D Company.

OPINION

Susan Taylor brought suit against Square D Company (“Square D”) seeking damages for the

death of her husband, Michael Taylor, which occurred at the Bosch Braking facility in Clarksville,

Tennessee. Mr. Taylor, a journeyman electrician, was electrocuted while performing work on a

substation. Mrs. Taylor alleged that the manufacturer, Square D, was negligent, or that the

equipment it supplied was defective in design and unreasonably dangerous. Relying on several

affidavits and depositions, Square D filed a motion for summary judgment, arguing that there were

no genuine issues of material fact and that they were entitled to judgment as a matter of law. After

a hearing, the trial court granted summary judgment for Square D. Mrs. Taylor appeals.

I. Undisputed Facts

The undisputed facts show the following: Mr. Taylor was employed by Amprite Electric

Company as an electrician. Amprite was installing a new electrical service for the Bosch Braking

facility which included a double-ended fed substation. The unit is divided into two portions, referred

to as a top bus and a bottom bus. Each bus can work independently. In other words, the top portion

can be energized without the bottom portion being energized. The top bus is accessed by a door; the

bottom bus by a panel.

Over Labor Day weekend 1999, the manufacturing facility was shut down so that the existing

service could be disconnected and the new service required by plant expansion, installed. On

September 5, 1999, Mr. Taylor was working at the Bosch Braking facility when he was told by his

supervisor, superintendent and general foreman David Vari, that the high voltage cables at the new

penthouse in substation 6 needed to be terminated, or completely shut down and de-energized so that

new equipment could be installed. Square D manufactured and assembled the switchgear in

substation 6 that Mr. Taylor would be working on. The substation had 15 thousand volt conductors.

At the time Mr. Taylor and Mr. Vari walked to the substation, the substation was partially

energized. Mr. Vari showed Mr. Taylor which wires needed to go on which feeds, and how it

needed to be fed. The two then walked to the rear of the unit where the back cover had been

removed, but the front covers of the switchgear were in place. There was yellow caution tape in the

area behind the substation. Mr. Vari told Mr. Taylor that the top portion or upper bus of the unit was

energized, the lower bus or portion of the unit was de-energized.

Mr. Vari then told Mr. Taylor that he was going to go get help to de-energize and lock out

the switchgear.1 Mr. Vari then left the area where the substation was located and walked toward the

office when he heard an explosion. Mr. Vari returned to the substation where he found Mr. Taylor

with his clothes on fire. The front cover of the switchgear was removed and Mr. Taylor’s legs were

inside the lower portion of the unit. Mr. Taylor died as a result of electrocution. Mr. Vari could

think of no circumstance in which you would need to get into the unit while it was energized.

Attached to Mr. Vari’s deposition were several accident reports and witness statements. The

witness statement taken by the Montgomery County Sheriff’s Department and the witness statement

Mr. Vari completed for the Tennessee Department of Labor, Division of Occupational Safety and

Health are consistent with the sequence of events that Mr. Vari described. A Supervisor’s Accident

Investigation Report of Personal Injury was completed by Mr. Vari for Amprite. It states:

1

De-energizing and locking out the equipment are processes used to completely shut the equipment off and de-

energize it. They include a procedure for testing the equipment to m ake sure that it is safe to work on. Every employee

of Amprite is issued a tag with his or her picture on it for lock out purposes, and every employee has his or her own lock.

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Mike [Mr. Taylor] proceeded to terminate 15 kv conductors after being instructed to

wait for help and to lock-out the energized portion of the switch board. He removed

the covered 15 kv switch and installed one conductor before shorting out the switch.

The statement indicates that the accident was the result of human error rather than fault in the

equipment because “Mike failed to follow instructions, safety policy, safe work habits, and good

judgment.”

