                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON


PEGGY STRICKLIN ARNOLD,                 )
and EDWARD L. ARNOLD,                   )
                                        )
            Plaintiffs/Appellants,      ) Shelby Circuit No. 61907 T.D.
                                        )
VS.                                     ) Appeal No. 02A01-9803-CV-00075
                                        )
DEHONEY BISHOP INTERIORS,               )
INC., d/b/a DEHONEY INTERIORS,          )

            Defendant/Appellee.
                                        )
                                        )                                  FILED
                                                        September 18, 1998
           APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                       AT MEMPHIS, TENNESSEE             Cecil Crowson, Jr.
                 THE HONORABLE KAY S. ROBILIO, JUDGE     Appellate C ourt Clerk




MICHAEL S. LONG
LONG, UMSTED & JONES
Memphis, Tennessee
Attorney for Appellants



THOMAS L. BRANNON
McWHIRTER & WYATT
Memphis, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                            ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.

      Plaintiffs Peggy Stricklin Arnold and Edward L. Arnold (hereinafter referred to as
“Plaintiff” or “Plaintiffs”) appeal the trial court’s order granting summary judgment in favor

of Defendant Dehoney-Bishop Interiors, Inc. (hereinafter referred to as “Defendant” or

“Dehoney”). For the reasons hereinafter stated, we hereby reverse the judgment of the trial

court and remand this case for trial.



                            I. Factual and Procedural History



       In October of 1993, Bowden Building Corporation was the general contractor for a

model home constructed at 2275 Lake Springs Lane in Cordova, Tennessee. Dehoney

Bishop Interiors was a subcontractor hired by Bowden to install carpet in the model home.

Bowden is the owner and manager exercising exclusive control over the home. Bowden’s

models serve as a visual depiction of the style and layout of a home built by the Bowden

Building Corporation.



       On October 17, 1993, Plaintiff Peggy Strickland Arnold visited the said model home

which was open to the public. She was wearing Reebok running shoes at the time. Ms.

Arnold initially viewed the downstairs area of the model home and then proceeded upstairs

to view the remaining rooms. On her way upstairs, she noticed that the hand rail was loose

at the top of the stairway. Ms. Arnold did not notice any condition concerning the carpet on

her way up the stairs. After Ms. Arnold had finished viewing the upstairs area, she began

walking down the stairway. Ms. Arnold was not holding the hand rail and as she reached

the second step in her descent, she felt as if her feet were knocked and the carpet pulled

out from under her. As a result, Ms. Arnold fell down the stairs receiving multiple injuries,

including a ruptured disk in her neck.



       Steven Ottosen, agent for Bowden Building Corporation, had traversed the stairs

in question approximately 20 times on that same day and had traversed the stairs

hundreds of times in the preceding months.          Ottosen never noticed any defective

conditions with the carpet. More than 200 people had used the same stairs in the month

preceding Ms. Arnold’s fall, none of which reported any dangerous or defective condition



                                              2
of the carpet and none of whom tripped or fell.



       The carpet had been installed on the stair by Defendant Dehoney Bishop Interiors,

Inc. on or about June 7, 1993. The carpet condition was repaired by employees of the

defendant on October 18, 1993.



       On May 23, 1994, Plaintiffs filed a Complaint for Money Damages, and filed an

Amended Complaint for Money Damages on June 30, 1994. Defendants filed their answer

on August 8, 1994. A motion for Summary Judgment was filed by Defendant on November

7, 1997, with Plaintiffs filing their response on December 4, 1997.



       In support of its Motion for Summary Judgment, Defendant contended that Plaintiffs

did not come forth with evidence as to the material issues of breach of duty of care owed

Ms. Arnold by it, or that it had any notice, actual or constructive, of any defective condition

in the carpet or the installation. Defendant asserted that Plaintiffs did not present evidence

to these material issues upon which reasonable minds can disagree. Additionally,

Defendant contended that Plaintiffs could not prove essential elements of a prima facie

case against Defendants. Particularly, Defendant argued that the evidence is

uncontradicted that it used reasonable care in installing the carpet in the model home.

