                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  January 22, 2003 Session

                    TRUMBO, INC. V. WITCO CORPORATION

                       Appeal from the Circuit Court for Shelby County
                         No. 70315-8 T.D.    D’Army Bailey, Judge



                    No. W2002-01186-COA-R3-CV - Filed August 11, 2003


This case involves the loss of evidence. A metal fabrication company modified a fat melting tank
for another company. Later, an employee of the melting tank company was severely injured by hot
melted fat while working with the modified tank. Following the accident, as part of an investigation,
the employer removed the two temperature gauges attached to the tank. The employer paid workers’
compensation benefits to the employee. The employee then sued the fabrication company that
modified the tank. The employer intervened to assert its statutory lien under the workers’
compensation laws, so that it could recover any monies paid to the employee by the fabrication
company. Five years after the accident, the fabrication company sought production of the
temperature gauges from the employer, as part of its defense in the lawsuit filed against it by the
employee. The employer was unable to locate the gauges. The fabrication company settled the
lawsuit filed by the injured employee, and filed a claim against the employer for spoliation of
evidence and negligence. The fabrication company argued that it was forced to settle the underlying
lawsuit with the employee, in part because of the missing gauges. The trial court granted a motion
for summary judgment in favor of the employer, finding that the employer did not have a duty to
preserve the evidence and that the fabrication company had not established causation. The
fabrication company appeals. We affirm, finding that regardless of whether the employer had a duty
to preserve the temperature gauges, the fabrication company had not proffered evidence that the
gauge would have materially assisted it in defending the lawsuit filed by the employee, and thus was
unable to establish causation.

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

HOLLY M. KIRBY, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Gary K. Smith and Sherry S. Fernandez, Memphis, Tennessee, for appellant, Trumbo, Inc.

James B. Summers and Richard S. Wade, Memphis, Tennessee, for appellee, Witco Corporation.
                                                       OPINION

        In 1993, Trumbo, Inc. (“Trumbo”) a metal fabrication company, modified a fat flaking tank
for Witco Corporation (“Witco”). Witco’s business included the use of such fat flaking tanks to melt
fat flakes into oil. On June 7, 1994, Witco employee Russell Ullery (“Ullery”), was operating the
fat melting tank. The tank ejected hot oil on Ullery, severely burning him over most of his body.
Witco’s workers’ compensation insurance provided benefits to Ullery.1

        Later in 1994, Witco conducted an internal investigation of the cause of the accident, in order
to prevent such an accident from happening again. Had proper procedure been utilized, Ullery would
have engaged the agitator in the tank, to mix the fat as it melted, at a temperature of 130 to 150
degrees. The investigation team determined that, on the day Ullery was injured, he engaged the
tank’s agitator when the temperature of the liquified fat inside the tank was too high. The
investigation team estimated that, at the time Ullery engaged the agitator in the tank, the temperature
of the melted fat had reached approximately 220 degrees. The agitator caused water at the bottom
of the tank to come into contact with a heating coil. The elevated temperature caused the water to
instantly vaporize, which forced a substantial amount of the superhot oil out of the top of the tank
and onto Ullery.

       During the course of its investigation, Witco removed the two temperature gauges that were
attached to the fat melting tank. Witco’s investigation did not indicate that temperature gauge failure
was a contributing factor in the accident.

        On June 6, 1995, Ullery and his wife sued the metal fabrication company, Trumbo, under
theories of failure to warn, negligence, and strict liability. They sought $10,000,000 in damages.
As noted above, Ullery had previously received workers’ compensation benefits from Witco.
Consequently, Witco intervened in the Ullerys’ lawsuit against Trumbo, in order to secure a statutory
lien on any proceeds the Ullerys might recover from Trumbo.2




         1
          The record and appellate briefs indicate that U llery received $ 6,00 0,00 0 in workers co mpensation benefits,
and that Ullery is now dece ased.

         2
             Section § 50-6-11 2(c)(1) o f the Tennessee Code Annotated provides for such a lien. It states:

         (c) (1) In event of such recovery against such third person by the worker, or by those to whom such
         worker’s right of action survives, by judgment, settlement or otherwise, and the employer’s maximum
         liability for workers’ compensation under this chapter has been fully or partially paid and discharged,
         the employer shall have a subrogation lien therefor against such recovery, and the employer may
         intervene in any action to pro tect and enforc e such lien.

Tenn. Co de A nn. § 5 0-6-1 12(c)(1) (1991).



