The opinion
IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________
BOBBIE J. BYRD and WILLIE BYRD,
Plaintiffs-Appellees,
Shelby Circuit No. 42947 T.D.
Vs. C.A. No. 02A01-9610-CV-00252
FIRST TENNESSEE BANK, FILED
Defendant-Appellant. June 20, 1997
____________________________________________________________________________
Cecil Crowson, Jr.
FROM THE CIRCUIT COURT OF SHELBY COUNTYAppellate C ourt Clerk
THE HONORABLE JOHN McCARROLL, JR.
Jeffrey Jones of Memphis
For Appelles
William M. Jeter and Richard Sorin; Glassman, Jeter,
Edwards & Wade, P.C., of Memphis
For Appellant
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
HOLLY KIRBY LILLARD, JUDGE
This is a premises liability action brought by plaintiffs, Bobbie J. Byrd and husband,
Willie Byrd, against defendant, First Tennessee Bank, for Mrs. Byrd’s injuries sustained on June
12, 1991.1 Mrs. Byrd, seeking information concerning the bank’s certificates of deposit, was
directed to take a seat in the waiting area of the Raleigh Branch of the First Tennessee Bank.
When she sat down in the area, the chair collapsed, and Mrs. Byrd fell to the floor sustaining
injuries. The Byrds filed suit against First Tennessee in circuit court on December 11, 1991 and
alleged that First Tennessee failed to properly maintain and inspect the chair, failed to warn Mrs.
Byrd of a defective chair, and failed to provide a safe chair for Mrs. Byrd. The Byrds aver that
the alleged acts of negligence were the direct and proximate cause of Mrs. Byrd’s injuries.
By order entered June 2, 1993, the trial court granted partial summary judgment in favor
of First Tennessee regarding all allegations contained in the original complaint. By the same
order, the trial court permitted the Byrds to amend their complaint to allege the additional legal
doctrine of res ipsa loquitur. The Byrds filed an amended complaint alleging res ipsa loquitur
on June 10, 1993. A jury trial was held on May 22 and 23, 1996, and the jury returned a verdict
in favor of Mrs. Byrd for $100,000.00 and in favor of Mr. Byrd for $15,000.00. The trial court
entered judgment on the jury verdict and subsequently denied First Tennessee’s motion for a new
trial and for judgment notwithstanding the verdict. First Tennessee has appealed, and the only
issue for review is whether the trial court erred in denying First Tennessee’s motion for a
directed verdict and for judgment notwithstanding the verdict.
Courts reviewing a motion for directed verdict may not weigh the evidence, Benton v.
Snyder, 825 S.W.2d 409, 413 (Tenn. 1992); Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn.
1977), or evaluate the credibility of the witnesses. Benson v. Tennessee Valley Electric Coop.,
868 S.W.2d 630, 638-39 (Tenn. App. 1993). In City of Bartlett v. Sanders, 832 S.W.2d
546 (Tenn. App. 1991) this Court said:
The rule for determining a motion for directed verdict requires
the trial judge and the reviewing court on appeal to look to all of
the evidence, taking the strongest legitimate view of it in favor of
the opponent of the motion and allowing all reasonable inferences
from it in his favor. The court must discard all countervailing
evidence, and if there is then any dispute as to any material
determinative evidence or any doubt as to the conclusion to be
drawn from the whole evidence, the motion must be denied. A
verdict should not be directed if there is any material evidence in
the record that would support a verdict for the plaintiff under any
of plaintiff’s theories.
1
Mr. Byrd’s suit is for loss of services and consortium.
2
Id. at 549 (citations omitted).
The res ipsa loquitur doctrine is a specialized doctrine that provides the plaintiff with an
inference arising from circumstantial evidence enabling the jury to find that the defendant was
negligent if the plaintiff proves certain elements. Poor Sisters of St. Francis v. Long, 230
S.W.2d 659, 663 (Tenn. 1950); Summit Hill Assocs. v. Knoxville Utils. Bd., 667 S.W.2d 91, 95-
96 (Tenn. App. 1983). The doctrine is based on everyday experience and requires no more than
a common sense appraisal of the strength of the plaintiff’s circumstantial evidence. Quinley v.
Cocke, 183 Tenn. 428, 438, 192 S.W.2d 992, 996 (1946); Memphis St. Ry. Co. v. Stockton, 143
Tenn. 201, 206-07, 226 S.W. 187, 189 (1920); Stinnett v. Wright, 59 Tenn. App. 118, 125, 438
S.W.2d 357, 361 (1968); Davis v. Sparkman, 55 Tenn. App. 65, 70, 396 S.W.2d 91, 93 (1964);
Boykin v Chase Bottling Works, 32 Tenn. App. 508, 524, 222 S.W.2d 889, 896 (1949).
Under the doctrine of res ipsa loquitur, a plaintiff need not prove specific acts of
negligence. Summitt Hill Assocs., 667 S.W.2d at 96. Instead, the evidence must be sufficient
to enable a fact-finder to conclude that the injury was caused, more probably than not, by the
defendant’s negligence. Stinnett, 438 S.W.2d at 361. The necessary requirements for
application of the doctrine of res ipsa loquitur are (1) that there must be a “thing” causing the
injury; (2) the “thing” must be under the exclusive control of the defendant, and (3) the “thing”
must be shown to be of such a nature that injury does not ordinarily result from its careful
management. Armes v. Hulett, 843 S.W.2d 427, 432 (Tenn. App. 1992).
