                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 13, 2004 Session

            CHERYL O’BRIEN v. RHEEM MANUFACTURING CO.

                      Appeal from the Circuit Court for Montgomery County
                            No. C10-694 John H. Gasaway, Judge



                      No. M2003-00530-COA-R3-CV - Filed May 27, 2004


In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in
favor of the defendant manufacturer. We affirm.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Cheryl O’Brien.

Michael North and Ronald G. Harris, Nashville, Tennessee, for the appellee, Rheem Manufacturing
Co.

                                             OPINION

        This wrongful death action is predicated upon the tragic death of a sixteen year old resident
of Clarksville, Tennessee. Eric Cole Riley lived with his mother, Cheryl O’Brien, in her home at
729 Jace Drive in Clarksville. In the early evening hours of April 25, 1994, Eric Riley was standing
in the two car garage of the home preparing to fill the gas tank in his lawnmower when he accidently
dropped the gasoline container. Fumes from the spilled gasoline traveled over to a gas fired water
heater located in the garage and resulted in a fiery explosion, which severely burned Riley. After the
explosion young Riley, engulfed in flame, ran from his house to the home of a neighbor across the
street. The neighbor, Carlyle Leffel, observing Riley, raced from his house, covered Riley with a
blanket, and extinguished the flames. Eric Riley died as a result of his injuries on May 3, 1994.

      The voluminous record in this case details litigation that commenced on April 24, 1995, with
a complaint filed by Cheryl O’Brien as parent and next of kin of her deceased son, Eric Cole Riley.
Because of the limited nature of the question presented in this appeal, detailed recitation of the
history of this case is not necessary. It suffices to recognize the zeal, diligence, and prodigious effort
of all counsel in the representation of their respective clients.

         The original complaint was filed against the contractor who constructed the home in 1991,
the installer of the Rheem gas fired water heater, the installer of the gas lines servicing the water
heater, the City of Clarksville and Rheem Manufacturing Company, the designer and manufacturer
of the water heater. The complaint charged various acts of negligence as to all of these defendants.
One by one over the next three and a half years, Plaintiff either settled with or voluntarily dismissed
all defendants except for Rheem Manufacturing Company. On July 27, 1999, Plaintiff dismissed
all allegations of negligence against Rheem and proceeded only on allegations of strict liability in
tort. Rheem then raised in its defense comparative fault on the part of all other previous defendants.
The case went to trial on August 9, 1999, and eight days later the jury returned a verdict in favor of
Defendant, Rheem Manufacturing Company.

        The trial court, Honorable James E. Walton presiding, thereafter granted Plaintiff’s motion
for a new trial on the basis of errors made in the admission of evidence. The second trial of the case
began on August 6, 2001, and ended in a mistrial when the jury was unable to agree on a verdict.
On September 7, 2001, Plaintiff filed a third amended complaint alleging fraudulent concealment
and misrepresentation. The case was tried again on July 8th through 12th, 2002, with the jury
returning a verdict in favor of Defendant. Plaintiff filed a motion for a new trial predicated only
upon the grounds that the evidence preponderated against the verdict of the jury. On January 27,
2003, the trial court, Honorable John H. Gasaway, III, presiding, approved the verdict of the jury and
denied the motion for a new trial.

         Plaintiff appealed asserting these issues on appeal:

                 I.      Was there material evidence in the record to support the jury’s verdict
         that the Rheem gas fired water heater was not defective in design?
                 II.     Was there material evidence in the record to support the jury’s verdict
         that the Rheem gas fired water heater was not unreasonably dangerous?
                 III.    Was there material evidence in the record to support the jury’s verdict
         that Rheem did not misrepresent the true nature of this heater by concealment of what
         it knew about the real potential for danger to consumers who have gas fired hot water
         heaters in their garages?

       The case is thus presented to this Court on the singular issue of whether substantial material
evidence exists in the record to support the jury’s verdict.1 In an appeal challenging a jury verdict
wherein the trial judge, acting as a thirteenth juror, has approved that verdict, appellate review cannot


         1
            Defendant asserts additional issues claiming that the trial court erred in allowing Frederick Grim to testify
as an expert and erred in denying Rheem’s motion for a directed verdict. Defendant further asserts that Judge W alton
was in error in granting a new trial subsequent to the first trial in this case. Because of the disposition made of Plaintiff’s
issues on appeal, it is unnecessary to address the issues presented by Defendant.

