                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 August 25, 2011 Session

         JAMES JOHNSON AND WIFE, ELAINE JOHNSON v. THE
                  TORRINGTON COMPANY, ET AL.

                    Appeal from the Circuit Court for Giles County
                   No. CC10292     Robert Lee Holloway, Jr., Judge


                  No. M2010-01924-COA-R3-CV - Filed June 19, 2012


The plaintiff was severely injured while working on the premises of his employer. Because
the employer was immune from liability in tort under the Workers’ Compensation statutes,
the employee’s negligence suit named as defendants two other companies whose equipment
was implicated in his injury. After a five-day trial, the jury found that the employer was
solely at fault for the plaintiff’s injuries, resulting in no award. The plaintiff then filed a
motion for new trial. The trial court granted the motion ten months after it was filed,
declaring that in his capacity as the thirteenth juror he had found the verdict to be against the
weight of the evidence. The case was tried before a second jury, which reached a different
verdict, finding that one of the defendant companies was 90% at fault for the plaintiff’s
injury while the plaintiff himself was 10% at fault. The net verdict for the plaintiff amounted
to $2,925,000. The defendant company argues on appeal that the trial court erred in vacating
the first jury verdict, that the second jury verdict was “contrary to the manifest weight of the
evidence,” and that the amount of the verdict was excessive. We affirm the jury verdict and
the judgment based on it.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

James Campbell Bradshaw, Michael David Hornback, Nashville, Tennessee, for the
appellant, The Torrington Company.

George Benson Boston, Christopher V. Sockwell, Ryan Perry Durham, Lawrenceburg,
Tennessee, for the appellees, James Johnson and wife, Elaine Johnson.
                                              OPINION

                                   I. A W ORKPLACE A CCIDENT

       On July 24, 2000, plaintiff James Johnson, a heavy equipment operator and veteran
employee of Browning Ferris Industries (BFI) was helping to unload waste from his
employer’s trucks at the company’s transfer station in Giles County. BFI driver Clayton
Eslick drove a truck into the station with a waste container that had to be unloaded. The
container was filled with a load of swarf1 that the driver had picked up at a metal bearing
factory in Pulaski owned by the defendant Torrington Company.

        Mr. Johnson supervised the operation, standing behind the truck and slightly to one
side as it prepared to dump its load onto a concrete slab. The hoist on the truck lifted one end
of the container and the load slid out of the container and onto the slab. As the hoist began
lowering the container, its heavy rear door broke loose from its mooring and swung around,
thereby unbalancing the empty container, which tipped over and struck Mr. Johnson,
knocking him over and severely injuring him.

       The parties are in basic agreement as to the facts outlined above, but they differ as to
who was responsible for the accident. A brief discussion of the equipment and procedures
involved is essential for an understanding of their respective arguments. The proof at trial
showed that BFI’s truck had a flat bed that was equipped with a “roll-off hoist” and a cable
mechanism to pull a steel waste container towards the front of the hoist. The hoist itself was
designed to lift containers to an angle of up to 60 degrees so that waste could be dumped
from them.

       Rails on the underside of each container were made to fit between matching rails on
the hoist. The container itself was designed to slide on rollers attached to the sides of the rails
on the hoist. Fold-down stops near the cab of the truck could be hooked into the container
to hold it in securely in place. A pair of ratchet tie-down straps bolted to the hoist behind the
rear axle could be tightened around the top of a standard container to further secure it to the
truck.

       The truck and hoist combination was designed to accommodate rectangular open-top
containers that were the same length as the hoist, twenty-two feet. But defendant Torrington
needed a shorter container that could be placed under a canopy outside its factory without
sticking out so rainwater would not collect in it. So, in 1995 the Torrington Company


        1
         “Swarf” is a waste by-product of defendant Torrington’s manufacturing processes. It is a mixture
of fine metal particles, coolant used in the metal grinding process, and water from the grinding wheel.

                                                  -2-
ordered and received two custom-made waste containers from defendant Wastequip
Manufacturing Company’s predecessor-in-interest.2

        The custom-made containers were thirteen feet, six inches in length and were taller
than standard containers, about eight feet ten inches tall at the front. About halfway along
their length, the sides of the containers tapered down at a steep angle, so the rear door of the
container was about half as tall as its front wall. Testimony at trial showed that the ratchet
straps were placed too far back to hold the container in position during transport and that
because of the shorter length of the containers, the fold-down stops had to be unhooked to
allow them to slide towards the back of the truck bed for unloading.

        It is undisputed that the rear door of the container played a critical role in the accident.
The heavy door (referred to by some witnesses as “the tailgate”) was hinged along one side
of the container and constituted its rear wall.3 It was held in place by heavy latches. The
latches could be released to let the door pivot on its hinges. If the door was open and the
hoist was lifted to its full extension, the waste could slide out of the container at a designated
location. A length of chain was welded to the outside of the door. A keyhole bracket was
welded to the side of the container for the other end of the chain to be hooked into when the
door was opened. When the chain was properly hooked into the bracket and secured with
a safety catch, the heavy door was held firmly in place at the side of the container, and was
restrained from swinging freely.