Brian Johnson, a field services representative for Square D, was performing start-up testing

on 480 volt breakers in the low voltage switchgear in the same penthouse that day on a different

substation. The equipment that Mr. Johnson was working on was not connected in any way to the

equipment that Mr. Taylor was working on. He was working with his back to Mr. Taylor at a

distance of about 15 to 20 feet when he heard the explosion. When Mr. Johnson turned around, he

saw Mr. Taylor on his back with his clothing on fire. Mr. Johnson did not energize the substation

that Mr. Taylor was working on, substation 6.

Mr. Lyle Lickiss, a senior staff engineer who investigated the accident for Square D,

performed an inspection of the Square D equipment at the Bosch Braking facility on September 7,

1999. He inspected the high voltage interrupter switch on the substation that Mr. Taylor was

working on at the time of the accident2 and concluded that the switch was not defective or

unreasonably dangerous. He opined that the switch should have been de-energized by Mr. Taylor

prior to his working on the switch and that the switch was unrelated to the low voltage switchboard

sections which Mr. Johnson was working on at the time of the accident. Mr. Lickiss did not generate

a report about the accident because he stated that he was not asked by legal counsel for Square D to

generate such a report. In Mr. Lickiss’s opinion, “Mr. Taylor caused his own accident. It was his

negligent actions of not obeying his foreman’s instructions.”

As an employee of Amprite, Mr. Taylor had received an Amprite Accident Prevention

Program booklet. Subsection A of the booklet stated that employees were to “always de-energize

circuits before working except when it’s not practical as determined by the job supervisor (See lock

out/tag out policy).” The booklet states that:

The purpose of this procedure [the lock out/tag out procedure] is to prevent

unexpected energization, start-up, or release of stored energy in order to prevent

injury. It is to be followed during servicing and maintenance of machines and

equipment in which the “unexpected” start-up of the machine could occur.

The person working on such projects is responsible to see that the circuit is properly

locked out. If an energy isolating device is capable of being locked out, then a lock

2

He was assisted in his inspection of the equipment by a field service technician for Square D and several

Amprite electricians.

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shall be used. If it is not possible to use a lock, then the tag out system will be used.

No one is to ever remove a tag other than the person who attached it.

The understanding of this procedure and the steps to follow could mean the

difference between life and death.

The Accident Prevention Program booklet states the purpose of the lock out/tag out

procedure as follows:

to establish the minimum requirements for the lockout of energy isolating devices

whenever maintenance or servicing is done on machines or equipment. It shall be

used to ensure that the machine or equipment is stopped, isolated from all potentially

hazardous energy sources and locked out before employees perform any servicing or

maintenance where the unexpected energization or start-up of the machine or

equipment or release of stored energy could cause injury.

The Accident Prevention Program booklet also requires all employees to

. . . comply with the restrictions and limitations imposed upon them during the use

of lockout. The authorized employees are required to perform the lockout in

accordance with this procedure. All employees, upon observing a machine or piece

of equipment which is locked out to perform servicing or maintenance shall not

attempt to start, energize, or use that machine or equipment.

The lock out/tag out procedure is also described in a step-by -step fashion in the Accident

Prevention Program booklet. Mr. Vari described the lock out/tag out procedure that should have

been followed on the day Mr. Taylor was killed as follows:

We would have went up to the power house and opened the switches that fed

Substation 5 and 6 and locked them out. . . .we would went up there, opened them

switches, locked them out, . . . which would have killed the power to the substation,

locked them out and then got the high voltage gloves and the tester and tested it and

grounded everything out. Then once we seen that everything was grounded out and

there was no electrical charge on there, we would then proceed work.

According to an Amprite Accident Prevention Program Warning Notice, Mr. Taylor was

issued a warning on September 22, 1998 that he was “working on Section - 0 of MT53-1 machines,

without lock out/tag out of equipment.” Mr. Taylor was disciplined and ordered to review the proper

procedures. He received the infraction due to “negligence” and “potential harm to other employees.”