The strength of the evidence will vary with the facts of each case, and the strength of the
inference of the defendant’s negligence will likewise vary from reasonable probability to
practical certainty. Sullivan v. Crabtree, 36 Tenn. App. 469, 477, 258 S.W.2d 782, 785 (1953).
However, a plaintiff must present enough evidence so as to enable the fact-finder to make more
than a sheer leap of faith. Underwood v. HCA Health Services of Tenn., Inc., 892 S.W.2d 423,
427 (Tenn. App. 1994). Res ipsa loquitur does not apply in those situations where reasonable
persons could not conclude that the defendant’s negligence, more probably than not, caused the
plaintiff’s injury. Id. Thus, the doctrine does not apply in cases where the plaintiff’s injury could
reasonably have occurred even without the defendant’s negligence. Id.
First Tennessee asserts that the trial court erred in allowing the case to go to the jury
because the Byrds failed to satisfy two essential elements of res ipsa loquitur. First, the Byrds
3
did not introduce evidence to show that the instrumentality (chair) was of such a nature that
injury does not ordinarily result from its careful management, and second, the evidence
established that the chair was not under the exclusive management and control of First
Tennessee.
Possessors of property and those acting on their behalf owe a duty of reasonable care to
patrons, and this duty includes the duty to maintain the premises in a reasonably safe condition,
the duty to inspect the premises, the duty to discover dangerous conditions reasonably
recognizable by common experience and ordinary prudence, and the duty to either remove or to
warn of the dangerous condition the possessors know or should reasonably know about. Smith
v. Inman Realty Co., 846 S.W.2d 819, 823 (Tenn. App. 1992).
In the case before us, First Tennessee furnished the chair for use by its customers. Mrs.
Byrd was specifically invited to take a seat in the waiting area. The record establishes that the
chair in question had been in the bank for as long as five years. Mrs. Byrd testified that after the
chair collapsed, she noticed a crack or split in the seating area of the chair. A First Tennessee
employee, however, testified that she observed Mrs. Byrd sit in the chair, that the front legs of
the chair somewhat protruded or popped out, and that Mrs. Byrd, in fact, did not fall all the way
to the floor. With either scenario, it appears that there was some defect in the chair. We find it
difficult to understand how a chair can collapse in the absence of some structural defect.
Certainly a chair in a commercial establishment is subjected to rather constant or prolonged use,
and those furnishing such a chair to patrons of the establishment should be aware that chairs are
not indestructible, but can become unstable because of defects resulting from use. It does appear
that a reasonable inspection of the chair would reveal a defect or condition of a chair joint that
would allow the front legs to protrude or pop out as First Tennessee’s employee indicated the
subject chair did. First Tennessee’s proof is that it had no established procedure for inspection
of the facilities for its customers, nor was there any proof that an inspection of this particular
chair or the chairs in this area were made at any time reasonably preceding the accident.
A plaintiff relying on res ipsa loquitur is not required to rule out all nonnegligent causes
for the occurrence, but need show only that the defendant’s negligence more probably than not
caused the injury. Underwood, 892 S.W.2d at 426-27. In Sullivan v. Crabtree, this Court said:
The effect of a case of res ipsa loquitur, like that of any other
4
case of circumstantial evidence, varies from case to case,
depending on the particular facts of each case; and therefore such
effect can no more be fitted into a fixed formula or reduced to a
rigid rule than can the effect of other cases of circumstantial
evidence. The only generalization that can be safely made is that,
in the words of the definition of res ipsa loquitur, it affords
“reasonable evidence,” in the absence of an explanation by
defendant, that the accident arose from this negligence.
The weight or strength of such “reasonable evidence” will
necessarily depend on the particular facts of each case, and the
cogency of the inference of negligence from such facts may of
course vary in degree all the way from practical certainty in one
case to reasonable probability in another.
36 Tenn. App. at 476-77, 258 S.W.2d at 785.
A chair furnished for use of business patrons simply does not ordinarily collapse if it has
been properly managed. This statement is supported by the holding of this Court in Parker v.
Warren, 503 S.W.2d 938 (Tenn. App. 1973). In Parker, plaintiff was attending a wrestling
match and was seated in bleachers furnished for spectators. Id. at 941. The board upon which
she was seated broke, and plaintiff fell six or eight feet to the floor below, sustaining injuries.
Id. Plaintiff’s suit alleged that the bleachers were under the exclusive control of defendants and
that defendants failed in their duty to keep the bleachers in a reasonably safe condition. Id. After
a judgment on the jury verdict for the plaintiff, the defendant appealed, and one of the
assignments of error was that the trial court erred in allowing the case to go to the jury on the
doctrine of res ipsa loquitur. Id. Affirming the trial court, this Court said:
We hold it to be an unusual occurrence for a seat at a wrestling
match to break under the weight of the patrons thereon, and in the
ordinary course of things this does not happen. Where the thing
causing the harm is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of
things does not happen if those who have the management use
proper care, if affords reasonable evidence, in the absence of
explanation by he defendant, that the accident arose from want of
care. Southern Gas Corporation v. Brooks (1961), 50 Tenn.
