                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


MARY ANN DOWDY, Parent and
Next of Kin of STEVE DOWDY,
Dec’d., and MARY ANN DOWDY,
                                         )
                                         )
                                         )
                                                  FILED
Individually; CATHY E. DOWDY,            )       December 21, 1998
Parent and Next of Kin of ARGUSTA        )
DOWDY, Dec’d., and CATHY E.              )       Cecil Crowson, Jr.
DOWDY, Individually and                  )       Appellate C ourt Clerk
EMMA DOWDY,                              )
                                         )
             Plaintiffs/Appellees,       ) Shelby Circuit No. 23930 T.D.
                                         )
VS.                                      ) Appeal No. 02A01-9709-CV-00237
                                         )
MYLES AND ARLENE WILSON,                 )
                                         )
             Defendants/Appellants.      )


            APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                        AT MEMPHIS, TENNESSEE
                THE HONORABLE JAMES F. RUSSELL, JUDGE




RICHARD McFALL
Memphis, Tennessee
Attorney for Appellant


MARSHALL L. GERBER
Memphis, Tennessee
Attorney for Appellee




AFFIRMED




                                                             ALAN E. HIGHERS, J.



CONCUR:

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

DAVID R. FARMER, J.
     Defendants-Appellants, Myles and Arlene Wilson, appeal the ruling of the trial court
which awarded Plaintiff-Appellee Mary Dowdy, as next of kin of the deceased, Steve

Dowdy, and Plaintiff-Appellee Cathy Dowdy, as next of kin of the deceased, Argusta

Dowdy, damages for the wrongful deaths of their children.



                            I. Factual and Procedural History



       Plaintiff, Mary Ann Dowdy, is the natural mother and next of kin of the deceased,

Steve Dowdy, who was ten months old at the time of his death. Plaintiff, Cathy E. Dowdy,

is the natural mother and next of kin of the deceased, Argusta Dowdy, who was three years

old at the time of his death. Plaintiff, Emma Dowdy, is the mother of the plaintiffs Mary and

Cathy Dowdy. The Defendants, Myles and Arlene Wilson, were the owners of a duplex

located at 1673-75 Ash Street in Memphis. Mary Dowdy lived in the duplex with her son

(Steve Dowdy), her sister (Cathy Dowdy) and her sister’s son (Argusta Dowdy). Mary and

Cathy Dowdy each had other children than the ones who perished in the fire, who were the

siblings of the deceased children.



       On or about February 6, 1988, a fire occurred on the 1675 Ash side of the duplex

resulting in the deaths of Steve and Argusta Dowdy. Emma Dowdy attempted to enter the

burning dwelling to save the lives of her grandchildren.



       The Dowdy sisters, as parents and next of kin, sued Defendant property owners for

the wrongful death of their two minor children. In their individual capacities the Dowdy

sisters sued for damages resulting from their own personal injuries allegedly received from

the fire. The grandmother of the deceased children joined in the suit in her individual

capacity to recover damages for personal injuries allegedly received in the fire.



       The case was tried to the Court without a jury. At trial, the fire inspector stated that

the cause of the fire was an open burning candle which the Dowdys had lit which caught

the curtains on fire and subsequently burned the home. The trial court ruled that Mary and

Cathy Dowdy were negligent by burning the candle and then going to bed without putting


                                              2
out the candle and that their negligence was a proximate cause of the death of the minors.



       The fire investigator also testified that during the course of his investigation he

searched for a fire detector but could find none. He testified he looked for evidence of a

smoke detector, including mounting brackets, screws and the like but found none. He also

found no evidence of a smoke detector on the other side of the duplex. Mary and Cathy

Dowdy testified that there was no smoke detector. However, the owner of the duplex,

Myles Wilson, testified he had smoke detectors installed in both of his duplexes in

September of 1987, prior to the Dowdys moving in. Mallory Montague identified the smoke

detector installation contract for the subject duplex that burned and further testified that he

personally installed a smoke detector in the subject duplex.



       The trial court found that there were no smoke detectors in the subject duplex and,

as such, Appellants were guilty of negligence per se. The trial court further found that the

failure to provide a smoke detector was a proximate cause of the death of the minor

children. The trial court ruled that Mary Dowdy and Cathy Dowdy were negligent which was

equal to or greater than 50% (Mary 35%, Cathy 45%), and they were denied any individual

recovery. However, Mary Dowdy and Cathy Dowdy, as non-party plaintiffs in their

representative capacity, were awarded 20% of the damages for the wrongful deaths of their

children, in the amounts of $14,060.00 and $13,654.00 respectively.



                             II. Presence of Smoke Detector



       The issue of the presence of a smoke detector on the premises was hotly contested

at trial. Appellees Mary and Cathy Dowdy both testified that there was no smoke detector

on the premises. Appellant Myles Wilson testified that he and his wife had smoke detectors

installed in each of their duplexes in August and September of 1987. Myles Wilson further

stated that the smoke detector at 1673 Ash had been tested when Mary Dowdy moved into

the duplex and that it was working properly. Myles Wilson further testified that Mallory

Montague installed the smoke detector on the premises.



