                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON

                                     June 6, 2002 Session

     RUSSELL M. LIPSEY, Individually and d/b/a SECURITY WATCH
                   and SECURITY WATCH, INC.
                                 v.
        PROTECH FIRE SYSTEMS, INC. and JERRY PANNELL

                       Appeal from the Circuit Court for Shelby County
                        No. 69579-3 T.D.   Karen R. Williams, Judge



                    No. W2001-01785-COA-R3-CV - Filed March 17, 2003


This is a negligence case. The owner of a three-story historic building was remodeling it. He called
a fire sprinkler company to move a sprinkler pipe. The repairman cut one of the sprinkler pipes and,
thinking it was a “dead pipe,” pushed it behind some sheetrock without capping it. The sprinkler
system was regulated by an air compressor that filled the pipes with pressurized air until the system
was triggered to allow water to flow through the pipes. The repairman left before the compressor
completely charged the system, that is, before the air pressure reached the required level to hold the
water back. Two days later, water began rushing out of a sprinkler pipe, causing extensive damage
to the building. The owner sued the fire sprinkler company for damage to the building and its
contents as well as for interruption of his business. At the trial, there was conflicting testimony
about whether the water came out of the pipe that the repairman cut or whether it came out of
another pipe. The jury found that both parties were zero percent responsible; thus, the owner
recovered no damages. The owner moved for judgment notwithstanding the verdict or for a new
trial. Both motions were denied. The owner appeals, and we affirm.

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and
DAVID R. FARMER , J., joined.

Edward M. Bearman, Memphis, Tennessee, for appellant, Russell M. Lipsey, Individually and d/b/a
Security Watch and Security Watch, Inc.

John R. Cannon, Jr., Memphis, Tennessee, for appellees, Protech Fire Systems, Inc. and Jerry
Pannell.
                                                         OPINION

         Plaintiff/Appellant Russell M. Lipsey (“Lipsey”) owns a three-story building at 85 S. Second
street in Memphis, Tennessee. The first floor of the building was leased as retail space to an art
gallery. Lipsey’s alarm sales company, Security Watch, Inc.,1 and his alarm monitoring company
were housed on the second story of the building, and the third floor was an apartment that was to be
Lipsey’s future home. Both the second and third floors were being remodeled. The building had a
skylight on the roof. The ceiling of the third floor was a short distance from the roof, and there was
a boxed-in cube between the third-floor ceiling and the skylight. The cube had a fire sprinkler
system pipe running across it. As part of the remodeling, Lipsey wanted to have the sprinkler pipe
removed from the skylight.

         The type of sprinkler system that Lipsey’s building had is known as a “dry” system. Water
flows into the system from the street level. Most of the time, however, this water is kept at bay by
a flap that is forced shut by compressed air coming from an air compressor attached to the fire
sprinkler pipe system. The air compressor, in the basement in Lipsey’s building, fills the system
with air. When the air pressure reaches a certain level, the compressor shuts off. Although the
system is considered “sealed,” inevitably it will have minor air leaks, and the air compressor will
turn on and off from time to time to maintain the pressure in the pipes. Because the air pressure in
the sprinkler system pushing down on the flap is higher than the pressure coming from the water at
the street level pushing up at the flap, the flap remains shut. When a fire occurs within the building,
a plastic ring on a sprinkler head melts, allowing the compressed air in the pipes to rush out at the
location of the sprinkler head. This results in the water pressure from below becoming greater than
the air pressure within the sprinkler system; consequently, the flap opens, allowing water to flow into
the system. The water fills the sprinkler system’s pipes and begins rushing out from the place in the
system where the compressed air first escaped, usually the sprinkler head, dousing the fire.