       Torrington contracted with BFI to pick up one of its waste containers every week or
two, dump it at the BFI transfer station, and then return it empty to the Torrington factory.
This schedule was followed for five years without incident. On July 24, 2000, the process
appeared to be going normally. The driver, Mr. Eslick, used the controls inside the cab of
the truck to loosen the cable and to raise the hoist so the container could slide on the rollers
down the rails to the back of the truck, a step that would have been unnecessary in a
standard-sized container. He then lowered the hoist, got out of the truck, opened the
container tailgate, and fastened it in place at the side of the container. The driver got back
into the cab and lifted the hoist again, allowing the swarf to slide out of the container. He


        2
         The parties stipulated that Holt Manufacturing fabricated the container at issue and that prior to the
accident that is the subject of this lawsuit, Wastequip purchased all the assets and liabilities of Holt
Manufacturing. The proof showed that the other corporate parties in this case were also acquired by other
companies prior to or during this litigation. BFI was purchased by Allied Waste, Inc., and Torrington was
acquired by Timken. To avoid confusion, we will refer to all the corporate parties only by the names that
identified them in the initial complaint.
        3
          The plaintiff’s expert testified that the door weighed “over 400 pounds.” The defendant’s expert
testified that the door weighed “300 or 330 pounds.”

                                                     -3-
then inched the truck forward slowly to allow any swarf remaining in the container to fall to
the concrete slab.

       Mr. Johnson was standing about six or eight feet behind the rear of the container,
waiting for the hoist to come all the way down, so he could help Mr. Eslick by closing the
rear door. That put him in harm’s way as the truck rolled forward and the chain holding the
door in place failed. The door swung out from the side of the container, causing the
container to tip over and to hit Mr. Johnson, knocking him to his hands and knees. He
attempted to get up, but he was knocked down a second time.

       Mr. Johnson was transported by ambulance to a nearby hospital, then life-flighted to
a hospital in Huntsville for emergency surgery. His injuries included a fractured pelvis, a
urethral tear, rib fractures, collapsed lungs, and nerve damage to his left leg from hip to knee.
He was bedridden and unable to walk for about seven months. His wife had to quit her job
to take care of him as he healed. Mr. Johnson was able to return to work part-time about
eleven months after the accident, and he went on a full-time schedule about a month later,
but with reduced duties. He continues to suffer from urological problems and chronic leg
and back pain, and he can no longer stand on concrete surfaces for long periods at a time.

                                 II. A C OMPLAINT IN T ORT

        Mr. Johnson filed a claim for workers compensation benefits from his employer. On
July 23, 2001, he and his wife also filed a negligence complaint in the Circuit Court of Giles
County, naming Torrington and Wastequip Manufacturing as defendants. The complaint
alleged that both defendants were negligent in the design and manufacturing of the waste
container involved in the accident, that Torrington was also negligent for failing to properly
inspect and maintain the container, and that Mr. Johnson’s injuries were a direct result of the
defendants’ negligence. The plaintiffs asked for a jury trial and for $5 million in
compensatory damages for Mr. Johnson’s injuries. Mrs. Johnson asked for $1 million for her
loss of consortium.

         Both defendants filed answers to the complaint. They denied any negligence and
asserted that Mr. Johnson was at least partially at fault for his injuries. Torrington denied
that its waste container was defective or unreasonably dangerous, but it also argued that the
design and fabrication of the waste container was the sole responsibility of Wastequip, and
it accordingly filed a cross-complaint, asking for indemnification or contribution from
Wastequip for any judgment recovered by the plaintiffs from Torrington. For its part,
Wastequip also denied that the waste container was defective or unreasonably dangerous, and
suggested that Mr. Johnson’s injuries were the result of misuse of the product, superseding
cause, and failure to follow proper instructions.

                                               -4-
        Extensive discovery followed over the course of the next three years, which included
taking the depositions of Mr. Johnson’s treating physicians as well as of numerous experts
in relevant technical fields, such as engineering, metallurgy, product design, and workplace
safety.

       On December 10, 2002, Insurance Company of the State of Pennsylvania, the
workers’ compensation insurance carrier for BFI, filed a motion to intervene in the case. The
insurance company asserted that because of its payment of workers’ compensation benefits
to Mr. Johnson, it had obtained a right of subrogation to collect any judgment he obtained
against the defendants, up to the amount of benefits it paid.4 The motion to intervene was
granted.

                     III. T HE F IRST J URY T RIAL AND I TS A FTERMATH

       The case was tried for five days before Judge Jim Hamilton, starting on January 23,
2005. Aside from the plaintiffs, testifying witnesses included BFI driver Clayton Eslick,
BFI’s safety director and its landfill manager, Torrington’s maintenance supervisor and a
welder who had worked on the container after the accident. Deposition testimony of
Torrington’s plant manager and Wastequip’s fabricating supervisor was also presented to the
jury. The depositions of some of Mr. Johnson’s treating physicians were read into the record,
while others testified in person.

        On the final day of trial, Plaintiffs settled with Wastequip and dismissed all claims
against it. With Wastequip out of the picture, Torrington argued at closing that the conduct
of BFI was the sole cause in fact of the Mr. Johnson’s injuries. On that same day, the trial
court gave the jury instructions on their role and on the law applicable to the case. Among
the instructions given was “Plaintiff may not sue the employer.” After deliberations, the jury
delivered its verdict.

        The first question on the verdict form given to the jury was “Do you find the conduct
of Plaintiff James Johnson’s employer, BFI/Allied Waste, was the sole cause in fact of the
Plaintiff’s injuries?” If the answer was “No,” then the jury was directed to answer follow-up
questions about the fault of Torrington and of Mr. Johnson himself. But the jury’s answer



       4
        A representative of BFI testified out of the presence of the jury that Mr. Johnson was paid
$252,930.40 in workers compensation benefits.