The technical record also contains sign-in sheets from “safety program” meetings held at Amprite

that Mr. Taylor attended wherein lock out/tag out procedures, safety glasses, hard hats, body

harnesses, clean up, etc. were reviewed on multiple occasions.

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There were several warning labels on the substation that Mr. Taylor was working on in the

penthouse. The first, located on the bottom cover that was removed by Mr. Taylor stated, “Danger,

hazard of electric shock or burn. Turn off power supply in this equipment before working on or

inside.” Two other warning labels stated, “Danger. High voltage. Keep out.” and “Warning. Do

not service switchgear unless all conductors have been grounded according to an accessible safety

procedure.” The warning labels were all easily visible and brightly colored.

II. The Plaintiff’s Expert

Mr. G.H. Redden, the expert for the plaintiff and the father-in-law of Mr. Taylor, filed three

affidavits and gave deposition testimony in preparation for the trial court’s decision on the motion

for summary judgment. His affidavits note his extensive electrical engineering experience and the

fact that he personally examined the penthouse and substation 6 and the equipment the day after the

accident. While Mr. Redden had personally never designed a switch like the one Mr. Taylor was

working on, he had worked with many of them over the course of his career. He felt that any general

electrician, like Mr. Taylor, would be familiar with a lock out/tag out procedure and the necessity

of performing such a procedure prior to commencing work on a piece of electrical equipment.

Mr. Redden felt that Mr. Vari’s affidavit was contradictory, but had no concrete proof to

dispute the sequence of events described by Mr. Vari. He felt that in order for Mr. Vari to tell Mr.

Taylor how to feed the wires in the substation, it would have been necessary for the panels on the

switching gear to be removed by Mr. Vari. After looking at the equipment he opined that “the cables

are inside the enclosure, and there’s steel sheet metal between - - that you can’t see through” and he

“thought the cover was on since it was energized. It would be stupid to have it off if it’s energized.

. . . I believe that one or both of them removed that cover, and I think that the cover was removed

in the presence of, at least, David Vari and probably Mike, too, because you have to be able to

remove the covers to see how it’s connected.” When asked what factual basis he had to support his

opinion that the covers were removed in that fashion, he responded, “many years of experience that

you don’t have covers off of a 15 thousand volt switchgear exposed to hot live parts.” He argued

that Mr. Vari’s testimony was that Mr. Taylor opened the panels to the switchgear after he left to go

get help to lock out/tag out the unit.

Mr. Redden also disagreed with Mr. Johnson’s statement that the two substations were

completely isolated from each other. He asserted that the units were connected electrically, but

again, had no concrete proof to rebut the testimony of Mr. Johnson.

Mr. Redden also contended that while the equipment was not defective, it was unreasonably

dangerous. He felt there should have been some sort of insulating material or barrier between the

upper and lower portions of the unit, such as a thin sheet of glastic,3 which would serve as a barrier

for about 89% of the area involved and could have saved Mr. Taylor’s life. Mr. Redden admitted,

3

The evidence shows that Square D used glastic, a thin polymer of glass and plastic, to prevent arcing between

the blades which we re located in the upper b us of the unit.

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however, that even with the addition of the glastic between the upper and lower portions of the unit,

arcing could still occur. Mr. Redden also suggested that the equipment should have been designed

so that there was no way for it to be energized while the covers were removed. Mr. Redden also felt

that the unit itself was dangerous in that there was no reason for anyone to be able to remove the

panels while the unit was energized, and that this type of “dead-front panel” was available to Square

D.

III. Trial Court’s Ruling

The trial court granted summary judgment for Square D. In dismissing Mrs. Taylor’s lawsuit,

the trial court found:

We have examined the record, however, in detail, and continue to arrive at the

unmistakable conclusion that a substantial amount of the fault associated with the

death of Mr. Taylor unfortunately rests with the deceased. Realizing, of course, that

Mr. Taylor is not available to present his version of the facts, the clear evidence from

the surviving witnesses shows that Mr. Taylor was a very experienced electrician,

and knew, or certainly should have known, of the dangers he faced when he entered

a high voltage switching mechanism without following proper safety procedures.