                                                            -2-
        Ullery’s lawsuit against Trumbo proceeded, and the parties engaged in considerable
discovery. During the course of discovery, Trumbo learned that, in Witco’s internal investigation
of the accident, Witco had removed the two temperature gauges that were attached to the tank.

        On May 12, 1999, nearly four years after Ullery filed his lawsuit and nearly five years after
the accident, Trumbo requested production of the two temperature gauges from Witco. Witco
searched for the gauges but was unable to find them. Witco’s response to the request for production
stated that “[t]he temperature gauges from the [tank] can not be found at this time.”

       Shortly thereafter, Trumbo answered Witco’s intervening complaint and filed a counterclaim
against Witco. In the counterclaim, Trumbo alleged that Witco intentionally destroyed the
temperature gauges, and argued that this constituted spoliation of evidence and hindered Trumbo’s
defense of Ullery’s claims against Trumbo. As a result, Trumbo argued that it should be indemnified
by Witco for any damages Trumbo was required to pay to Ullery, that Witco was not entitled to
subrogation, and that Witco had waived certain remedies because of the lost evidence. In response,
Witco moved to dismiss Trumbo’s counterclaim based on failure to assert a cause of action.

         Trumbo then settled the underlying lawsuit filed by the Ullerys. After the settlement, only
Trumbo and Witco remained in the lawsuit. On June 30, 2000, Trumbo amended its counterclaim
against Witco, to expressly include claims of intentional spoliation of evidence, negligent spoliation
of evidence, and negligence. Trumbo asserted that Witco should be responsible to Trumbo for the
settlement Trumbo paid to the Ullerys, arguing that Trumbo was forced to settle because Witco’s
failure to produce the temperature gauges left Trumbo unable to defend itself against the claims filed
by the Ullerys.

        More discovery and depositions ensued. During the discovery, it was established that the
temperature gauge at the bottom of the fat melting tank had not been operational for a number of
years. Consequently, Witco employees operating the tank relied on the tank’s second temperature
gauge, located near a staircase. Four Witco employees gave deposition testimony that this second
gauge was operational and registering temperatures both before and after Ullery’s accident. Witco
employee Stephen Black testified that the gauge was working during the two or three days prior to
the accident and that, when Black arrived at the plant after Ullery’s accident, the gauge registered
190 degrees. Employee Ester Earl testified that, after Ullery was injured and had been loaded into
the ambulance, Earl went back to the fat melting tank and saw that the temperature gauge read 200
degrees. Employee Sylvester Leigh stated that, the week prior to the accident, the gauge was
working, and that, after the accident, the gauge was registering temperatures between 200 and 225
degrees. Employee James Turner testified that he also went to the fat melting tank after Ullery was
injured and taken away by the ambulance. At that time, Turner noted that the temperature gauge
registered at least 200 degrees.

        After the accident, both temperature gauges were removed from the tank. John Litten
(“Litten”) was a Witco employee at the time of the accident. Litten testified that, after the accident,
the gauges were brought to him for testing on a calibration unit. At that time, neither gauge


                                                 -3-
functioned properly. In the course of the discovery, Litten produced a calibration certificate for the
key gauge near the staircase; the certificate was dated June 14, 1994. Litten said that the gauges
were broken when he received them, and that he knew of no tests that could be conducted after
removal to determine if the gauges were working at the time of Ullery’s accident.

        Jim Armstrong (“Armstrong”), was a process engineer at Witco at the time of Ullery’s
accident. Armstrong stated that, after the gauges were tested, he made notations on the calibration
certificate for the gauge located near the staircase. His note on this calibration certificate states:
“Instrument twisted when being removed. Probably damaged instrument causing no reading.”
Based on the position of certain parts of the gauge, Armstrong deduced that the gauges were twisted
during removal. He concluded that the damage sustained by the gauge during removal caused it to
no longer be operational.

        Armstrong noted that his supervisor had asked Litten to deliver the gauges to Armstrong after
Litten completed his testing. After Litten tested the gauges, Litten put them on top of a file cabinet
in Armstrong’s office. Armstrong said that the last time he remembered seeing the gauges was in
late 1994, when he moved out of his office into a new office. After that, the gauges could not be
found.