        To have the sprinkler pipe removed from the skylight for the remodeling, Lipsey called
Defendant/Appellee Protech Fire Systems, Inc. (“Protech”). On August 23, 1994, Protech sent its
employee, Jerry Pannell (“Pannell”) to Lipsey’s building to remove the pipe.2 Pannell, using a
cutting tool, cut and capped the pipe on the east side of the skylight. Then, using a hacksaw, he cut
the pipe on the west side of the skylight. In doing so, Pannell heard something fall behind the wall
onto the inside of the ceiling. He then pushed the remaining pipe behind the sheetrock wall
surrounding the inside of the skylight. Pannell believed that this pipe was a “dead pipe” and,
consequently, did not cap it.

       Pannell then went to the basement and turned on the air compressor to recharge the sprinkler
system. Before the air compressor reached the appropriate pressure for Lipsey’s system, Pannell left

         1
             Lipsey and S ecurity W atch, Inc . are hereinafter collectively referred to as “Lipsey.”

         2
           Panne ll was Protech’s em ployee, and both were represented by the same co unsel at the trial court. Because
of this, and because their arguments at the trial level were identical, we refer to Protech and Pannell collectively as
“Protech.” When referring solely to Pannell, we use only his name.

                                                               2
the building. Thus, when Pannell left, the sprinkler system had not finished filling with air, and he
did not know whether the system had any leaks.

        Some forty hours later, on August 25, 1994, two of Lipsey’s employees working on the third
floor below the skylight heard a “hissing” noise. They looked up to see water begin rushing out of
the pipe that was on the west side of the skylight. Although Pannell, two days earlier, had been able
to shut down the sprinkler system using a wheel valve in the basement, when Lipsey’s employees
attempted to do the same, they were unable to do so. Fire trucks and firefighters were dispatched
to the building as water flowed from the ceiling of the third floor, through the second and first floors,
and eventually to the basement. The fire department finally was able to stop the water flow by
placing a special valve over the pipe and closing the valve. The flooding caused significant
damages.

        Subsequently, Lipsey filed this lawsuit against Protech, seeking $250,000 in damages for the
damaged caused to the building and its contents, and $125,000 in damages for loss of business and
business interruption. Lipsey later amended the complaint to seek $1,110,000 for loss of business
and business interruption, for total damages of $1,360,000. Lipsey asserted that Protech negligently
caused the flooding, and also plead the doctrine of res ipsa loquitur. In its answer, Protech asserted
comparative fault, arguing that Lipsey’s employees working in the vicinity of the pipes near the time
of the accident had at least some responsibility for the flooding.

         The jury trial began on January 16, 2001 and lasted seven days. Pannell attended the trial but
was not called to the witness stand by either party. Portions of his videotaped deposition, however,
were played for the jury. In his deposition, Pannell testified that he was not aware of any rule about
the length of time he was to stay at the customer’s site after re-engaging the sprinkler system.
Pannell noted that, at the time he left Lipsey’s building, the sprinkler system read an air pressure
between twenty-seven and twenty-eight pounds per square inch (“p.s.i.”). When Pannell visited the
site after the accident, the pipe that he cut on the west side of the skylight was no longer there. There
was a pipe, however, attached to the ceiling farther back. Thus, a portion of pipe approximately six
feet long, extending from where Pannell originally cut the pipe to the now-existing pipe, was
missing.

        Lipsey testified that, on the day of the incident, he was summoned to the building. When he
arrived, he went to the third floor and saw water coming out of a pipe that was cut and was up
against the place where, prior to the incident, there had been sheetrock around the skylight.

        Earl Beck (“Beck”) and Larry Holloway (“Holloway”), construction workers employed by
Lipsey to do sheetrock work on the building, both testified at the trial. Beck testified that the plaster
around the skylight cube was deteriorating. Consequently, prior to the time Pannell cut the pipe, he
and Holloway installed wood supports around the skylight, and then attached new sheetrock on top
of the old plaster, cutting the sheetrock around the pipe. They planned to patch the holes left by the
pipe after Pannell finished removing it. On the day Pannell came to remove the pipe, Beck saw
Pannell cut the east side of the pipe and put a cap or a plug on the pipe. As to the west side of the


                                                   3
pipe, Beck did not see whether Pannell unscrewed or cut the pipe, but he saw Pannell shove the west
side of the pipe back behind the sheetrock wall. Beck asked Pannell about this pipe. In response to
Beck’s inquiry, Pannell told Beck that the pipe on the west side was “dead” and did not need to be
plugged. Beck noted that the next day, Wednesday, while he was down in the basement, the
sprinkler system air compressor was running. The following day, Thursday, after water began
coming out of the pipe near the skylight, Beck went to the basement with another of Lipsey’s
employees, and neither was able to cut off the water flowing through the sprinkler system pipes by
using the wheel valve.