Also, Defendant insisted that it did not breach a duty to Ms. Arnold because no allegedly

defective condition existed. Alternatively, Defendant contended that if a defective condition

did exist, it had no notice of the condition.



       In responding to Defendant’s Motion for Summary Judgment, Plaintiffs contended

that there is an inference that the carpet was negligently installed or it would not have

come loose when Ms. Arnold walked on it. Plaintiffs pointed to the testimony of the carpet

installer, Fred Fulgenzi, who stated that in order for properly installed carpet to come loose

someone would have to physically pull the carpet up. Hence, Plaintiffs argued that since

the carpet was loose and no one pulled it up, the carpet must have been negligently

installed for it to have come loose absent physical pulling. Plaintiffs also pointed to the



                                                3
testimony of their expert, Virgil Perry, professional carpet installer for 19 years. Perry

opined that the carpet was not properly installed on the stairs because properly installed

carpet would not come loose from merely walking on the carpet.



       The trial court found that there were no genuine issues as to any material facts in

this cause and entered an Order Granting Defendant’s Motion for Summary Judgment on

January 29, 1998. This appeal by the Plaintiffs followed.



                                         II. Notice



       This Court will dispense quickly of the Defendant’s argument that Defendant did not

breach a duty to the Plaintiff because Defendant had no notice of any allegedly defective

condition. The Defendant states that it could not have anticipated or repaired any allegedly

defective condition without notification from Bowden homes, Inc. Defendant alleges that

since Plaintiff cannot establish that Defendant owed Plaintiff any duty to warn of an

allegedly defective condition, Plaintiff cannot prove an essential element of her prima facie

negligence claim.



       Notice to the Defendant is not an issue in this case. “If proof should show it was

defendant who . . . caused the defective condition, no circumstances constituting notice

need be shown, since defendant need not be otherwise notified of what he himself has

done.” Stringer v. Cooper 486 S.W.2d 751, 757 (Tenn. Ct. App. 1972). Plaintiffs allege that

Defendant improperly installed the carpet on the stair on which the carpet came up,

causing her to fall. This is not a premises liability case. The Defendant in this matter is

Dehoney Bishop Interiors, Inc., the installer of the carpet. A consent order was entered

dismissing with prejudice Bowden, the owner of the premises upon which Plaintiff was

injured. If Bowden remained a Defendant in this action, and the defective condition was

determined to be caused by another, notice to Bowden would be an issue. However, the

only remaining Defendant is Dehoney and notice to a negligent party as to their own

negligence is not required. Defendant’s motion for summary judgment should therefore not



                                             4
be granted based upon lack of notice to Defendant.



                                 III. Improper Installation



       Decisions to grant a summary judgment do not enjoy the presumption of correctness

on appeal, because they involve only questions of law. Carvell v. Bottoms, 900 S.W.2d 23,

26 (Tenn.1995).     Our task on appeals from summary judgments is to determine

independently whether the moving party has satisfied the requirements of Tenn. R. Civ. P.

56. Hembree v. State, 925 S.W.2d 513, 515 (Tenn.1996); Payne v. Breuer, 891 S.W.2d

200, 201 (Tenn.1994). Tenn. R. Civ. P. 56.03 requires a party seeking a summary

judgment to demonstrate that there are no genuine disputes concerning the material facts

and that they are entitled to a judgment as a matter of law. Bain v. Wells, 936 S.W.2d 618,

622 (Tenn.1997); Wyatt v. A-Best Co., 910 S.W.2d 851, 854 (Tenn.1995).



       As a general rule, negligence cases are not amenable to disposition on summary

judgment unless, from all the facts together with the inferences to be drawn therefrom,

facts and inferences are so certain and uncontroverted that reasonable minds must agree.

Keene v. Cracker Barrel Old Country Store, Inc. 853 S.W.2d 501, 502-03 (Tenn. Ct. App.