                                                -5-
was “Yes,” thereby pretermitting all other questions.5

      The trial court accepted the jury’s verdict and entered a judgment on February 2, 2006,
dismissing all claims against Torrington. The plaintiff’s attorney asked the court for
permission to interview the jurors, which the court granted.

        On March 3, 2006, the plaintiffs filed a motion for new trial pursuant to Tenn. R. Civ.
P. 59.02, urging the court to exercise its role as thirteenth juror because “the verdict is
contrary to the weight of the evidence presented at trial.” The motion was accompanied by
three juror affidavits. The three affiants all stated that they had discussed their jury service
with the plaintiffs’ attorneys, that they believed that Torrington was at least partially at fault
for Mr. Johnson’s injuries, but that they were led to believe, either on the basis of a
misunderstanding of the jury instructions or because of statements made by certain other
jurors, that it would help the plaintiffs to obtain a fair judgment against the employer if they
held BFI solely responsible.

       On November 30, 2006, almost ten months after entering the judgment on the jury
verdict, Judge Hamilton ruled on the plaintiffs’ motion for new trial. The order stated that
the court had made an independent examination of the weight of the evidence and that “[s]aid
verdict is against the weight of the evidence. Thus, pursuant to the 13 th Juror Rule, the jury
verdict is set aside, and the plaintiff’s Motion for New Trial is granted.”

       Defendant Torrington filed an application for an interlocutory appeal of the trial
court’s decision under Tenn. R. App. P. 9, which the trial court denied, followed by an
application for extraordinary appeal under Tenn. R. App. P. 10, which this court denied.
Upon the defendant’s motion, a different judge was assigned to conduct the second trial.
See Tenn. R. Civ. P. 59.06.

                                    IV. T HE S ECOND J URY T RIAL

        The second jury trial was conducted over three days by Judge Robert Holloway,
starting on February 16, 2010. Many of the same witnesses who had testified at the first trial
also appeared for the second trial, but the testimony of most of the witnesses came in through
the reading of their depositions. Other depositions were shown to the jury on videotape.



        5
        The content and order of questions on the verdict form were in conformity with the Tennessee
Supreme Court’s rulings about the interaction between the principles of comparative fault, as first set out in
Balentine v. McIntyre, 833 S.W.2d 52 (Tenn. 1992), and the requirements of the Workers’ Compensation
Law, Tenn. Code Ann. § 50-6-101 et seq.

                                                     -6-
       Mr. Johnson testified in person. He explained that he was following his normal
procedures in his supervision of the transfer station on the day of the accident, and he denied
that he was standing too close to the truck, pointing out that his position enabled the driver
to see his hand signals through the truck’s side view mirror. He admitted, however, that if
he had been standing further away he could have avoided injury.

       Mr. Johnson testified that he remembers very little about his stay at Huntsville
Hospital. He was discharged from the hospital twelve days after the accident. He had to be
carried from the car into his house because he couldn’t walk. His wife had a hospital bed
moved into the couple’s living room, to enable her husband to look out the picture window.
She slept on a mattress on the living room floor, so she would always be nearby to help with
his basic needs, including daily catheterization. The couple’s two young daughters slept on
the mattress with their mother. Three or four months after the accident, Mr. Johnson had
recovered enough that he could be helped into a wheelchair for a trip to Wal-Mart. About
five or six months after the accident, he was able to use a walker. A few months later, he
switched to crutches.

        Mr. Johnson testified that he continues to suffer from pain in his left leg and his back,
and he has difficulty sleeping. Although he underwent urethral surgery, he continues to
suffer from urological problems. He takes medication for pain, for depression, and to treat
urinary problems. He has monthly pharmaceutical expenses of about $1,000. Sexual
relations with his wife require the use of medical aids and devices that were described in
detail during questioning. Mr. Johnson also acknowledged under questioning that in 1995
he was treated for stress related to the death of his father-in-law, and that he took an anti-
depressant for a number of months. He also sought treatment for frequent urination prior to
the accident, and he was given a prescription to treat that condition.

       The deposition of Dr. Charles Haney, Mr. Johnson’s family practitioner, was read into
the record. Dr. Haney testified that he had been Mr. Johnson’s personal doctor for over
twenty years, and he confirmed that he had treated Mr. Johnson for stress and for urinary
problems prior to the accident. He stated, however, that Mr. Johnson’s urinary problems and
anxiety were far worse after the accident than they had ever been before. He also testified
as to Mr. Johnson’s character, stating that “he is an honest and hard-working family man,”
and that he had made the best effort he could to recover from his injuries.

        The deposition testimony of Dr. Gary Strickland, a neurologist, was also read into the
record. He testified that he began treating Mr. Johnson for chronic pain in 2004. He further
testified that the patient’s pain was caused by damage to the lateral femoral cutaneous nerve
in his thigh, that the pain had to be treated with daily medication, and that to a reasonable
degree of medical certainty, the condition was a permanent one. A letter from Dr. James

                                               -7-
Flatt, Mr. Johnson’s urologist, was entered into the record. It stated that urethral strictures
resulting from Mr. Johnson’s accident placed him at an increased risk of urinary tract
infections, and that Dr. Flatt had treated him in the hospital for at least one such infection.


        The plaintiffs called consulting mechanical engineer Roger Dean Harris as an expert
witness. He testified at length and was cross-examined closely. He stated that he had visited
the transfer station and the Torrington factory, examined and measured the waste container,
talked to engineers at the factory where the hoist was manufactured, and studied the manuals
for the hoist and for the truck.6 He concluded that the root cause of the accident “. . . was the
chain separating from the door and allowing the door to swing. That caused an already
unstable box to fall off of the truck.”

