                    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