        Lipsey’s employee Holloway testified that he was present during the conversation between
Pannell and Beck regarding the “dead” pipe. After Pannell left to go to the basement, Holloway
worked on the third floor for the remainder of the day and did not see Pannell. Two days later,
Holloway was working underneath the skylight when he heard a hissing sound. He testified that, a
few moments later, he saw water shooting out of the hole on the west side of the skylight. While
Beck went downstairs to try to shut off the water, Holloway climbed a ladder and looked through
an opening in the sheetrock. Holloway testified that he saw water spewing from the pipe that Pannell
had pushed back behind the wall, and saw that the pipe had cut marks on it. Holloway said that he
did not work on the pipe in question from the time Pannell worked on the pipe until the time water
began coming out of it.

        Protech called as witnesses two firefighters who were at the scene after the flooding began.
Donald W. Powers (“Powers”) testified that, at the time of the flood, the pipe he saw on the third
floor expelling water was a threaded pipe, and that he did not see any pipe with hacksaw marks on
it. He said that he could not turn off the water flow by using the wheel valve, and that the firefighters
used a “coupler” to shut off the water.

        Firefighter Michael Devore (“Devore”) also testified. Devore was questioned about whether
the pipe gushing water had a threaded end or a regular end. Devore could not recall whether it had
a threaded end, but he testified that he did not remember seeing hacksaw marks on the pipe. He
acknowledged that he had previously said that the pipe was threaded.

        Both parties offered expert testimony. Lipsey’s expert was Alan Pearlman (“Pearlman”), a
mechanical engineer. Pearlman testified that he had investigated approximately fifteen to twenty
sprinkler system failures. Pearlman first visited Lipsey’s building on September 29, 1999, five years
after the accident. In addition to visiting the building, Pearlman read a report by another engineer,
reviewed depositions and documents, and inspected a ten-foot portion of sprinkler pipe that Pannell
had removed from the skylight. Pearlman theorized that, contrary to Pannell’s belief at the time, the
pipe Pannell cut on the west side of the skylight and pushed behind the wall was not a dead pipe.
Pearlman’s theory was that when the cut end of the pipe sprung back towards the inside of the
sheetrock, it pushed up against the sheetrock with enough force to allow the system to sustain some
air pressure once the air compressor was engaged. He believed that, after some time, either moisture




                                                   4
or air passing through the sheetrock caused the sheetrock to erode, allowing the air in the pipe system
to escape, resulting in water rushing through the pipe system and coming out at the place previously
cut by Pannell.

       On cross-examination, Pearlman acknowledged that he had taken no measurements and
performed no tests to substantiate his theory. Pearlman also acknowledged that he did not attempt
to move the pipe, but that if the pipe would not move, his theory would be invalidated. Pearlman
admitted that his theory was inconsistent with the firefighters’ earlier testimony that the pipe spewing
water was a threaded pipe that was three feet behind the wall of the skylight.

        Protech’s expert was Dr. William Janna (“Dr. Janna”). Dr. Janna was a professor of
mechanical engineering and the Associate Dean for Graduate Studies at the College of Engineering
at the University of Memphis, and was widely published in the areas of fluid mechanics, heat
transfer, and design of fluid thermal systems.