1992). In negligence cases, summary judgment is only appropriate when the inferences

which may be drawn from the uncontroverted facts are so certain that all reasonable

persons must agree on them. Id. at 503. Conversely stated, if the facts are uncontroverted,

summary judgment is inappropriate if reasonable minds could differ as to the inferences

to be drawn therefrom. Id. at 503.



       The Tennessee Supreme Court expounded on the summary judgment issue in Byrd

v. Hall 847 S.W.2d 208 (1993). The Court provided the following guidance:

              In determining whether or not a genuine issue of material fact
              exists for purposes of summary judgment, courts in this state
              have indicated that the question should be considered in the
              same manner as a motion for directed verdict made at the
              close of the plaintiff's proof, i.e., the trial 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.

                                              5
                Then, if there is a dispute as to any material fact or any doubt
                as to the conclusions to be drawn from that fact, the motion
                must be denied. Poore, 666 S.W.2d at 49 ("[I]f the mind of the
                court entertains any doubt whether or not a genuine issue
                exists as to any material fact it is its duty to overrule the
                motion."); Dooley v. Everett, 805 S.W.2d 380, 383 (Tenn. Ct.
                App.1990). The court is not to "weigh" the evidence when
                evaluating a motion for summary judgment.
                Byrd v. Hall at 210-11.


       This Court will first address Defendant’s allegation that no such defective condition

existed. Defendant points out that Plaintiff was the only person to claim there was a defect

in the carpet out of the hundreds of visitors to use the stairway of the model home.

Defendant takes the position that Plaintiff did not notice a defective condition in the carpet

because no such condition existed. However, there is evidence in the record of the

following facts: The Plaintiff did slip and fall on the stairs which were carpeted by

Defendant, the carpet came up, and the carpet looked like a slide between the step above

it and the step below it after the fall. The Plaintiff reported the incident to Steve Ottosen,

a salesman at Bowden Homes, and Mr. Ottosen attempted to kick the carpet back in place

with the heel of his shoe. Defendant was called back out to the property after the incident

to check the carpet, and Defendant’s employees did in fact return to the home on October

18, 1993, the day after the incident. There is certainly sufficient evidence on this issue to

go to a jury.



        The main issue upon which this case turns is whether there is a dispute as to any

material fact concerning the Defendant’s installation of the carpet. Defendant contends that

it has presented uncontradicted evidence that the carpet at issue was installed in a

reasonable manner which is customary for the industry. Defendant asserts that the carpet

was installed properly and there is no evidence that it was improperly installed.



       Plaintiffs, on the other hand, contend that they presented sufficient circumstantial

evidence to create a triable issue for the jury. Plaintiffs admit that their expert did not view

the accident scene or the actual installation of the carpet. However, their expert testified

that there is only one way to properly install carpet, and if carpet is properly installed it will

not slip or come up unless someone physically pulls the carpet up. Plaintiffs claim that


                                                6
since there is no evidence that someone physically pulled the carpet up, the fact that it

came loose is itself evidence that it was not properly installed.



       While Defendant asserts that the evidence is uncontradicted that the carpet was

properly installed, this Court is not equally convinced. The record made available to this

Court does not contain the full deposition of Fred Fulgenzi, the installer of the carpet. This

Court has before it only such portion of that deposition as was attached to the Defendant’s

Memorandum submitted in support of their motion for summary judgment. In that portion

of the deposition, the installer appears to be saying that he does not remember this

particular installation, or the subsequent repair to the carpet. He testifies to the proper

installation procedure and testifies that this is how he regularly installs carpet. This Court

takes note of the statement made by the installer that “I’ve been doing this for twenty years.

I don’t make too many mistakes, but sometimes, we do.”



       The installer, Mr. Fulgenzi, also testified that if carpet is installed properly, it will not

normally come loose. He stated that the only thing he could think of causing it to come

loose is somebody coming and tearing it up, somebody pulling on it. He testified that

someone vacuuming the carpet would not cause it to come off the tack strip if it was

properly installed. Mr. Fulgenzi further stated that steam cleaning would not cause properly

installed carpet to come loose, but rather would shrink it up and make it tighter on the pins.

