RANDY GENE HAUSKINS and wife, )
CAMMY HAUSKINS,               )
                              )     Appeal No.
     Plaintiffs/Appellants,   )     01A01-9806-CV-00284

v.
                              )
                              )               FILED
                                    Sumner Circuit
                              )     No. 16594-C
                                               August 12, 1999
TRI COUNTY ELECTRIC           )
MEMBERSHIP CORPORATION,       )               Cecil Crowson, Jr.
                              )              Appellate Court Clerk
     Defendant/Appellee.      )



             COURT OF APPEALS OF TENNESSEE


   APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

                 AT GALLATIN, TENNESSEE


         THE HONORABLE THOMAS GOODALL, JUDGE




C. TRACEY PARKS
Harsh, Parks & Harsh
123 Public Square
Gallatin, Tennessee 37066
      ATTORNEY FOR PLAINTIFFS/APPELLANTS


THOMAS M. DONNELL, JR.
JENNIFER A. LAWRENCE
Stewart, Estes & Donnell
Suite 1401 SunTrust Center
424 Church Street
Nashville, Tennessee 37219
      ATTORNEYS FOR DEFENDANT/APPELLEE



                 AFFIRMED AND REMANDED



                                   WILLIAM B. CAIN, JUDGE
                               OPINION

         Plaintiffs, Randy Gene Hauskins and Cammy Hauskins, are husband
and wife. At the time of the accident resulting in his very serious injuries, Mr.
Hauskins was a framing carpenter working for Terry Gregory, subcontractor of
Coates Construction Company, in the construction of a new home in Sumner
County, Tennessee.       The defendant, Tri County Electric Membership
Corporation, distributes electric power through distribution lines owned and
maintained by Tri County.


         At all times material in this case, the following sections of Tennessee
Code Annotated were in full force and effect:
            68-103-102. Guarding against accidental contact by
         employee. No person, firm, or corporation, or agent of same,
         shall require or permit any employee to perform any function
         in proximity to high-voltage lines; to enter upon any land,
         building, or other premises and there to engage in any
         excavation, demolition, construction, repair or other
         operation; or to erect, install, operate, or store in or upon
         such premises any tools, machinery, equipment, materials, or
         structures, including house moving, well drilling, pile driving
         or hoisting equipment, unless and until danger from
         accidental contact with such high-voltage lines has been
         effectively guarded against in the manner hereinafter
         prescribed.

             68-103-103. Clearance or safeguard required. (a) The
         operation, erection or transportation of any tools, machinery,
         or equipment, or any part thereof capable of vertical, lateral
         or swinging motion, the handling, transportation or storage
         of any supplies, materials or apparatus, or the moving of any
         house or other building, or any part thereof, under, over, by
         or near high-voltage lines, is hereby expressly prohibited, if
         at any time during such operation, transportation or other
         manipulation it is possible to bring such equipment, tools,
         materials, building, or any part thereof, within six feet (6') of
         such high-voltage lines, except where such high-voltage lines
         have been effectively guarded against danger from accidental
         contact, by either:
             (1) The erection of mechanical barriers to prevent
         physical contact with high-voltage conductors; or
             (2) De-energizing the high-voltage conductors and
         grounding where necessary.
             (b) Only in the case of either such exception may the
         six-foot (6') clearance required be reduced. The required six-

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           foot (6') clearance shall not be provided by movement of the
           conductors through strains impressed, by attachments or
           otherwise, upon the structures supporting the high-voltage
           line nor upon any equipment, fixtures or attachments thereon.
              (c) If temporary relocation of the high-voltage
           conductors is necessary, appropriate arrangements shall be
           made with the owner or operator of the overhead line for
           such temporary relocation.

              68-103-105. Notification to power company and
           responsibility for safeguards. When any operations are to
           be performed, tools or materials are to be handled, or
           equipment is to be moved or operated, within six feet (6') of
           any high-voltage line, the person or persons responsible for
           the work to be done shall promptly notify the operator of the
           high-voltage line of the work to be performed, and such
           person shall be responsible for the completion of the safety
           measures, which are required by §§ 68-103-102 and 68-103-
           103, before proceeding with any work which would impair
           the aforementioned clearance.

           The contractor, Craig Coates, had contracted with Mr. and Mrs. Reece
to build their new home on Blacky Bandy Road in Bethpage, Tennessee. Coates
subcontracted the framing work to Terry Gregory who then employed Hauskins
and others to do the framing. Prior to the initiation of this new construction on
the property, the location of the electrical lines exceeded all vertical clearance
requirements as set forth by the National Electrical Safety Code. The house was
to be built in part under existing power lines, including an uninsulated 7200 volt
line.


           Coates contacted Tri County Staking Technician Keith Taylor to
request that the lines be moved. At the time Coates and Taylor met at the site to
discuss moving the power lines, some of the block work for the basement had
been completed but framing work had not yet begun. Coates knew that work on
the roof near the power lines would not be safe and so did subcontractor Terry
Gregory.