        Dr. Janna reviewed depositions and reports, interviewed Pannell, took measurements at the
accident site on his first visit in April 2000, and conducted experiments. He testified that the piping
system was not flexible, and did not have a lot of “play” in it such that it could be moved around.
He criticized Pearlman’s theory because there was no sheetrock or wood for the pipe to butt against.
Dr. Janna said that even if the pipe on the west side had abutted against wood or sheetrock, it would
not create enough resistance to allow the pipe system to fill with the requisite amount of compressed
air. Dr. Janna tested this by using a piece of pipe approximately two and one-half feet long, capping
it on one end and then pushing the open end against a piece of wood. Using an air compressor, he
forced air into the pipe to determine how much air it could hold. In a second experiment, he used
a hammer to embed the open end of the pipe into the wood. In neither case did the pipe hold
upwards of twenty-eight p.s.i. of compressed air, the amount that Pannell testified was the air
pressure level when he left Lipsey’s building. Rather, fifteen p.s.i. was the maximum pressure Dr.
Janna could achieve. Dr. Janna testified that the only way the system could have charged up to
twenty-eight p.s.i. was if it had been completely sealed.3

        At the close of Lipsey’s proof, Protech moved for a directed verdict, arguing failure to show
causation. This motion was denied. At the close of Protech’s proof, Lipsey moved for a directed
verdict regarding Lipsey’s comparative fault. This motion was also denied. The trial judge noted
that there could be an inference that Lipsey was negligent because neither Pannell nor Protech had
been in the building between the time the flood started and the time when the firefighters arrived.
At the close of Lipsey’s rebuttal proof, Lipsey again moved for a directed verdict, asserting that
Protech had offered no proof of Lipsey’s negligence. Protech argued that the issue should go to the




         3
         The trial also included considerable testimony regarding whether Lipsey actually intended to continue
growing his alarm business and the value of his lost business because of the interruption. Additionally, there was
mention of Lipsey’s involvement in ano ther lawsuit in which Lipsey sought the same dam ages.

                                                          5
jury because the missing pipe indicated that someone had removed a piece of pipe, which then
caused the flood. The trial judge denied Lipsey’s motion, explaining:

       Inferences are the permitted bridges between one fact and another or between facts
       and a conclusion. . . . There are a number of facts that have been placed before this
       jury by various witnesses. Not all of those facts can coexist peacefully, let alone all
       the inferences that can be drawn from it. But I think the jury is here to sort that out
       and I’m going to let it go to the jury.

        The jury then deliberated. The jury determined that Protech was zero percent responsible for
the accident, and that Lipsey, likewise, was zero percent responsible for the accident. Lipsey moved
for judgment notwithstanding the verdict or, in the alternative, a new trial. Lipsey argued that he
established his prima facie case of negligence, and that Protech had not rebutted it. Lipsey also
argued that the jury’s verdict was not supported by the greater weight of the evidence, and also that
the trial court erred in failing to instruct the jury that they could draw a negative inference from
Pannell’s failure to testify. The trial court denied Lipsey’s motions, stating that

       the Court approves the verdict of the jury and finds that there is competent, material
       evidence to support the verdict of the jury so that the Motion for Judgment
       Notwithstanding Verdict should be overruled, and that the evidence preponderates
       in favor of the Defendants so that the Motion for New Trial should be denied.

Lipsey now appeals.

       On appeal, Lipsey argues that the trial court erred in denying his motion for judgment
notwithstanding the verdict and his motion for a new trial. Lipsey contends that the testimony of
Lipsey, Holloway, Beck, and Pearlman, combined with the presumption of res ipsa loquitur and
negligence per se, established his prima facie case of negligence, and that inferences from the
testimony of Protech’s witnesses were not sufficient to rebut it.