        On January 12, 2001, the trial court heard Witco’s motion to dismiss. By the time of the
hearing, Witco’s motion to dismiss had been converted into a motion for summary judgement, since
depositions and discovery materials were put before the trial judge for his consideration. At the
hearing, Trumbo’s counsel argued that Witco had a duty to preserve the gauges because of the
special relationship that existed between Witco and Trumbo, and because at the time the gauges were
removed, Witco knew that Ullery could potentially pursue a cause of action against Trumbo. The
trial court inquired into Trumbo’s ability to establish causation of its injury, that is, whether loss of
the gauges actually hindered Trumbo’s defense. Trumbo’s counsel asserted that the question of
whether the temperature gauges were functioning properly and would have been beneficial to
Trumbo in the underlying lawsuit Trumbo settled with Ullery was a disputed fact for the jury to
determine.

       Witco’s counsel argued that Witco had no duty to preserve the gauges. Witco noted that, at
no point prior to Trumbo’s request for production of the temperature gauges, years after the accident,
did Trumbo ask for the gauges. Counsel for Witco contended that one gauge had been broken since
long before the accident, and that the second gauge, relied upon by employees, was broken during
removal for testing. Witco emphasized that neither Witco’s internal investigation nor the lengthy
discovery in the lawsuit had yielded any evidence that malfunction of the second gauge was a
possible cause of the accident. Witco’s counsel stated:

                 There was never any question in anybody’s mind at that time as to whether
        or not there was—that the gauges were a problem at the time of the accident.




                                                  -4-
               . . . I will represent to the Court that there is no testimony in 75 depositions
       that anyone believed that the temperature gauge was not operating at the time that
       Mr. Ullery got burned. It’s just not there. No one believed that. And so no one
       believed that there was a problem with the gauges and because of that, they went on.

Witco also emphasized that the undisputed evidence in the record was that, once the gauge was
removed, there was no way to determine whether it was operating properly on the day of the
accident:

       The only testimony in this record relative to the value of those gauges for testing
       purposes—and this is it and this is all there is and it is undisputed—the only
       testimony in this record is that there are no tests, none whatsoever that can be
       performed on a temperature gauge as they existed at the time that they were tested at
       Witco in 1994.

                There are no tests that would tell us, one, whether it was working at the time
       of the incident and, two, what the temperature would have been. That’s in the record.
       It is undisputed. There have been no countervailing affidavits.

               They have not come forward with another expert who says, oh, no, no, if I had
       those gauges, I could show this, I could show that. Oh, I could do all kinds of stuff.
       That is absolutely undisputed, Your Honor.

               That was one of the questions that was asked of Mr. Litten who came back
       for a second deposition and he was asked that very question, if you had—are you
       aware of any tests in this industry that would enable you to be able to determine
       whether or not what the temperature would have been, no; whether they were
       working at the time of the accident, no. Once they’re broken, they are broken.

       And what happened was that the gauge got snapped, twisted. Somehow or another
       the face got twisted in the process of removal. That’s the surmise. It is disputed.
       But nevertheless, they know that it didn’t work at the time of the test. No more, no
       less, that’s all they know, it didn’t work at the time of the test.

               But since they had eyewitness testimony that said it was working, they saw
       it three—there are three different temperatures that are in the record that show what
       the temperatures were shortly after the accident . . . . So there is evidence, substantial
       evidence in the record that the gauges were working at the time of the accident.

Based on this, Witco contended, the undisputed evidence established that the second gauge was
working on the day of the accident, it did not work after both gauges were removed, and even if the
gauges had been produced, there was no way to test whether either was working properly on the day
of the accident.


                                                  -5-
        At the conclusion of the hearing, the trial court found that Witco had no duty to preserve the
gauges and that, even if Witco had such a duty, Trumbo failed to establish causation. The trial judge
stated:

       I don’t believe that there is a duty on the part of Witco to reserve those gauges under
       the facts as they have developed in this case. . . .
               ....
               . . . [E]ven if there were such a duty, it would be the element of causation and
       I do not believe that Trumbo can establish causation of damage to it by the claimed
       breach in anything more than a final degree of speculation on the trier of fact which
       would not be admissible at law, and accordingly, I grant the motion [for summary
       judgment].

Thus, Witco’s motion for summary judgment was granted because the trial court found that (1)
Witco had no duty to Trumbo to preserve the temperature gauges, and, (2) even if Witco had such
a duty to Trumbo, Trumbo could not establish causation of damage to it because of the missing
temperature gauges. The trial court entered a written order for the grant of summary judgment on
January 26, 2001. From this order, Trumbo appeals.