           Without notifying Tri County, framing and roofing work was
undertaken, bringing subcontractor employees, including plaintiff Hauskins, into
close proximity of the 7200 volt line. Hauskins was an experienced framing


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carpenter, having worked in the construction business for over twenty years and
was aware that the lines were dangerous. At the time of the accident, he was
working in very close proximity to the 7200 volt line. He accidently came into
contact with the line, received severe electrical shock and was thrown from the
roof in such a manner as to fracture his thoracic spine resulting in paraplegia.
The accident occurred May 14, 1995.




         The trial in March of 1998 resulted in a finding by the jury that plaintiff
Hauskins was 100% at fault and that Tri County had no fault.


         Plaintiffs appeal, raising three issues:
             1. Whether the trial court erred in allowing Tri County to
         introduce evidence of Coates Construction’s acts or
         omissions when Coates could not be made a party due to the
         exclusive remedy provision of Tennessee Code Annotated
         section 50-6-108(a);
             2. Whether such evidence and the resulting argument to
         the jury was in derogation of the rule set forth in the case of
         Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn.
         1996);
             3. Whether the trial erred in its charge to the jury
         regarding causation and liability.


         After the accident Hauskins had settled with Lumberman's Mutual
Casualty Company, workers' compensation carrier for Coates Construction
Company. Lumberman's had intervened to assert its subrogation rights against
Tri County but did not join in the appeal of the adverse judgment below.
Tennessee Code Annotated section 50-6-108(a) provides:
         (a) The rights and remedies herein granted to an employee
         subject to the Workers' Compensation Law on account of
         personal injury or death by accident, including a minor
         whether lawfully or unlawfully employed, shall exclude all
         other rights and remedies of such employee, such employee's
         personal representative, dependents or next of kin, at
         common law or otherwise, on account of such injury or

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         death.


         Appellant is correct in his assertion that a plaintiff's "right to recover
on allegations of negligence ... is determined without reference to the employer's
conduct." Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 84 (Tenn. 1996).
In answering the question of whose conduct is the proximate cause of an
accident, the actions of a plaintiff's employer may not be considered. However,
it is also true that evidence of an employer's actions may be used to show that a
plaintiff has not made out its cause of action, i.e., a failure to prove that a
defendant's actions were cause in fact of plaintiff's injury. Snyder v. LTG
Lufttechnische GmbH, 955 S.W.2d 252, 256 (Tenn. 1997).


          The law of this jurisdiction distinguishes between proximate cause and
cause in fact. One's actions may be the cause in fact of an injury while not being
the injury's proximate cause. On the other hand, one's actions cannot be a
proximate cause of an accident without being a cause in fact. In the words of our
supreme court:
             Causation and proximate cause are distinct elements of
          negligence, and both must be proven by the plaintiff by a
          preponderance of the evidence. Bradshaw, 854 S.W.2d at
          869; McClenahan v. Cooley, 806 S.W.2d 767, 774
          (Tenn.1991); Smith v. Gore, 728 S.W.2d 738, 749
          (Tenn.1987). "Causation (or cause in fact) is a very different
          concept from that of proximate cause. Causation refers to
          the cause and effect relationship between the tortious
          conduct and the injury. The doctrine of proximate cause
          encompasses the whole panoply of rules that may deny
          liability for otherwise actionable causes of harm." King,
          Causation, Valuation, and Chance in Personal Injury Torts
          Involving Preexisting Injuries and Future Consequences, 90
          Yale L.J. 1353, 1355 n. 7 (1981). Thus, proximate cause, or
          legal cause, concerns a determination of whether legal
          liability should be imposed where cause in fact has been
          established. McKellips v. Saint Francis Hosp., 741 P.2d 467
          (Okl. 1987). "Cause in fact, on the other hand, deals with the
          'but for' consequences of an act. 'The defendant's conduct is
          a cause of the event if the event would not have occurred but
          for that conduct.' " Id. at 470 (quoting Prosser and Keeton,
          The Law of Torts 266 (5th ed. 1984)).

Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993).


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         The elements of a negligence action are: (1) a legal duty, (2) breach of
that duty which, (3) in fact causes, and (4) proximately causes (5) damages or
injury to the plaintiff. No negligence claim can succeed in the absence of any of
these elements. See Perez v. McConkey, 872 S.W.2d 897, 905 (Tenn. 1994); See
also Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993); McClenahan v.
Cooley, 806 S.W.2d 767, 774 (Tenn.1991).         A defendant in response to the
proof of those elements may allege, as Tri County did, the possible intervening
and superseding activity of an employer such as Coates Construction, which,
though it cannot be a proximate cause of the injury, may so overbear the actions
of the defendant as to negate cause in fact. This is the very situation addressed
in Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252 (Tenn. 1997):
             There is no question that the Court in Ridings considered
         the "fairness" arguments advanced here by the defendants
         and made a policy decision to leave immune employers out
         of the assessment of fault. We thus decline the defendants'
         invitation to reverse Ridings or otherwise depart from the
         rule adopted in that decision.