Based on Mr. Taylor’s experience, it would appear that he knew, or should have

known, that the proper safety procedures had not been followed. Further, the

evidence is uncontroverted that Mr. Taylor was told in no uncertain terms that the

safety procedures had not yet been followed, and thus he was instructed to wait until

those safety procedures were followed, the unit was de-energized, and a helper was

provided to him.

The question before us, then, is whether as a matter of law an individual can be held

to be less than fifty percent at fault where, in a light most favorable to the Plaintiff,

the deceased was experienced, knew of the dangers, knew that the switch, or at least

a portion thereof, was energized, knew that proper safety procedures required de-

energizing the unit and a “lock out/tag out” procedure which was mandatory and

which the employer was preparing to implement had not been accomplished, and

where he was told not to enter the switch until it was de-energized, proper “lock

out/tag out” procedures were followed, and a helper was provided to him. The

employer, of course, is protected by the workers’ compensation statutes, and fault

cannot be assessed to the employer. The only other fault which could be apportioned

is to the manufacturer of the switch. Again in a light most favorable to the Plaintiff,

there is no evidence showing that the switch was defective or improperly

manufactured. The only fault attributable to the manufacturer of the switch, again

in a light most favorable to the Plaintiff, is through defective design. Whether the

design was defective, and, in effect, whether the manufacturer should have designed

the switch in a safer manner is a mixed question of law and fact. The amount of

fault, if any, attributable to the manufacturer for the defective design, is also a matter

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of fact to be determined by jury. Whether the total fault of the manufacturer,

however, rises to the level of fifty percent of the total fault, is a question of law which

the Court may determine on a motion for summary judgment. After consideration

of all of the evidence, we have reached the conclusion that the fault of the

manufacturer, as a matter of law, is considerably less than fifty percent.

In deciding this issue, we have taken the strongest legitimate view of the contested

issues in favor of the Plaintiff and against the Defendant. We have considered, in

accordance with the contentions of the Plaintiff, that David Vari removed panels on

the switch as asserted by Gerald Redden and contrary to the contentions of Square

D and the testimony of David Vari. We have considered, as the Plaintiff suggests,

that Square D should have manufactured the switch with a safety device which would

have sounded an alarm when the unit was energized and the panels were removed,

but we find this to be of little significance, because it is uncontroverted that Mr.

Taylor knew the unit was energized. We have further considered, as the Plaintiff

contends, that Square D could have manufactured the switch so that it was de-

energized when the panels were removed, but again find this design issue to be less

significant when compared with the fact that Mr. Taylor was an experienced

electrician, he knew the switch was energized, the switch bore more than one

warning, Mr. Taylor had been specifically told not to work on the switch until it was

de-energized and another electrician arrived to help, and lockout-tag out procedures

were implemented. We have also considered that a shield could have been put in

place between the top and bottom portions of the switch, again as the Plaintiff has

suggested, but also recognize that the evidence shows that holes would have to be cut

into such a shield to allow the switch to work properly, and arcing could still occur.

We believe the proximate cause of the accident was the action of Mr. Taylor in

performing work on a unit he knew was energized when he knew his work was in

violation of the directions of his supervisor, generally accepted lock out/tag out

procedures, the company safety policy, and warning labels on the switch itself.

Thus, tragic as the untimely death of Mr. Taylor is shown to be, we must reach the

unmistakable conclusion that as a matter of law he was in fact responsible for more

than fifty percent of the fault which resulted in his death, and thus the fault of Mr.

Taylor must be attributed to the Plaintiff, and the Plaintiff cannot recover.