         The standard of review for a motion for judgment notwithstanding the verdict is the same as
that applied to a motion for directed verdict made during the trial. Holmes v. Wilson, 551 S.W.2d
682, 685 (Tenn. 1977). The court ruling on the motion is to review the record, construe the evidence
in the light most favorable to the non-moving party, allow all inferences in his favor, and remove any
countervailing evidence. Eaton v. McClain, 891 S.W.2d 587, 590 (Tenn. 1994); see Holmes, 551
S.W.2d at 685; Tenn. R. App. P. 13(d). After assessing this information, the appellate court reverses
the denial of the motion only if “reasonable minds could not differ as to the conclusions to be drawn
from the evidence.” Eaton, 891 S.W.2d at 590. Thus, putting aside for the moment the evidence
that supports a verdict in favor of the moving party, if the remaining direct, circumstantial, and
inferential evidence would tend to uphold a verdict in favor of the non-moving party, then the motion
must be denied. Fye v. Kennedy, 991 S.W.2d 754, 765-66 (Tenn. Ct. App. 1998). The appellate
court does not reweigh the evidence, nor does it reassess the credibility of witnesses, as it is the
responsibility of the jury to assess the weight, faith, and credibility of each of the witnesses. Tenn.


                                                  6
Dept. of Transp. v. Wheeler, No. M1999-00088-COA-R3-CV, 2002 Tenn. App. LEXIS 727, at *12
(Tenn. Ct. App. Oct. 11, 2002); see Shepherd v. Wal-Mart Stores, Inc., No. W1998-00903-COA-
R3-CV, 2000 Tenn. App. LEXIS 218, at *9 (Tenn. Ct. App. Mar. 31, 2000).

          We must also evaluate the application of the doctrine of res ipsa loquitur in this case. The
fact that an accident or injury occurred does not normally give rise to a presumption that the
defendant was negligent. Under the doctrine of res ipsa loquitur, which means the thing speaks for
itself, the circumstances surrounding an accident or injury permit an inference that the defendant was
negligent, in the absence of an explanation from the defendant. 57B Am. Jur. 2d, Negligence § 1819
(1989). It applies when an accident is of such a nature that, in the light of common experience, the
accident could not have occurred in the absence of negligence by the defendant. Id. §§ 1825-26.
The doctrine of res ipsa loquitur is a form of circumstantial evidence that permits, but does not
compel, a jury to infer negligence based upon the circumstances of an injury when direct evidence
is not available. Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999) (citations omitted).
Even when the presumption is permitted, the plaintiff still must prove circumstances on which a jury
might reasonably rely to conclude that the defendant was negligent. Id. “The weight of any
inference to be drawn from the evidence is for the determination of the jury.” Id.

         The determination of witness credibility clearly falls within the purview of the trier of fact,
here, the jury. Miller v. Williams, 970 S.W.2d 497, 499 (Tenn. Ct. App. 1998) (citing Reynolds v.
Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994)). “It is well established that when
reviewing a judgment based on a jury verdict, appellate courts are limited to determining whether
there is material evidence to support the verdict.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 898
(Tenn. 1992) (citations omitted). The Tennessee Supreme Court has held that:

       It is the time honored rule in this State that in reviewing a judgment based upon a
       jury verdict the appellate courts are not at liberty to weigh the evidence or to decide
       where the preponderance lies, but are limited to determining whether there is material
       evidence to support the verdict; and in determining whether there is material
       evidence to support the verdict, the appellate court is required to take the strongest
       legitimate view of all the evidence in favor of the verdict, to assume the truth of all
       that tends to support it, allowing all reasonable inferences to sustain the verdict and
       to discard all to the contrary. Having thus examined the record, if there be any
       material evidence to support the verdict, it must be affirmed; if it were otherwise, the
       parties would be deprived of their constitutional right to trial by jury.

Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978) (citations omitted).
Thus, if there is material evidence to support the jury verdict, the verdict will be affirmed.

       Lipsey’s counsel asserts that the trial court erred in denying Lipsey’s motion for judgment
notwithstanding the verdict because Lipsey established his prima facie case of negligence and then
Protech was unable to rebut it. Lipsey contends that the theory propounded by Protech’s expert, Dr.
Janna, is nothing more than a hypothetical based on assumed facts, and that the inferences


                                                   7
presumably made by the jury after listening to the firefighters’ testimony are in direct opposition to
the uncontradicted testimony of Holloway.