             However, before leaving Ridings, we are inclined to add
         that our decision in that case can best be understood when
         considered in the analytical context in which the case came
         to the Court. The defendants in Ridings, like the defendants
         here, wanted the jury to assess fault against the employer by
         arguing that the employer's actions were the proximate, or
         legal, cause of the plaintiff's injuries. Of course, the
         employer cannot be found to be the proximate, or legal, cause
         of the plaintiff's injuries because the employer is immune
         from tort liability under Tenn.Code Ann. § 50-6-108(a). By
         enacting Tenn.Code Ann. § 50-6-108(a), the legislature has
         already determined that for policy reasons the employer may
         not be the legal cause of the plaintiff's injuries.

            This is not to say, however, that the employer cannot be
         found by the trier of fact to have been a cause in fact of the
         plaintiff's injuries. If the rule were otherwise, the defendants
         would effectively be precluded from presenting a defense. A
         defense that the product was not defective or unreasonably
         dangerous when it left the defendants' control would not be
         credible unless the defendants were permitted to introduce
         evidence as to what actually happened to the product leading
         up to the incident that injured the plaintiff. Excising the
         employer from that discussion would be tantamount to
         drawing a line which would make discussion of the case to


                                        6
         be tried difficult, if not impossible. The end result would be
         that the jury would not hear evidence of the true facts
         surrounding the product that caused the plaintiff's injuries
         but, nonetheless, be asked to determine fault and hence
         liability for damages. Prohibiting the introduction of such
         evidence could result in a defendant, who was not a cause in
         fact of the plaintiff's injuries, being required to pay for the
         harm anyway.

Snyder, 955 S.W.2d at 256.

         In Snyder a manufacturer attempted to raise in its defense in federal
court the action of an immune employer to prove, inter alia, that the product it
manufactured was not unreasonably dangerous and only became so upon
subsequent alteration. Snyder, 955 S.W.2d at 255. On certification from the
federal District Court, the Tennessee Supreme Court held that the actions of that
employer worked not to implicate the employer under comparative fault, but to
show a break in the causal chain from manufacture to dangerous condition to
injury. See generally Tenn. Code Ann. § 29-28-108.


         In the case at bar, the defendant was alleged to have violated statutes
and the provisions of the National Electric Safety Code with regard to the
operation and maintenance of power lines at safe distances.


         Attendant to those allegations supporting the legal duty of Tri County
and its concomitant liability for breach of that duty was the major question of
whether any actions or omissions on the part of Tri County actually caused Mr.
Hauskins injury. This question of cause in fact must be separated from the
question of proximate cause. The charge to the jury must articulate the
difference. We find that the trial court properly disposed of any possible
confusion. The trial court charged the jury:
            The point that I want to state to you, that I think is
         important, is that you, as a jury, may consider only the
         evidence that's relevant to the events leading up to the
         incident that injured Mr. Hauskins. Tri County may not ask
         the jury to assign fault to the employer of Mr. Hauskins. Tri
         County may not take the legal position that Mr. Hauskins's
         employer's actions were the legal cause of Mr. Hauskins's
         injuries. You may consider the actions of the employer only
         in assessing whether Mr. Hauskins has met his burden of

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          establishing the elements necessary to recover against Tri
          County. You shall not assess -- I'm sorry. You shall not --
          I'm going to say it anyway -- assess fault against Mr.
          Hauskins's employer. The employer's legal responsibility, if
          any, will be determined under the Workman's Compensation
          Act.

          The statutory duties under Tennessee Code Annotated section 68-103-
102, 103 and 105 rested upon Mr. Hauskins' employer. Under the proof the jury
could find that the accident would not have happened "but for" the failure of the
employer to notify Tri County that framing construction on the house had started,
thereby triggering the duty of Tri County to move the lines or cut off the power.
This goes to the jury as negating "cause in fact" of the alleged negligence of the
defendant, an issue on which plaintiffs bear the burden of proof.


          Concerning Appellant Hauskins’ third issue, this Court will not view
individual charges in a vacuum. We consider the jury charge in its entirety, and
uphold it as long as it fairly defines the issues and does not mislead the jury. See
e.g. Memphis St. Rwy. v. Wilson, 108 Tenn. 618, 620, 69 S.W. 265, 265 (1901);
Abbot v. American Honda Motor Co., 682 S.W.2d 206 206, 209 (Tenn. Ct. App.
1984). See also Smith v. Parker, 213 Tenn. 147, 156, 373 S.W.2d 205, 209
(1963).


          We find in viewing the jury charge as a whole that the issues were
properly placed before the fact finders, and that the jurors were not misled. The
evidence was properly limited and the jury properly instructed. The verdict
returned found Mr. Hauskins 100% at fault.


              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


                                         8
         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 Const., Inc., 575 S.W.2d 4, 5 (Tenn. 1978).

         As a result, for the reasons and under the authorities cited herein, the
judgment of the trial court is affirmed, and the case is remanded for further
proceedings as needed. Costs on appeal are taxed against appellant.




                                ______________________________________
                                WILLIAM B. CAIN, JUDGE


CONCUR:


_________________________________
WILLIAM C. KOCH, JR., JUDGE


_________________________________
PATRICIA J. COTTRELL, JUDGE




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