On appeal, Mrs. Taylor argues that the ultimate cause of Mr. Taylor’s death was a defective

design in the equipment upon which he was working and that his death could have been avoided by

some simple design changes. She further argues that, based on the evidence available, a jury, not

the trial judge deciding a motion for summary judgment, should determine whether or not the

negligence of Mr. Taylor exceeded 50%. In response, Square D argues that the trial court was

correct in granting summary judgment because the undisputed facts demonstrate that the switchgear

on which Mr. Taylor was working was not defective or unreasonably dangerous. Square D also

argues that the undisputed facts show that the negligence of Mr. Taylor in ignoring the proper safety

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procedures, prominent warning signs, and explicit directions of his supervisor were the direct cause

of his death.

IV. Defect in Design

According to Tennessee law, set forth in the Tennessee Products Liability Act, see Tenn.

Code Ann. §§ 29-28-101 to -108, a manufacturer or seller of a product may be held liable for an

injury caused by its product only if the “product is determined to be in a defective condition or

unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code

Ann. § 29-28-105; Davis v. Komatsu America Industries Corp., 42 S.W.3d 34 (Tenn. 2001). A

plaintiff must thus show either that a product is defective or that it is unreasonably dangerous.

A product is considered “unreasonably dangerous” if:

[the] product is dangerous to an extent beyond that which would be contemplated by

the ordinary consumer who purchases it, with the ordinary knowledge common to the

community as to its characteristics, or that the product because of its dangerous

condition would not be put on the market by a reasonably prudent manufacturer or

seller, assuming that the manufacturer or seller knew of its dangerous condition.

Tenn. Code Ann. § 29-28-102(8). A product is not unreasonably dangerous because of a failure to

adequately warn of a danger or hazard that is apparent to the ordinary user. Tenn. Code Ann. § 29-

28-105(d).

A “defective condition,” on the other hand, is defined as “a condition of a product that

renders it unsafe for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-

102(2). In interpreting and applying the definition of defective condition, courts have recognized

that one factor to be considered is “consumer knowledge about the risks inherent in the use of (the)

product.” Royson v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988).

Further, the legislature has decided that in making the determination of whether a product

is defective or unreasonably dangerous,

the state of scientific and technological knowledge available to the manufacturer or

seller at the time the product was placed on the market, rather than at the time of

injury, is applicable. Consideration is given also to the customary designs, methods,

standards and techniques of manufacturing, inspecting and testing by other

manufacturers or sellers of similar products.

Tenn. Code Ann. § 29-28-105(b). In order to establish a defect in a product, the plaintiff must “trace

the injury to some specific error in construction or design of the [product] . . . .” Fulton v. Pfizer

Hosp. Prods. Group, Inc., 872 S.W.2d 908, 912 (Tenn. Ct. App. 1993) (quoting Browder v.

Pettigrew, 541 S.W.2d 402, 404 (Tenn. 1976)).

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The actual design of the product does not have to be perfect, accident proof, or incapable of

causing injury to be considered non-defective. See, e.g., Curtis v. Universal Match Corp., 778 F.

Supp. 1421, 1430 (E.D. Tenn. 1991) (holding “where it is simply shown that there is a better, safer,

or different design which would have averted the injury, this does not establish that there has been

a departure from the required standard of care”); Fulton, 872 S.W.2d at 912 (stating that a

“manufacturer is not an insurer of a product that is accident proof, or incapable of causing injury”);

Bishop v. Smith & Nephew Richards, Inc., No. 02A01-9405-CV-00108, 1995 WL 99222, at *9

(Tenn. Ct. App. Mar. 10, 1995) (no Tenn. R. App. P. 11 application filed) (finding that a

manufacturer is “not required to design a perfect or accident-proof product”); Gerdts v. Nelson, No.

03S01-9405-CV-00190, 1995 WL 146232, at *3 (Tenn. Ct. App. Apr. 4, 1995) (no Tenn. R. App.