       Mr. Harris testified that either the chain itself broke or a weld on the bracket to which
the chain was hooked failed, or the safety catch had broken or come loose, causing the door
to swing free. He could not definitively conclude which of those possibilities was the correct
one. However, he pointed out that all the welds and metal parts involved were subject to
corrosion, and he discussed in detail several flaws he had observed in the welds that made
them more prone to failure.

        Mr. Harris admitted under cross-examination that if the container had been securely
fastened, it would not have fallen off the truck, even if the door was swinging loose. But he
testified that because of the unusual size and shape of the container, it was incompatible with
the attachment features of the hoist, and thus could not be safely and securely fastened. He
also observed that the container was top-heavy, which increased its potential instability when
the door was in motion.

        Another expert witness called by the Plaintiffs was Gerald John Hietpas, a
professional engineer with extensive experience in the field of industrial maintenance. He
testified that he had inspected the Torrington plant and found it was a large and sophisticated
operation. Because Torrington owned the waste containers it used, he declared it to be the
company’s responsibility to properly maintain them, and he stated that the company should
have placed them on its preventative maintenance program. Torrington’s maintenance
supervisor testified, however, that there was no maintenance schedule for the containers and
that he didn’t know why not.

       Mr. Hietpas further testified that he noticed in his factory inspection that numbered
brass inventory tags were fastened to other pieces of equipment owned by the company, but

       6
           It is undisputed that there were no manuals for the container itself.

                                                       -8-
that there were no such tags on the waste containers. He accordingly theorized that it was
possible that Torrington did nothing to maintain the containers because the workers in charge
of maintenance did not realize that they were owned by the company.7 He also said that a
five or ten minute inspection of the container every time it came back from BFI would have
been sufficient to discover any potential problems, such as a failing weld, a rusting or
deformed chain, or a malfunctioning latch, that Torrington had capable personnel with the
skills to repair any such items, and that a failure to do so was below the standard expected
in a factory like Torrington’s.

       Larry Edward Bishop, Torrington’s plant manager, testified by deposition that the
Pulaski plant employed a workforce of 500 to 600 people, including ten engineers. He
agreed that it was Torrington’s responsibility to make sure that the containers remained in
good shape after the date of their purchase. He admitted that no one at Torrington inspected
the containers for repairs or for any maintenance they might need. Torrington’s former and
current maintenance supervisors also admitted that they had not ordered any maintenance on
the containers.

       Another witness called by the Plaintiffs was Coveak Moody, a former safety
supervisor for BFI. He testified that BFI entered into a service contract with Torrington
because Torrington owned the containers at issue. BFI’s responsibilities under such a
contract are to pick up the container at their customer’s property, dispose of the contents, and
then return it. Another type of contract that BFI uses is a rental contract, wherein BFI owns
the container, maintains it, cleans it, and make sure it is in safe working order.

        Mr. Coveak acknowledged under cross-examination, however, that regardless of the
type of contract involved, it was BFI’s job to make sure that the container was properly
secured to BFI’s truck and to dump it safely. He also acknowledged that BFI’s safety manual
directed drivers to report damaged containers or safety equipment to their supervisors and
that it also warned employees not to place themselves or anyone else behind a container
while it was in a tilt position.

        Portions of driver Clayton Eslick’s deposition were read into the record. He testified
that he didn’t like to haul Torrington’s container because of the way it was built and because
the metal it was filled with made for a heavier load than most: “I didn’t like hauling the box.
It was my job and I had to do it, but it was a dangerous box to haul.” He also testified that
the container could be safely transported, so long as it was hooked into the front stops when


       7
         Mr. Hietpas’ theory was confirmed by Torrington’s current maintenance supervisor, who testified
that when he first took the job, he did not order any maintenance on the containers because “we actually
thought they were actually owned by BFI or Wastequip or someone else.”

                                                  -9-
it was pulled to the front of the truck bed.

        But he further stated that there was no way to secure it after it was rolled to the back
of the truck for unloading, and that at that point, it just sat on the rails, with the weight of the
box the only thing keeping it in place.8 Mr. Eslick also testified that immediately before the
accident he handled the chain that was supposed to hold the door in place and he didn’t see
anything wrong with it, but that after the accident he noticed that it had broken.9

        At the conclusion of the plaintiffs’ proof, the defendant moved the court for a directed
verdict. The trial court denied the motion. The defense then called David John Murphy, who
had worked for BFI prior to 1998 and also after 2002, training drivers and other personnel
in safety matters. He testified to the existence of a safety video for drivers of roll-off trucks
that was used by the company during his first stint there. Mr. Murphy was also asked to read
an excerpt from a section in an employee manual titled “Roll-Off Guidelines.” The excerpt
declared it was the driver’s responsibility to make sure the dumping process is safe, to
“[m]ake sure chain is in good condition and has a secure locking mechanism to hold door
open,” and to “[n]ever place yourself or anyone else behind or under a container while it is
in the lift position.”

       Mr. Murphy also testified that drivers were supposed to “look over” the containers
before they hauled them to make sure they were safe, that they could refuse to carry any load
that they believed was unsafe, and that if they found a customer-owned container to be
unsafe, they were instructed to notify the owner of the problem. Mr. Murphy acknowledged
on cross-examination, however, that if BFI contracted to dump waste from a container owned
by another party, the other party had a responsibility to inspect and maintain its container.