App. 1, 359 S.W.2d 570. The foregoing statement of the doctrine
of res ipsa loquitur is applicable to this lawsuit, and the
happening of the event under the circumstances stated would
warrant an inference of negligence upon the part of the defendants
Berry and Warren. It is not necessary that the plaintiff prove a
specific at of negligence; the inference makes a jury question.
When, as here, the prerequisites of the doctrine are met the
defendant must come forward with explanatory proof, and the
jury is permitted to choose the inference of the defendant’s
negligence in preference to other permissible or reasonable
inferences. Coca-Cola Bottling Works v. Sullivan (1942), 178
Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200.
503 S.W.2d at 942. We believe the proof in this case satisfies the requirements set out in Parker.
5
First Tennessee also asserts that the Byrds failed to prove that the bank had exclusive
control of the chair at the time of the accident. In Boykin v. Chase Bottling Works, 32 Tenn.
App. 508, 222 S.W.2d 889 (1949), this Court in considering the requirement concerning control
by the defendant of the instrumentality causing the injury said:
With respect to this requirement, Prof. Prosser, in his treatise
on Torts, page 298, says: “‘Control’ is a more or less flexible
term, and has been interpreted to mean merely that the defendant
must have the right of control and the opportunity to exercise it,
as in the case of a principal who is present when his agent is
driving a car, or a landowner who permits visitors to come upon
his premises. Some courts have carried ‘control’ to ridiculous
lengths by requiring that the defendant be in possession of the
instrumentality at the time of the accident -- thus a customer who
sits down in a chair in a store has been denied recovery when it
collapses. Of course, this is wrong; it loses sight of the real
purpose of the requirement in the attempt to reduce it to an
absolute rule. All that is necessary is that the defendant have
exclusive control of the factors which apparently have caused the
accident; and one who supplies a chattel to another may have had
sufficient control of its condition although it has passed out of his
possession.”
32 Tenn. App. at 525-26, 222 S.W.2d at 897.
As previously noted, the defendant in the case before us maintained the chair in question
in an area assigned for waiting customers and furnished the chair for the use of the customers
while waiting. First Tennessee was in charge of the chairs and had the opportunity to inspect and
ascertain whether the chairs were safe for the use intended. In effect, First Tennessee had
exclusive control of the factors which could have reasonably caused the accident. The mere fact
that third parties had access to the chair does not preclude First Tennessee from having exclusive
control over the chair within the meaning of the doctrine of res ipsa loquitur. See Trujeque v.
Service Merchandise Co., 872 P.2d 361, 366 (N.M. 1994). In Gresham v. Stouffer Corp., 241
S.E.2d 451 (Ga. Ct. App. 1978), the Georgia Court of Appeals addressed the ownership,
operation and maintenance of a chair and stated:
[T]he defendant owned and operated the restaurant. It is also
clear that the chair was furnished by the restaurant to the plaintiff
for his use as a business invitee. Under these circumstances, a
jury would be authorized to conclude that the chair was in the full
control of the defendant and that the defendant was responsible
for its maintenance.
Id. at 452. Likewise, a New York court addressed a similar issue and held that evidence that a
private club owned a chair that broke, that the club’s employees took the broken chair after the
6
accident, and that no evidence was offered to support an inference of another cause of the
accident were sufficient to demonstrate ownership and control and to warrant submission of the
case to the jury under the doctrine of res ipsa loquitur. Finocchio v. Crest Hollow Club at
Woodbury, Inc., 584 N.Y.S.2d 201, 202 (N.Y. App. Div. 1992).
Chairs are designed to hold their occupants, not to collapse, and chairs are not expected
to collapse while being subjected to their intended use in the normal and customary manner.
Pear v. Labiche’s Inc., 301 So. 2d 336, 338 (La. 1974).
A chair collapse is something that normally does not occur in the absence of a defect in
the chair that normally could be ascertained by inspection, and there is evidence that the chair
in this case was in the exclusive control of First Tennessee. Once the Byrds established these
elements, they satisfied their burden of making a prima facie case from which the jury could
infer negligence. It then was incumbent upon First Tennessee to come forward with explanatory
proof. Parker, 503 S.W.2d at 942. The doctrine of res ipsa loquitur does not change the
plaintiff’s burden of proving negligence by a preponderance of the evidence; it merely shifts the
burden of going forward to the defendant, who risks losing the case if insufficient proof is
submitted to counter the inference created by res ipsa loquitur. Scarbrough v. City of
Lewisburg, 504 S.W.2d 377, 382 (Tenn. App. 1973).
Accordingly, the trial court correctly denied First Tennessee’s motion for directed
verdict. The judgment of the trial court is affirmed, and the case is remanded to the trial court
for such further proceedings as are necessary. Costs of appeal are assessed against First
Tennessee.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
HOLLY KIRBY LILLARD, JUDGE
7