“The only way carpet can come loose if it is properly installed is somebody putting their

hand underneath it and pulling it up.”

       Plaintiffs’ expert, Virgil Perry, a carpet installer for more than 19 years, testified that

there is only one way in the industry to professionally install carpet on stairs. He testified

to the proper method, which was the same method the actual installer, Fred Fulgenzi,

testified to. Mr. Perry then testified that the only way properly installed carpeting will come

up is if you grab the carpet and lift it straight up which would get it off the tack strip and

then pull it in an upward and outward motion. He testified that for the carpet to come loose

without physically pulling it up, it would be the result of the carpet not being completely

over both sets of nails, which would not be the proper installation.



                                                7
       Mr. Perry further testified that it is not uncommon for a carpet installer

occasionally to install carpet improperly. He stated in relevant part:

              But my opinion is this because it’s a common circumstance,
              I’ve come in contact with it, all carpet stores are quite familiar
              with it, carpet layers work based on their speed. We make
              between three fifty, four hundred dollars a day, so when we
              start a job one day, we don’t want to have to go back tomorrow
              because tomorrow interferes with making the same amount of
              money that day. Okay. So sometimes we’ll run into situations
              where we’ll put that, we’ll think we got that carpet in there and
              it may not. And it’s not an uncommon call for a carpet company
              to receive, hey, listen, I’ve got--you know, one of my steps
              coming loose and maybe two. Usually no more than one or two
              because carpet layers, even though we work fast, we try to be
              pretty efficient.

On cross examination, Mr. Perry was asked if he ever had any carpet over stairs come

loose. Mr. Perry stated yes and that he would say that he was negligent in laying the

carpet when it came loose.

              Q: You would say that you were negligent?

              A: Absolutely. That’s how come I give all my customers a
              year’s warranty on the quality of my workmanship. It’s normally
              a standard in our industry because we recognize, or the
              industry recognized that there are times when men will make
              mistakes. It’s all part of the human element. And we go back
              out there and take care of that at no cost to the store, so as a
              result it’s at no cost to the--


       Mr. Perry did testify in his deposition that he did not see whether this particular

carpet was properly installed on the steps and he therefore could not state that it was

improperly installed. In his deposition testimony, he repeatedly stated that he was basing

his testimony on the proper method of installation in the industry, that there is only one

proper method, and if the carpet is properly installed it will not come loose absent

physically pulling it up. He later stated in an affidavit that it was his opinion that the carpet

was not properly installed over both sets of nails on the tack strips and that the cleaning

of the carpet, walking upon the carpet by prospective purchasers and salesmen or a

combination of those things caused the carpet to come loose from the tack strips due to

its improper installation.



       Defendant makes much of this contradiction between the deposition testimony and

the affidavit of Mr. Perry. However, the fact that the carpet was not properly installed


                                               8
appears to be Mr. Perry’s position from the beginning. While it is true that Mr. Perry

admitted in his deposition that he didn’t see the carpet and could not say that it was

improperly installed, the main thrust of his entire testimony was that it must have been

improperly installed, or the carpet would not have come up. While this Court cannot delve

into the mind of Mr. Perry, it is certainly possible that in his deposition Mr. Perry was saying

that he had no first hand knowledge, had no direct evidence, that the carpet was

improperly installed. In his affidavit, Mr. Perry states the conclusion that he was, in fact,

urging in his deposition testimony. His opinion is that the carpet was improperly installed

because that is the only way it would have come loose.



       There was additional testimony on the carpet installation from Mr. Roger Bishop, co-

president of Dehoney Bishop Interiors, Inc. He testified that Fred Fulgenzi was in fact the

installer of the carpet in question. Mr. Bishop had installed carpet for approximately ten

years, although he admitted that he had not installed carpet in quite some time. He testified

that excessive cleaning could cause a carpet to come loose from a tack strip. He stated

“maybe too much walking, which is a bit unlikely. Then, pulling it up.” He testified that

excessive cleaning could cause it to come loose because “so much water on the backing

has a tendency to make it release, and then it will also shrink it and it is just a constant

problem of shrinking and delaminating the carpet and it will finally release it at some point.”