        The defendant also called its own expert witness, a mechanical engineer named
George Michael Saunders, Jr. He had also inspected Torrington’s two containers and BFI’s
truck and hoist, and he disagreed with the conclusions reached by the plaintiffs’ experts. He
testified that in his opinion the swinging of the rear door would have not have been sufficient
to tip the container over if it had been positioned correctly on the hoist during or after the
unloading operation. He theorized that perhaps the driver had let the container bang against




        8
        Mr. Eslick acknowledged that the cable was still attached to the container during dumping, but the
expert witnesses testified that the cable could not restrain the side-to-side motion of the container.
        9
         The proof showed that a welder fastened a new chain on the box after the accident, and that the
original chain was lost or misplaced prior to the first trial.

                                                  -10-
the ground to free up some of the load,10 and that maybe the driver had pulled forward while
the container was still in contact with the ground, thereby dragging the container out of its
rails.

        In any case, Mr. Saunders declared that it was BFI’s responsibility to properly secure
the container to the hoist, and that there was nothing that Torrington did or failed to do that
caused the container to fall off the truck. He also testified that, contrary to Mr. Harris’
testimony, stops and ratchet straps could have been used to secure the container. He
explained that BFI could have modified the truck by installing intermediate fold-down stops
(available from the manufacturer) to hold a short container in place after it was slid down to
the back of the truck bed, and that the driver could have secured the ratchet tie-down straps
to the container when he was opening and securing the rear door prior to dumping.

        At the conclusion of proof, the judge recited the jury instructions and the jury heard
closing arguments. The jury then retired to deliberate and returned with a verdict two and
a half hours later. The first question on the two page verdict form given to the jury was the
same as it was at the first trial: “Do you find the conduct of Plaintiff James Johnson’s
employer, BFI/Allied Waste, was the sole cause in fact of the Plaintiff’s injuries?” This time,
the jury answered “No.” In accordance with its instructions, the jury then went on to answer
the follow up questions, and it allocated fault between the only remaining defendant (The
Torrington Company) and plaintiff Johnson, finding Torrington to be 90% at fault for Mr.
Johnson’s injury and Mr. Johnson himself to be 10% at fault. In response to the damages
question, the jury found that Mr. Johnson had suffered $3 million in damages and that his
wife’s damages for loss of consortium claim was $500,000.

       Torrington filed a Motion for Judgment Notwithstanding the Verdict, a Motion for
New Trial, and a Motion for Remittitur. The trial court overruled the Motions for J.N.O.V.
and new trial, but suggested a remittitur of $250,000 for Mrs. Johnson’s damages. The
reduction from the total damages for Mr. Johnson’s comparative fault and for the remittitur
resulted in a net final judgment for the plaintiffs in the amount of $2,925,000. This appeal
followed.

                      V. T HE D ECISION TO V ACATE THE F IRST V ERDICT

        Torrington’s first argument on appeal is that the trial court erred when it vacated the
first jury verdict because it misapplied the thirteenth juror rule. In this state, the trial judge


        10
         Several witnesses testified that “jogging” the container in this way is sometimes used to remove
stubborn waste during unloading operations, but Mr. Johnson and Mr. Eslick both testified that this was not
done on the day in question.

                                                   -11-
is considered to be the thirteenth juror, and no verdict is valid until the trial judge approves
it. Washington v. 822 Corp. 43 S.W.3d 491, 494 (Tenn. Ct. App. 2000); Shivers v. Ramsey,
937 S.W.2d 945, 947 (Tenn. Ct. App. 1996). The thirteenth juror rule requires the trial court
to independently weigh the evidence, to determine the issues, and to decide whether the
verdict is supported by the evidence. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 717-18
(Tenn. Ct. App. 1999); Ladd v. Honda Motor Co., 939 S.W.2d 83, 105 (Tenn. Ct. App.
1996). A trial judge that is dissatisfied with the verdict should set it aside and grant a new
trial. Loeffler v. Kjellgren, 884 S.W.2d 463, 468-69 (Tenn. Ct. App. 1994). The reason the
trial judge is required to assume that role is because,

       the circuit judge hears the testimony, just as the jury does, sees the witnesses,
       and observes their demeanor upon the witness stand; that, by his training and
       experience in the weighing of testimony, and the application of legal rules
       thereto, he is especially qualified for the correction of any errors into which the
       jury by inexperience may have fallen, whereby they have failed, in their
       verdict, to reach the justice and right of the case, under the testimony and the
       charge of the court . . .

State v. Moats, 906 S.W.2d 431, 433 (Tenn. 1995)(quoting Manning v. State, 292 S.W. 451,
457 (Tenn. 1927)).

        Torrington argues, however, that the trial court’s decision to set aside the jury verdict
was in error because it was not entered until ten months after the court approved the verdict
and because “delay prevents use of the thirteenth juror rule.” As authority for that
proposition, the defendant cites Tenn. R. Civ. P. 59.05, which governs the court’s power to
alter or amend a judgment or to grant a new trial after entry of a judgment. That rule allows
the court to order a new trial on its own motion only if it does so within thirty days of the
entry of judgment. If it fails to do so, then the judgment becomes final.

