Hardesty v. Service Merchandise Co., Inc.

• Court: Court of Appeals of Tennessee
• Writing for the Court: FARMER; LILLARD; SUMMERS; SUMMERS
• Citation: 953 S.W.2d 678
• Parties: Erma HARDESTY and Jim Hardesty, Plaintiffs/Appellants, v. SERVICE MERCHANDISE COMPANY, INC., Defendant/Appellee.
• Decision Date: 05 February 1997

Page 678

953 S.W.2d 678 Erma HARDESTY and Jim Hardesty, Plaintiffs/Appellants,
v.
SERVICE MERCHANDISE COMPANY, INC., Defendant/Appellee. Court of Appeals of Tennessee,
Western Section, at Jackson. Feb. 5, 1997.
Application for Permission to Appeal
Denied by Supreme Court
June 30, 1997.

Hal Gerber, Lewie R. Polk, III, Memphis, Shawn Ellis, Wilhoit Edumundson Terando & Hopkins, Poplar Bluff, MO, for Plantiffs/Appellants.

Gail O. Mathes, Memphis, for Defendant/Appellee.

FARMER, Judge.

This appeal is taken from the trial court's order of June 7, 1995, granting summary judgment in favor of Defendant Service Merchandise Company, Inc. (hereinafter, "Service Merchandise"). Specifically, the trial court found that there was no proof of a dangerous condition created by Service Merchandise and no proof that Service Merchandise had either actual or constructive notice that a dangerous condition existed. Upon consideration of the record before us, the trial court's order is affirmed.

FACTS

Erma Hardesty (hereinafter, "Mrs. Hardesty" or "Hardesty"), traveled from her residence in Missouri to Memphis with her daughter and grandson. While at the Mall of Memphis, Mrs. Hardesty, her daughter and grandson went shopping at the Service Merchandise store. They entered the store in search of the toy department and, after receiving directions, the party proceeded down one of the aisles. Mrs. Hardesty had traveled a few feet down the aisle when she fell forward and landed on her left hip. As Mrs. Hardesty testified at trial, "All at once I was just falling and I didn't know why." As a result of the fall, Mrs. Hardesty sustained a fractured hip which required surgery and hospitalization.

Mrs. Hardesty filed suit to recover for her injuries in which she alleged negligence on the part of Service Merchandise in failing to keep its store free of dangerous conditions. Her husband sought damages for loss of consortium. The jury rendered a verdict attributing 95% of the fault for the accident in question to Service Merchandise and 5% to Mrs. Hardesty. The jury awarded $250,000 in damages to Mrs. Hardesty and $150,000 in damages to her husband.

Service Merchandise filed a motion for directed verdict and later filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial. The trial court found it impossible to determine remitter because of the excessiveness of the judgment and granted the motion for new trial. Service Merchandise filed a motion for new trial by a different judge. The motion was granted, and the cause transferred to Division 7 of the Shelby County Circuit Court on November 23, 1994. Service Merchandise then filed a motion for summary judgment which was granted.

ISSUES ON APPEAL

Appellants' issues on appeal are as follows:

1. Did the original trial court err in granting Defendant's motion for new trial based only on its finding that the damages awarded to Plaintiffs were excessive?

2. After transfer, did the second trial court err in granting defendant's motion for [summary] judgment?

Appellee frames the issues as:

1. The trial court properly ordered a new trial on the basis that the damages awarded by the jury were excessive.

A. The trial court, as thirteenth juror, was required to grant Defendant's motion for new trial.

B. The evidence in this cause was inadequate to support the jury award with respect to Erma Hardesty's claim and the claim of Jim Hardesty, her husband, for loss of consortium.

C. The excessiveness of the damages awarded by the jury justified the court's finding that the jury was motivated by passion and prejudice.

2. Defendant was entitled to judgment as a matter of law on the grounds that Plaintiff had no evidence of notice, either constructive or actual.

A. The original trial court erred in denying Defendant's motion for directed verdict and [judgment] notwithstanding the verdict.