       On appeal, Trumbo argues that the trial court erred in finding that Witco had no duty to
preserve the temperature gauges and that Trumbo could not prove causation, and thus erred in
granting Witco’s motion for summary judgment. Trumbo also asserts that this Court should adopt
an independent cause of action for spoliation of evidence.

        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.04. The burden of demonstrating that no genuine issue of material fact
exists is placed on the party moving for summary judgment. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. Id. Summary judgment is only appropriate when the
facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell
v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Because only questions of law are involved, our
review of the trial court’s grant of summary judgment is de novo on the record before this Court.
Bain, 936 S.W.2d at 622; Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        We first address Trumbo’s argument that the trial court erred in finding that it could not
establish causation. Trumbo claims that the issue of causation was a question for the jury, and that
consequently summary judgment was improper. Trumbo asserts that the outcome of the underlying
lawsuit filed against Trumbo by the Ullerys would have been different had Trumbo had the
opportunity to evaluate the temperature gauges. They argue that Witco would not have removed and
tested the gauges if the functioning of the gauges had not been an issue during Witco’s investigation
of the accident. Trumbo contends that its inability to test the gauges precludes establishment of the


                                                 -6-
fact that no tests could be performed to determine if the temperature gauges were working at the time
of Ullery’s accident.

        In a negligence action, the plaintiff must prove that the defendant owed the plaintiff a legal
duty, that the defendant’s conduct fell below that duty, that the plaintiff was injured, that the
defendant was the cause-in-fact of the injury, and that the defendant was the proximate cause of the
injury. See Roe v. Catholic Diocese of Memphis, Inc., 950 S.W.2d 27, 31 (Tenn. Ct. App. 1996)
Cause-in-fact, or causation, has been described as “the injury or harm [that] would not have occurred
‘but for’ the defendant’s negligent conduct.” Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.
1993). Regarding causation, this Court has said that:

       Causation, or cause in fact, concerns the relationship between the defendant’s
       conduct and the plaintiff’s injuries. See Kilpatrick v. Bryant, 868 S.W.2d 594, 598
       (Tenn. 1993). The inquiry is whether the defendant’s conduct caused the harm to
       plaintiff. See Quaker Oats Co. v. Davis, 232 S.W.2d 282, 294 (Tenn. Ct. App.
       1949). This inquiry is one for the jury to determine, “unless the uncontroverted facts
       and inferences to be drawn from them make it so clear that all reasonable persons
       must agree on the proper outcome.” Roe v. Catholic Diocese of Memphis, Inc., 950
       S.W.2d 27, 31 (Tenn. Ct. App. 1996).

Hamblen v. Davidson, 50 S.W.3d 433, 440 (Tenn. Ct. App. 2000). Thus, although causation is
normally a question of fact for the jury, if the inferences drawn from the evidence can lead
reasonable minds to only one conclusion, the issue of causation is for the court, not for the jury.

         In the case at bar, the inferences drawn from the undisputed evidence lead to only one
conclusion. The evidence is uncontroverted that Witco’s internal investigation of the accident
indicated that the temperature gauge normally relied upon by Witco’s employees was functioning
at the time of the accident and was not a contributing factor to Ullery’s accident. Four employees
testified that they saw the temperature gauge in question register certain temperatures either prior
to or after the accident. The consistent testimony was that the temperature reading after the accident
was well above the range of safe temperatures for engaging the tank’s agitator. The uncontroverted
evidence also indicates that the key gauge was broken when it was removed by Witco for its
investigation. Once this gauge was broken, the undisputed evidence was that there were no tests to
determine whether the gauge was operating properly on the day of Ullery’s accident. Trumbo
proffered no evidence to the contrary on any of these points. Under these circumstances, there is no
evidence in the record from which a jury could reasonably conclude that, had the temperature gauges
been produced to Trumbo in response to its discovery request, it would have benefitted Trumbo’s
defense of Ullery’s claims against Trumbo. Accordingly, we must conclude that the trial court did
not err in holding that Trumbo could not establish causation. Thus, the trial court did not err in
granting summary judgment to Witco on this basis. This holding pretermits Trumbo’s argument
regarding Witco’s duty to preserve the temperature gauges. In addition, in light of our holding on
causation, we decline to consider recognizing the tort of spoilation of evidence in this appeal.



                                                 -7-
        The decision of the trial court is affirmed. Costs are taxed to the appellant, Trumbo, Inc., and
its surety, for which execution may issue, if necessary.




                                                        ___________________________________
                                                        HOLLY M. KIRBY, J.




                                                  -8-