        In this case, however, the trial court did not act on its own motion, but rather in
response to the plaintiffs’ motion for new trial, which was filed and served within thirty days
of the entry of judgment, pursuant to Tenn. R. Civ. P. 59.02. When a party files a post-trial
motion under Rule 59, the court’s judgment is suspended or stayed until it rules on the
motion. The court is not required to rule on the motion within any particular time frame. See
Webb v. Aetna Life Ins. Co., 496 S.W.2d 511, 512 (Tenn. Ct. App. 1973).

        Torrington notes, however, that our Supreme Court has stated that while the thirteenth
juror rule is meant to be a safeguard against a miscarriage of justice by the jury, “[t]he more
time that passes between the trial and the trial court’s evaluation of the evidence as the
thirteenth juror, the less meaningful the safeguard becomes.” State v. Moats, 906 S.W.2d at

                                              -12-
435. The reason is that with the passage of time, the trial court’s independent recollection
of the demeanor and credibility of all the witnesses is apt to decline. Id.

        We agree with the defendant that it is the best for the trial court to act promptly on a
motion for new trial, while the testimony of the witnesses is still fresh in the judge’s mind.
Nonetheless, delay does not render the trial court ineligible to perform its duty as thirteenth
juror. For example, in the case of Ladd v. Honda Motor Co., supra, fifteen months elapsed
between the jury verdict and the trial court’s review. The plaintiff argued that the delay
prevented the trial court from adequately performing its function as thirteenth juror. This
court disagreed, stating that “[t]he passage of time alone provides no basis for concluding
that the trial court could not or did not properly review the verdict.” Ladd v. Honda Motor
Co., 939 S.W.2d at 105.

       The relevant order in this case simply stated that the judge had made an independent
examination of the evidence, found that the jury verdict was against the weight of the
evidence, and ordered a new trial. There is nothing on the face of that order to suggest that
the judge misunderstood his role as thirteenth juror, and we have found no statement by the
judge in the record that might require us to undertake a deeper analysis of his mental
processes. Torrington argues, however, that the trial court’s decision was based on the three
juror affidavits that were attached to its motion for new trial, that the affidavits did not
contain information that it was proper for the trial court to consider, and therefore that the
court’s decision was tainted by the improper information. There is nothing in the record,
however, other than the affidavits themselves, to support this theory.

       Torrington also argues that “as the thirteenth juror, the trial court disregarded
undisputed evidence.” In support of that proposition, the company recites in detail the
testimony of witnesses at the first trial who testified that it was BFI’s duty to secure the
container properly and to dump its contents safely, and that BFI failed to perform those
required duties. Torrington does not mention, however, that other witnesses testified that
Torrington had a duty to maintain its own containers and keep them in good repair, that
Torrington made no effort to do so, and that the failure of a simple device on Torrington’s
container, meant to secure the rear door during the dumping process, was a root cause of the
accident.

                VI. D EFENDANT’S O BJECTIONS TO THE S ECOND V ERDICT

       A. The Jury Verdict Standard of Review

        The standard of review we must apply to a jury verdict approved by the trial court is
set out in Tennessee Rule of Appellate Procedure 13(d), which provides that “[f]indings of

                                              -13-
fact by a jury in civil actions shall be set aside only if there is no material evidence to support
the verdict.” Our Supreme Court has discussed that standard of review as follows:

       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 of the evidence 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.

Crabtree Masonry Co. v. C & R Construction, Inc., 575 S.W.2d 4, 5 (Tenn. 1978). See, also,
Overstreet v. Shoney’s 4 S.W.3d 694, 717 (Tenn. Ct. App. 1999); Black v. Quinn, 646
S.W.2d 437, 439-40 (Tenn. Ct. App. 1982).

       B. The Motion for J.N.O.V.

       Torrington argues that the trial court erred by not granting its motion for Judgment
Notwithstanding the Verdict (J.N.O.V.). In ruling on such a motion, the court must take the
strongest legitimate view of the evidence in favor of the non-moving party, discard all
countervailing evidence, and may grant the motion only if, after assessing the evidence
according to that standard, it determines that reasonable minds could not differ as to the
conclusions to be drawn from the evidence. Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.
1994); Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977). If there is any doubt as to the
proper conclusions to be drawn from the evidence, the motion must be denied. Eaton v.
McLain, 891 S.W.2d at 590.

       The standard for ruling on a J.N.O.V. motion differs from the standard for ruling on
a motion for new trial under the thirteenth juror rule, in that the trial court and the appellate
court may not weigh the evidence or assess the credibility of the witnesses when ruling on
a motion for J.N.O.V. Holmes v. Wilson, 551 S.W.2d at 685; Potter v. Ford Motor Co., 213
S.W.2d 264, 268 (Tenn. Ct. App. 2006); Mairose v. Federal Express Corp., 86 S.W.3d 502,
511 (Tenn. Ct. App. 2001). Under that standard, “[i]f there is material evidence to support
the jury’s findings, then, of necessity, the case may not be taken from the jury.” Holmes v.
Wilson, 551 S.W.2d at 685; Potter v. Ford Motor Co., 213, S.W.2d at 268.

       Torrington attempts to establish its entitlement to J.N.O.V. by characterizing the case
as one for negligent inspection and by emphasizing evidence that suggested that if there was

                                               -14-
a defect in the chain or in the device for hooking the rear door into the side of the container,
such defect could not have been detected by ordinary inspection. For example, it points to
Mr. Eslick’s testimony that he handled the chain on the day of the accident and did not see
anything wrong with it, and it states that “[t]here is no evidence and no reason to infer that
Torrington could have seen something that was not visible to Mr. Eslick.” Thus, Torrington
implies that there was no material evidence to support an essential element of the plaintiffs’
claim: that Torrington’s breach of its duty to inspect the chain for visible problems was a
cause in fact of Mr. Johnson’s injuries.