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be based upon the weight of the evidence, but only on the existence of material evidence supporting
the verdict.

               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 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. City of Chattanooga
       v. Rogers, 201 Tenn. 403, 299 S.W.2d 660 (1956); D. M. Rose & Co. v. Snyder, 185
       Tenn. 499, 206 S.W.2d 897 (1947); City of Chattanooga v. Ballew, 49 Tenn.App.
       310, 354 S.W.2d 806 (1961); Dynamic Motel Management, Inc. v. Erwin, Tenn.App.,
       528 S.W.2d 819 (1975). Of course, these principles apply as well in a breach of
       contract case tried by a jury as in a personal injury or other tort action.

Crabtree Masonry Co. v. C & R Const., Inc., 575 S.W.2d 4, 5 (Tenn. 1978).

        In this products liability case, Plaintiff depended almost entirely on the testimony of expert
witnesses Fred Grim and Paul Daugirda not only in efforts to establish that the design of the Rheem
gas fired water heater was defective and unreasonably dangerous, but also as the basis for the
assertion of misrepresentation by concealment. Although a verdict for Plaintiff based upon such
evidence may have been unassailable on appeal, the verdict as approved by the trial judge, in fact,
was for Defendant. Plaintiff bore the burden of proving any defective design, unreasonably
dangerous condition of the water heater, and concealment by misrepresentation. The jury is free to
accept or reject expert testimony and may choose to reject such testimony even if it is not
contradicted.

       Appellant places great reliance upon the testimony of Sgt. Kilpatrick that in his
       opinion appellee’s proposed business would create a traffic hazard, but, in our view,
       this opinion testimony although– not contradicted by an opposing contrary opinion–
       is not conclusive. Expert opinions, at least when dealing with highly complicated
       and scientific matters, are not ordinarily conclusive in the sense that they must be
       accepted as true on the subject of their testimony, but are purely advisory in character
       and the trier of facts may place whatever weight it chooses upon such testimony and
       may reject it, if it finds that it is inconsistent with the facts in the case or otherwise
       unreasonable. Even in those instances in which no opposing expert evidence is
       offered, the trier of facts is still bound to decide the issue upon its own fair judgment,
       assisted by the expert testimony. Act-O-Lane Gas Service Co. v. Hall, 35 Tenn.App.
       500, 248 S.W.2d 398 (1951).


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Gibson v. Ferguson, 562 S.W.2d 188, 189-90 (Tenn. 1976).

       This case is much like Dickey v. McCord, where the jury returned a verdict for Defandant.
This Court affirmed the judgment holding that “a jury is not bound to accept an expert witnesses’
testimony as true.” 63 S.W.3d 714 (Tenn.Ct.App. 2001).

        The expert testimony offered by Plaintiff is not uncontradicted in the record. Defendant’s
expert Jacob Hall testified:

       Q.      . . . Is the water heater that’s the subject of this case defective?
       A.      No.
       Q.      Is the water heater unreasonably dangerous?
       A.      No.
       Q.      Can this water heater be safely installed in a residential garage?
       A.      Yes, as long as the conditions we’ve gone through are taken care of.

       ...

       Q.     What are the conditions that must exist in order for a water heater to be safely
              installed in a residential garage?
       A.     Elevated, and then for the flammable liquids to be properly stored in
       approved containers.
       Q.     Are those conditions communicated to the consumer by any information that
              Rheem provides with the water heater?
       A.     Yes, sir.
       Q.     How are those conditions communicated to the consumer?
       A.     We have a label of that information on the water heater, and then that
       information is also repeated in the use and care manual.
       Q.     And that’s the label in the use and care manual that we’ve been discussing in
       some length over the last two and a half days?
       A.     Yes, sir.

        The jury verdict in this case has been approved by the trial judge. Neither the jury nor the
trial court is required to accept Plaintiff’s expert proof, even if it is not contradicted. There is
substantial material evidence in the record to support the verdict of the jury and it does not matter
that there is substantial material evidence that would have supported a verdict for Plaintiff.
Appellate review of this jury verdict is at an end. Tenn. R. App. P. 13(d).

        Judgment of the trial court is in all respects affirmed with costs assessed to Plaintiff. The
case is remanded to the trial court for any further proceedings necessary.




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      ___________________________________
      WILLIAM B. CAIN, JUDGE




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