B. The trial court on transfer properly granted Defendant's motion for summary judgment in this cause.

Page 681

ARGUMENT

In considering this appeal, the Court first turns its attention to the issue of whether the trial court properly granted Service Merchandise's motion for a new trial. The order granting Defendant's motion for new trial stated:

This matter comes before the Court on DEFENDANT'S MOTION TO SET ASIDE THE VERDICT, FOR NEW TRIAL, OR IN THE ALTERNATIVE, FOR REMITTITUR PURSUANT TO THE PROVISIONS OF RULE 59 OF THE TENNESSEE RULES OF CIVIL PROCEDURE, from all of which the Court determines that the amount of the judgment awarded to Plaintiffs was so excessive that the Court was unable to determine a reasonable remittitur under the circumstances of this case. Therefore, this Court grants Defendant's Rule 59 Motion for a New Trial.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Defendant Service Merchandise's Motion for a New Trial be and is hereby granted.

The trial court acts as thirteenth juror and, in cases where the trial court deems it appropriate, it may set aside a jury's verdict and order a new trial. James E. Strates Shows, Inc. v. Jakobik, 554 S.W.2d 613, 616 (Tenn.1977); Sherlin v. Roberson, 551 S.W.2d 700 (Tenn.Ct.App.1976). Therefore, if the trial court disagrees with the amount of the verdict, finding it to be either excessive or inadequate, the trial court may set aside that judgment. Foster v. Amcon Int'l., Inc., 621 S.W.2d 142, 148 (Tenn.1981). As the Supreme Court noted in Foster, additurs and remittiturs were designed to correct the excessiveness or inadequacy of a jury's verdict. However, the trial court should award a new trial rather than suggest a remittitur or additur if the adjusted amount of the judgment would bear no relation to the jury verdict. Id. at 148.

In Guess v. Maury, 726 S.W.2d 906 (Tenn.App.1986), this Court addressed a situation similar to the case at bar. In that case, the jury returned a verdict for $950,000 for one plaintiff and for $83,000 for another plaintiff. Id. at 907. The trial court suggested a remittitur of the damage awards to $235,000 and $25,000, respectively. Id. at 911. On appeal, this Court noted that a remittitur which amounted to a 75% reduction in the amount of the jury award was excessive in that it destroyed the jury's verdict. Therefore, we found that the trial court should have granted a new trial. Id. at 913.

In the instant case, the trial court determined "that the amount of the judgment ... was so excessive" that the trial court was unable to determine a reasonable remittitur. Therefore, rather than order a remittitur, the trial court ordered a new trial. Because the trial court, acting in its role as thirteenth juror, would not have accepted the jury's verdict and clearly expressed this intent, we find that the trial court properly awarded Defendant a new trial.

Having determined that the trial court did not err in granting Defendant's motion for new trial, we now address the issue of whether Service Merchandise had notice of the allegedly dangerous condition. We find that Hardesty failed to establish that Service Merchandise had either actual or constructive notice of an unsafe or unreasonably dangerous condition on its premises at the time of the injury. Merchants owe customers a duty "to exercise reasonable care to keep the premises in a reasonably safe and suitable condition, including the duty of removing or warning against a dangerous condition traceable to persons for whom the proprietor is not responsible ... if the circumstances of time and place are such that by the exercise of reasonable care the proprietor should have become aware of such conditions." Self v. Wal-Mart Stores, Inc., 885 F.2d 336, 338 (6th Cir.1989); Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn.1986), quoting Allison v. Blount Nat'l Bank, 54 Tenn.App. 359, 390 S.W.2d 716, 718-19 (1965). A merchant is not an insurer of the safety of its customers, and it is not to be presumed that the proprietor of a store like Service Merchandise is instantly aware of all that transpires within its establishment. Self, 885 F.2d at 339; Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.App.1980); Patterson

Page 682

v. Kroger Co., 54 Tenn.App. 243, 389 S.W.2d 283 (1964).

In order to prevail against the owner or operator of a premises for negligence in allowing a dangerous or defective condition to exist on the premises, the plaintiff must establish (1) that the defendant created the condition or (2) that the defendant had actual or constructive notice of the condition prior to plaintiff's injury. Self v. Wal-Mart Stores, Inc., 885 F.2d 336, 338 (6th Cir.1989); Chambliss v. Shoney's, Inc., 742 S.W.2d 271, 273 (Tenn.App.1987); Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn.App.1985); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.App.1980); Paradiso v. Kroger Co., 499 S.W.2d 78 (Tenn.App.1973). Plaintiffs allege that Mrs. Hardesty tripped over a bed rail that was on display at Defendant's store. Assuming, arguendo, that the bed rail was the offending object, there has been no proof as to who placed the bed rail in the position it was in when Mrs. Hardesty fell over it. No evidence was introduced to show that Service Merchandise either created the condition or had actual...