        But Torrington ignores the evidence that contradicts its argument. Torrington’s own
plant manager admitted that it was the company’s responsibility to make sure that the
containers remained in good condition and that no one at Torrington inspected them for
repairs or for any maintenance they might need. Two of Torrington’s safety supervisors
confirmed that the containers were excluded from any regular inspection and maintenance
schedule. Mr. Hietpas, the plaintiffs’ expert witness, testified that regular inspections by
Torrington’s engineers would have been sufficient to discover any potential problems, such
as a failing weld, a rusting or deformed chain, or a malfunctioning latch. He also testified
that Torrington had the resources needed to correct any such problems. There was thus
ample material evidence to support the jury verdict, thereby showing that Torrington was not
entitled to J.N.O.V.

       C. The Allocation of Fault Between Defendant and Plaintiff

       As we explained above, the first question asked on the jury verdict form was whether
BFI’s conduct was the sole cause in fact of the plaintiffs’ injuries. The second jury answered
that question in the negative. The jury was then instructed to allocate the percentage of fault
between defendant Torrington and Mr. Johnson, with the total to add up to 100%. The jury
followed these instructions, and found Torrington to be 90% at fault for the accident, and Mr.
Johnson to be 10% at fault.

        Torrington asserts that the proof overwhelmingly showed that Mr. Johnson was
standing too close to the container and that he himself admitted that he would not have been
struck if he had been standing further away. It accordingly argues that the jury’s allocation
of fault “is contrary to the manifest weight of the evidence,” and that in accordance with
Jones v. Idle, 114 S.W.3d 911, 913 (Tenn. 2003), “the trial court must treat this defect as an
error in the finding of liability itself.”

       But, Jones v. Idle is not on point with the present case. The jury in that case found the

                                              -15-
plaintiff to be 90% at fault and the defendant/counterplaintiff to be 10% at fault, resulting
in no recovery for the plaintiff under the principles of modified comparative fault.
Exercising its role as thirteenth juror, however, the trial court found that neither party had
carried its burden of proof. It accordingly set the verdict aside and ordered a new trial. This
court and our Supreme Court affirmed the trial court’s action, holding that “a trial court is
not allowed to reallocate the percentages of fault determined by the jury once it disagrees
with the weight of the evidence as the thirteenth juror,” but must rather order a new trial.
Jones v. Idle, 114 S.W.3d at 913.

       In contrast with Jones v. Idle, the trial court in the present case approved the jury
verdict. We have found that there is material evidence in the record to support the verdict
and the judgment based on it, and neither we nor the trial court have suggested that the
allocation of fault needs to be adjusted. Further, contrary to Torrington’s suggestion that Mr.
Johnson’s fault had to be greater than its own, the proof showed that Mr. Johnson would not
have been injured, regardless of where he was standing, if the device holding Torrington’s
door in place had not unexpectedly broken. We acknowledge the possibility that under the
facts of this case the jury could have allocated fault differently than it did, thus reducing
Torrington’s liability, but we do not find that its verdict was contrary to the manifest weight
of the evidence.

       D. The Exclusion of BFI from the Calculation of Fault

        Torrington also complains that the verdict makes it liable not only for its own quantum
of fault for causing Mr. Johnson’s injuries, but also for the fault of BFI, whose negligence
was clearly a significant factor in the accident. The defendant argues that by absolving BFI
of all liability and shifting that liability to Torrington, the verdict contravenes one of the
primary purposes behind our Supreme Court’s adoption of a system of comparative fault,
which is to guarantee that “[a] particular defendant will henceforth be liable only for the
percentage of a plaintiff’s damages occasioned by that defendant’s negligence . . .”
Balentine v. McIntyre, 833 S.W.2d 52, 58 (Tenn. 1992).

       Torrington acknowledges, however, that the decision in this case is consistent with
the Supreme Court’s holding in the recent case of Troup v. Fisher Steel, 236 S.W.3d 143
(Tenn. 2007), and in earlier cases which attempted to harmonize the principles of
comparative fault set out in Balentine v. McIntyre, with the Workers’ Compensation Law.
The first of these was Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996) , in
which the Court declared that “the rationale of Balentine v. McIntyre postulates that fault
may be attributed only to those persons against whom the plaintiff has a cause of action in
tort.” Ridings v. Ralph M. Parsons Co., 914 S.W.2d at 81. The Court therefore concluded
that no fault can be attributed to an employer that is immune in tort under the Workers’

                                             -16-
Compensation Law. Id. at 82.

        In the subsequent case of Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252
(Tenn. 1997), the Court clarified its holding in Ridings. It ruled that in order to give a jury
the fullest possible understanding of the facts of a case, a defendant should be allowed to
argue that the actions of an employer that is immune from liability in tort under the Workers’
Compensation Law were a cause in fact of the plaintiff’s injury. It did not permit juries to
allocate any share of liability to that immune employer. Thus, in cases where immune
parties and non-immune defendants were both at fault for a plaintiff’s injury, juries were still
required to allocate 100% of the liability between the non-immune defendants and the
plaintiff.




       The case of Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000), gave the Court the
opportunity to examine the question of allocation of fault in the context of a negligence
action against a group of defendants that included two resident physicians who were immune
from suit because they were state employees. The Court substantially altered the rule
enunciated in the earlier cases in order to “create a tighter fit between liability and fault.” Id.
at 18. It ruled that “when a defendant raises the nonparty defense in a negligence action, a
jury may generally apportion fault to immune nonparties.” Id. at 19. (emphasis added).

