                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    August 29, 2001 Session

      GEORGE MICHAEL TIPTON, ET AL. v. AXIS FABRICATION &
                 MACHINE COMPANY, ET AL.

                       Appeal from the Circuit Court for Blount County
                           No. L-11629     W. Dale Young, Judge

                                  FILED NOVEMBER 29, 2001

                                  No. E2001-00258-COA-R3-CV




HOUSTON M. GODDARD , P.J., Concurring in Part and Dissenting in Part

      I concur in the majority opinion insofar as it vacates the directed verdict in favor of the
Defendant Thomas. I would, however, affirm the directed verdict as to the Defendant Axis.

       The majority opinion predicates its determination as to Axis on the ground that "a reasonable
jury could conclude that Axis was vicariously liable for Thomas’ culpable conduct and/or that it
breached its duty of reasonable care by allowing someone to utilize a machine without appropriate
warning and/or by failing to replace the missing guard on the machine.”

         As to the first point, I find nothing in the record which would support a finding of vicarious
liability. While it is true Mr. Thomas is an employee of Axis and is a supervisor of Mr. Tipton, on
the occasion of the accident he was not acting as Mr. Tipton’s supervisor and, as pointed out in the
majority opinion, was not in the course of his employment with Axis.

        With regard to appropriate warning, I believe that the notice on the machine “Do not place
hand near moving parts” was a sufficient warning to the Plaintiff. I think this particularly true where
the warning uses the word “near,” and the proof shows that the Plaintiff’s fingers were within one
or two inches of the moving parts when he was injured.

       As to the failure to replace the guard on the machine, the unrefuted proof shows that other
and newer shears are not even equipped with the guard that was missing.
        For the foregoing reasons I would vacate the judgment as to Mr. Tipton and affirm it as to
Axis.



                                             _________________________________________
                                             HOUSTON M. GODDARD, PRESIDING JUDGE




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