P. 11 application filed).

This theory stems from Kerley v. Stanley Works, 553 S.W.2d 80, 84 (Tenn. Ct. App. 1977),

wherein this court quoted the following from 72 C.J.S. PRODUCTS LIABILITY § 21:

A manufacturer, . . . is not an insurer of the product he designs, and it is not required

that the design adopted be perfect, or render the product accident proof, or incapable

of causing injury, nor is it necessary to incorporate the ultimate safety features in the

product. Hence, a departure from the required standard of care is not demonstrated

where it is simply shown that there was a better, safer, or different design which

would have averted the injury.

In Kerley, the widow of a deceased subcontractor sued the manufacturer of an electric power

drill for the wrongful death of her husband, relying on the theories of strict liability and negligent

design. Mr. Kerley, the deceased, had purchased the drill and used it regularly in his work as a

subcontractor. After using the drill for about a year, it started malfunctioning. Mr. Kerley made

repairs on the drill and it appeared to be functioning normally until he took the drill up a twenty foot

ladder to drill holes in a metal plate on an overhead door. Mr. Kerley was electrocuted and fell from

the ladder, striking his head on the concrete floor where he died immediately. Mrs. Kerley argued

that the housing and the component parts of the drill were negligently designed, which resulted in

her husband’s death. Although Mrs. Kerley offered expert witnesses who testified that the wiring

in the drill was damaged after being caught between the handle and the housing of the drill when Mr.

Kerley was reassembling it after repairs, neither witness could express an opinion as to any defect

in the design of the drill which would make it inherently dangerous to the user. Quoting the above

language from C.J.S., this court affirmed the trial court’s grant of a directed verdict for the drill

manufacturer.

Thus, it is not enough for Mrs. Taylor to show that a better, safer, or different design to the

substation would have prevented her husband’s death; she must actually show that the product was

unsafe for normal or anticipatable handling. “The burden is on the plaintiff to ‘show that there is

something wrong with the product.’” Fulton, 872 S.W.2d at 911-12 (quoting Tatum v. Cordis Corp.,

758 F. Supp. 457, 461 (M.D. Tenn. 1991)). There was no evidence introduced in the trial court that

Square D failed to follow national safety standards for medium voltage equipment in designing the

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substation on which Mr. Taylor was working. To the contrary, the only expert testimony offered,

by Mr. Redden, confirmed that Square D had followed safety standards in designing the substation.

Mr. Redden could only offer his opinions on how the product could have been made safer by the

addition of dead front panels or glastic; he offered no proof of how the equipment, as it was on the

date of Mr. Taylor’s death, was defective or unreasonably dangerous. Further, there is no evidence

that the product was malfunctioning in any way. Consequently, we conclude that the plaintiff has

failed to establish the necessary elements to sustain a cause of action for defective design.

Even if Ms. Taylor had sufficiently established a claim to survive summary judgment on the

issue of Square D’s negligence, however, Square D was nonetheless entitled to summary judgment

for the other reason stated by the trial court.

V. Comparative Negligence

After Tennessee’s adoption of comparative fault in McIntyre v. Ballentine, 833 S.W.2d 52

(Tenn. 1992), where both the plaintiff and the defendant engaged in negligent conduct that

proximately caused the injuries complained of, the plaintiff cannot recover if his or her fault is equal

to or greater than the fault attributable to the defendant. Eaton v. McLain, 891 S.W.2d 587, 590

(Tenn. 1994). In Eaton, the Tennessee Supreme Court established or clarified the circumstance

under which a trial court can determine, as a matter of law, that the plaintiff’s fault is equal to or

greater than the defendant’s. The trial court is to take the strongest legitimate view of the evidence

in favor of the plaintiff and grant the defendant dismissal only if reasonable minds could not differ

as to the legal conclusions to be drawn from that evidence. Id. at 590. Further,

[i]n summary, the percentage of fault assigned to each party should be dependent

upon all the circumstances of the case, including such factors as: (1) the relative

closeness of the causal relationship between the conduct of the defendant and the

injury to the plaintiff; (2) the reasonableness of the party’s conduct in confronting a

risk, such as whether the party knew of the risk, or should have known of it; (3) the

extent to which the defendant failed to reasonably utilize an existing opportunity to

avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring a

hasty decision; (5) the significance of what the party was attempting to accomplish

by the conduct, such as an attempt to save another’s life; and (6) the party’s particular

capacities, such as age, maturity, training, education, and so forth.