        In this case, there was clearly conflicting testimony about what occurred the day the water
began flooding Lipsey’s building. The jury was required to assess the credibility of the witnesses
proferred by both parties. The testimony from Lipsey’s witnesses tended to establish that the water
began coming out of the pipe that Pannell, believing the pipe was “dead,” cut and did not cap.
However, in reviewing whether there was material evidence to support the jury’s verdict, we
consider the evidence in the light most favorable to Protech. The firefighters testified that the pipe
from which the water was flowing had thread marks on it, and that the threaded pipe was a few feet
back from the wall of the skylight, indicating that a portion of the pipe was missing. This missing
pipe was never recovered. Both parties offered the testimony of expert witnesses. The testimony
of Protech’s expert, Dr. Janna, is clearly sufficient for the jury to conclude that the theory of Lipsey’s
expert, Mr. Pearlman, had been discredited. This evidence is sufficient for the jury to conclude that
the pipe from which the water burst forth was not the pipe that Pannell cut, and that therefore,
Protech was not responsible for the flooding.

        Lipsey argues that a prima facie case of negligence was established under the doctrine of res
ipsa loquitur. Assuming arguendo that this was the case, the evidence was sufficient to rebut any
presumption that the accident resulted from Pannell’s negligence. Under all of these circumstances,
we must conclude that the trial court did not err in denying Lipsey’s motion for judgment
notwithstanding the verdict.

         Lipsey also argues that the trial court erred in denying his motion for a new trial, contending
that the trial judge did not properly act as the thirteenth juror. In acting as the thirteenth juror, the
trial judge independently evaluates the evidence and assesses the credibility of witnesses, and does
not give deference to the jury’s determinations. Fye v. Kennedy, 991 S.W.2d 754, 766 (Tenn. Ct.
App. 1998). If the trial judge finds that the preponderance of the evidence goes against the jury
verdict, he is required to set aside the verdict and grant a new trial. Id.; see also Ridings v. Norfolk
S. Ry. Co., 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994).

        A motion for new trial is reviewed on appeal by determining whether the trial judge properly
acted as the thirteenth juror. Woolfork v. Hampton Inns, Inc., C.A. No. 02A01-9411-CV-00266,
1996 Tenn. App. LEXIS 72, at *2 (Tenn. Ct. App. Feb. 7, 1996). Here, the trial judge’s comments
show clearly that she evaluated the evidence independently and acted appropriately as the thirteenth
juror.

         Lipsey argues next that the trial court erred in declining to give the jury a missing witness
instruction based on Pannell’s failure to testify. The missing witness instruction permits the
inference that a witness’s testimony would be adverse to the party that failed to call the witness when
the witness is available and possesses “peculiar knowledge concerning the facts essential to a party’s
case . . . especially if the witness would naturally be favorable to the party’s contention . . . .” T.H.
Eng’g & Mfg. v Mussard, No. E2001-02406-COA-R3-CV, 2002 Tenn. App. LEXIS 367, at *10-11


                                                    8
(Tenn. Ct. App. May 23, 2002) The missing witness rule, however, is “inapplicable where the
witness was equally available to both parties and it seems no more likely that his testimony would
favor the plaintiff than the defendant.” Bland v. Allstate Ins. Co., 944 S.W.2d 372, 379 (Tenn. Ct.
App. 1996) (citing Waller v. Skeleton, 212 S.W.2d 690, 697 (Tenn. Ct. App. 1948)).

         Here, the evidence does not indicate that Pannell’s knowledge was more favorable to one
party or the other. Moreover, Pannell was at the trial on each day and was available to be called to
testify by Lipsey as well as Protech. This argument is without merit.

      Accordingly, we conclude that the trial court did not err in denying Lipsey’s motion for
judgment notwithstanding the verdict, nor in denying Lipsey’s motion for a new trial.

       The judgment of the trial court is affirmed. Costs are taxed to appellant, Russell M. Lipsey,
Individually and d/b/a Security Watch and Security Watch, Inc., and their surety, for which execution
may issue, if necessary.




                                                      ___________________________________
                                                      HOLLY KIRBY LILLARD, JUDGE




                                                 9