       The ruling meant that in most situations the fault of an immune nonparty could be
applied to a finding of damages to reduce the liability of a non-immune defendant. Thus, for
example, if the jury found an immune non-party to be 30% liable for the plaintiff’s injury,
the plaintiff would be able to recover at most 70% of his damages from the defendant or
defendants. But the court still excluded from this general rule cases involving employers that
are immune under the Workers’ Compensation Law, for reasons upon which it further
elaborated in the case of Troup v. Fisher Steel, supra.

       In Troup, the Court discussed the impact of Tenn. Code Ann. § 50-6-112(c)(1) of the
Workers’ Compensation Law on the potential recovery of an injured employee. That statute
gives an employer who has paid workers compensation to an injured employee a subrogation
lien for the full amount it has paid to the employee against any award or settlement the
employee obtains against a negligent defendant. The court was concerned that applying the
same general rule set out in Carroll v. Whitney to cases involving immunity under the
Workers’ Compensation Law meant that,

       plaintiffs would be subject to a double reduction of their recovery against third
       parties who contributed to their on-the-job injuries. The first reduction would

                                               -17-
       occur when the jury apportioned fault to the employer. The second would
       occur when the workers’ compensation carrier exercised its right to
       subrogation against the plaintiff’s recovery from the third party.

Troup, 236 S.W.3d at 147.

         The Troup court accordingly affirmed its rulings in Ridings and Snyder, in cases
involving immunity under the Workers’ Compensation Law. It was not fully satisfied with
that result, however, because it realized that it could lead to an inequitable judgment, since
Tenn. Code Ann. § 50-6-112(c) “allows an employer to pursue its full subrogation interest
against an employee’s recovery regardless of the employer’s degree of fault.” Thus, while
protecting an injured employee from a double reduction in his recovery, the Court’s ruling
raised the possibility that a non-immune defendant that was only partially at fault for a
plaintiff’s injury would have to bear liability both for its own fault and that of a negligent
employer. The court accordingly invited the General Assembly to amend Tenn. Code Ann.
§ 50-6-112(c) to prevent an employer from recovering workers’ compensation payments if
it is found to be at fault for its employee’s injuries. Troup v. Fisher Steel, 236 S.W.3d at 147,
fn. 2. As of the date of this opinion, however, the General Assembly has not enacted the
requested amendment.

        Torrington asks this court to amend the judgment against it in order to return to the
basic principle set out in Balentine v. McIntyre, that a defendant should not be taxed with any
liability for an injury beyond the extent of its actual fault. But this court has no authority to
overrule a decision of our Supreme Court. Thus, we are unable to grant the defendant’s
request.

       E. The Amount of the Verdict

        Defendant Torrington’s final argument is that the amount of the verdict was excessive,
and it asks this court to order a further remittutur on the judgment. In support of its
argument, Torrington attempts to minimize the severity of Mr. Johnson’s injuries. It notes
that he has recovered sufficiently from those injuries to be able to return to work and that he
received treatment for depression and for urinary problems even before the accident
worsened those problems.

        The proof showed, however, that Mr. Johnson’s injuries were severe, and that his
physical impairment is permanent. Although he has managed, through force of will, to return
to work, he continues to suffer from chronic pain, he must take frequent bathroom breaks,
and he has suffered several falls at work when his left leg suddenly gave out. Even short
trips in the automobile have become difficult and must be carefully planned. Mr. Johnson

                                              -18-
used to hunt and take care of his yard. He can no longer hunt, and his wife now does much
of the yard work. Although previously sociable and outgoing, he has become withdrawn and
depressed. It is beyond dispute that his life and that of his wife have been changed forever
as a result of the accident.

        The jury in this case was instructed as to various components of a compensatory
award, including medical expenses, loss of income, loss of future income, pain and suffering,
and loss of enjoyment of life. The verdict form, however, did not require the jury to quantify
each of these components, but only to enter the total amount of damages each of the plaintiffs
has suffered. The jury found Mr. Johnson’s damages to be $3 million. Appellate courts may
reduce or invalidate a judgment when the amount of the verdict is so excessive or
unconscionable that it shocks the judicial conscience and amounts to a palpable injustice.
Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 212 (Tenn. Ct. App. 2008). That
is not the situation in the present case. We accordingly affirm the award.

        The jury also found Mrs. Johnson’s damages for loss of consortium to be $500,000.
The trial court exercised its power to suggest a remittitur of that verdict to $250,000. The
plaintiffs ask us to restore the original amount of the verdict. Under Tennessee law, the trial
court is authorized to grant a remittitur if the court determines that the verdict of the jury is
excessive. Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 387 (Tenn. Ct. App.
2006). Our review of the trial court’s remittitur decision is governed by Tenn. R. App. P.
13(d), which presumes the factual findings of the trial judge to be correct unless the evidence
in the record preponderates against them. Palanki, 215 S.W.3d at 386. In this case, we do
not believe that the evidence preponderates against the trial court’s suggestion of remittitur.

                                      VII. C ONCLUSION

       The judgment of the trial court is affirmed. We remand this case to the Circuit Court
of Giles County for any further proceedings necessary. Tax the costs on appeal to the
appellant, the Torrington Company.




                                                     _________________________________
                                                     PATRICIA J. COTTRELL, JUDGE




                                              -19-