       Facts may be inferred from circumstantial evidence, and an inferred fact may be the

basis of a further inference to the ultimate or sought-for fact. Benson v. H.G. Hill Stores,

Inc., 699 S.W.2d 560, 563. (Tenn. Ct. App. 1985). In a civil case depending upon

circumstantial evidence, it is sufficient for a party having the burden of proof to make out

the more probable hypothesis, and the evidence need not arise to that degree of certainty

which will exclude every other reasonable conclusion. Id. at 563. It is only necessary for

the plaintiff to present proof which, if believed by the jury, makes plaintiffs’ theory of the

case more probable than the theory of the defendant. Id.



       The Plaintiffs’ case relies mainly on circumstantial evidence. They put on proof that

there is only one proper way in the industry to install carpet on stairs, and if it is installed



                                               9
properly, it will not come up as it did in this case. The installer himself testified that properly

installed carpet will not come up absent someone physically pulling it up. While there was

testimony of Mr. Bishop that excessive cleaning and perhaps too much walking could

cause the carpet to come up, it is not necessary that the proof of the plaintiffs exclude

every other reasonable conclusion. Benson at 563.



       Defendant asserts that it has presented uncontradicted evidence that the carpet at

issue was installed in a reasonable manner which is customary for the industry. However,

neither party has chosen to include in the record the deposition of Mr. Fulgenzi, the

installer of the carpet, that is so crucial to this issue of proper installation. This Court does

have available in the record the portion of the deposition testimony of Mr. Fulgenzi which

was attached to Defendant’s memorandum in support of their motion for summary

judgement. This Court must base its ruling on what we have before us in the record. It

appears from his testimony that Mr. Fulgenzi does not remember this particular installation.

Unfortunately, this Court has only his answer, and not the particular question asked.

However, nowhere in the record before this Court does Mr. Fulgenzi state that he does

remember the installation. It is also of importance that Mr. Fulgenzi states that he

sometimes makes mistakes.

       The jury in this case would be entitled to consider the various inferences to be

drawn from the proven facts and to determine which in its judgment is the most probable.

The jury is not permitted to speculate as to which of two equally probable inferences is

applicable, but that is not the situation here. There is no testimony in the record before this

court that Mr. Fulgenzi remembers installing this particular carpet properly. There was

testimony of two persons that the only way properly installed carpet could come up is by

physically pulling it up. Alternatively, there was testimony by Mr. Bishop that excessive

cleaning or perhaps too much walking could cause properly installed carpet to come loose.

It would be the job of the jury to weigh the credibility of these witnesses and decide what

testimony to believe. Furthermore, if the jury chose to believe Mr. Bishop, they would also

have the job of deciding if there was, in fact, excessive cleaning or too much walking on

the carpet.



                                                10
       The jury could fairly believe the testimony of Mr. Perry and Mr. Fulgenzi that the only

way properly installed carpeting would come up is if it is physically pulled up. The jury could

then fairly infer that because this carpet came up in the absence of such physical pulling,

it was improperly installed. From the testimony of the installer himself that he sometimes

makes mistakes, and from the testimony of Plaintiffs’ expert, Mr. Perry, that it is not

uncommon to improperly install carpet on a stair or two in an otherwise proper installation,

the jury could fairly reason that Mr. Fulgenzi, while utilizing the proper method of

installation, did not properly install the carpet on this particular stair. Taking the strongest

legitimate view of the evidence in favor of the nonmoving party, we are of the opinion that

the facts and the reasonable inferences to be drawn from those facts make a prima facie

case for the plaintiff and render summary judgment inappropriate.



       We are therefore of the opinion that the trial court erred in granting Defendant's

Motion for Summary Judgment.




                                       IV. Conclusion



       The judgment of the trial court is hereby reversed and this case is remanded for trial.

Costs of this appeal are taxed to the Defendant, for which execution may issue if

necessary.




                                                                  HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.

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