Id. at 592. Thus, “[i]f the court determines that all reasonable jurors would find the plaintiff’s fault

was fifty percent or more, it must grant summary judgment because when the plaintiff’s fault is fifty

percent or more he or she can not recover and there is nothing for the jury to decide.” Carr v.

Ozburn-Hessey Storage Co., No. 01-A-01-9511-CV-00527, 1996 WL 383295, at *2 (Tenn. Ct. App.

Jul. 10, 1996) (no Tenn. R. App. P. 11 application filed).

Summary judgments enable courts to resolve cases on dispositive legal issues. Summary

judgment is proper in virtually any civil case that can be resolved on the basis of legal issues alone.

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Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);

Church v. Perales, 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). But, summary judgment should be

granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed

facts, support one conclusion - that the party seeking the summary judgment is entitled to a judgment

as a matter of law. Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001);

Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Goodloe v. State, 36 S.W.3d

62, 65 (Tenn. 2001); Staples v. CBL & Associates, 15 S.W.3d 83, 88 (Tenn. 2000).

Summary judgments enjoy no presumption of correctness on appeal. Scott v. Ashland

Healthcare Ctr., Inc., 49 S.W.3d 281, 284 (Tenn. 2001); Penley v. Honda Motor Co., 31 S.W.3d

181, 183 (Tenn. 2000). Accordingly, appellate courts must make a fresh determination that the

requirements of Tenn. R. Civ. P. 56 have been satisfied. Staples, 15 S.W.3d at 88; Hunter v. Brown,

955 S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). We must

consider the evidence in the light most favorable to the non-moving party, and we must resolve all

inferences in the non-moving party’s favor. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196

(Tenn. 2001); Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001). When

reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute

exists, we must then determine whether the fact is material to the claim or defense upon which the

summary judgment is predicated and whether the disputed fact creates a genuine issue for trial.

Byrd, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct.

App. 1998). Then, we, like the trial court, must review the evidence presented at the summary

judgment stage in the light most favorable to the non-moving party, here Ms. Taylor, afford all

reasonable inferences to that party, and discard all countervailing evidence. Bradshaw v. Daniel, 854

S.W.2d 865, 870 (Tenn. 1993); Byrd, 847 S.W.2d at 210-11.

There is no real factual dispute about how the accident herein happened. The undisputed

facts show that Mr. Taylor, an experienced electrician, trained multiple times in the proper safety

procedures, disobeyed the orders of his supervisor by choosing not to wait for assistance in the lock

out/tag out of the substation. The equipment carried a warning sign. There is no dispute that if the

substation had been locked out/tagged out or de-energized Mr. Taylor would not have been

electrocuted. There is no allegation that anything in the design of the equipment would have

prevented this simple routine safety precaution. Mr. Taylor’s own decision to commence work

without following the safety procedures led to his death. While we certainly acknowledge the

tragedy of the situation, there is no escaping the fact that the evidence clearly demonstrates that

reasonable minds could not differ as to the legal conclusions that must be drawn from the evidence.

The trial court properly granted summary judgment for Square D because Mr. Taylor’s negligence

was clearly greater than any negligence on the part of Square D. The judgment of the trial court is

affirmed and remanded. The costs of this appeal are taxed to the appellant, Susan Taylor.

__________________________________

PATRICIA J. COTTRELL, JUDGE

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