                                              3
       Mallory Montague testified that he installed smoke detectors in all the duplexes

owned by Mr. Wilson. He identified the smoke detector installation contract which listed

1673 Ash as one of the premises on which a smoke detector was to be installed.



       Gerald Alsup, fire investigator for the Memphis Fire Department was assigned to

investigate the fire in this case for possible arson and because there were fatalities

involved. He testified that during the course of his investigation, he made a point of

searching for a smoke detector, but could find none. He looked for evidence of the

existence of a smoke detector that perhaps had been moved but could find no such

evidence. He testified that he further searched for mounting brackets, screws, components,

and the like, but could find no remnants anywhere. Gerald Alsup went on to testify that he

then proceeded to check the other side of the duplex at the 1673 address for the same and

found no smoke detector there either. Likewise, he found no evidence that one had ever

been installed in that residence.



       The trial court made a finding of fact that the premises had not been equipped with

a smoke detector. Rule 13(d) of the Tennessee Rules of Appellate Procedure states as

follows:

              Unless otherwise required by statute, review of findings of fact
              by the trial court in civil actions shall be de novo upon the
              record of the trial court, accompanied by a presumption of
              correctness of the finding, unless the preponderance of the
              evidence is otherwise.

Additionally, because of the dispute among the witnesses, the trial judge had to assess the

credibility of the parties. Such findings on review must be regarded as conclusive unless

other real evidence compels a contrary conclusion. McReynolds v. Cherokee Ins. Co, 815

S.W.2d 208, 210 (Tenn. Ct. App. 1991); Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 264

(Tenn. Ct. App. 1990).



       Upon assessing the credibility of the parties, the trial judge chose to accept the

testimony of the fire investigator. While there was other real evidence in the form of a

contract for the installation of a smoke detector at the premises, this court does not believe



                                              4
that such evidence compels a contrary conclusion. After hearing the testimony of the

installer and all the other witnesses, the trial judge was free to conclude that although the

contract called for the installation of the smoke detector, it was never actually installed.

Where the trial judge has seen and heard the witnesses, especially if issues of credibility

and weight to be given oral testimony are involved, considerable deference must be

accorded those circumstances on review. Humphrey v. David Witherspoon, 734 S.W.2d

315 (Tenn. 1991). This Court accordingly affords great deference to the judgment of the

trial court on this issue, and finds that the evidence does not compel a contrary conclusion.



       Having found that the trial court did not err in finding that there was no smoke

detector on the premises, Appellants’ argument that they were not guilty of negligence per

se is without merit.



                                    III. Proximate Cause



       The trial court found that Appellants were guilty of negligence per se in not installing

smoke detectors in the home which burned and that their negligence was a proximate

cause of the minors’ deaths. Appellants argue that the fire started by Appellees was an

intervening and superseding cause which relieves them of liability. The fire investigator,

Gerald Alsup, stated in his report and at trial that the cause of the fire was an open burning

candle which the Dowdys had lit which caught the curtains on fire and subsequently burned

the home. The trial court ruled that Appellees, Mary and Cathy Dowdy, were negligent by

burning the candle and then going to bed without putting out the candle and that their

negligence was a proximate cause of the fire. In fact, the trial judge ruled that Cathy Dowdy

was 45% negligent and Mary Dowdy was 35% negligent, barring their individual recovery

in this case.



       Proximate cause is that act or omission which immediately causes or fails to prevent

the plaintiff’s injury; an act or omission occurring or concurring with another which, if it had

not happened, injury would not have been inflicted. Solomon v. Hall, 767 S.W.2d 158


                                               5
(Tenn. Ct. App. 1988); Tennessee Trailways, Inc. v. Ervin, 438 S.W.2d 733 (Tenn. 1969).

The omission of the Appellants in failing to equip the home with a smoke detector clearly

fits into this definition of proximate cause. This omission resulted in a failure to prevent the

deaths of the Dowdy children.



       While the negligence of the Dowdys was also a proximate cause of the deaths, the

act or omission of the Wilsons concurred with the negligence of the Dowdys, to cause the

deaths of the children. Clearly, the fire would have occurred regardless of the negligence

of the Wilsons. However, absent the omission of the Wilsons, the Dowdys likely would

have been awakened by the fire detector, and able safely to exit the home with their

children. The negligence of the Wilsons was a proximate cause of the deaths of the Dowdy

children.



       This Court further believes that to hold the cause of the fire was a superseding act

would circumvent the very purpose of smoke detectors. Smoke detectors will very rarely

be the proximate cause of the fire itself. However, smoke detectors are created for the very

purpose of providing an early warning to occupants of a dwelling in the event of a fire.

Smoke detectors are required to be installed under Tennessee law not only to save the

lives of those persons caught in a purely accidental fire, but rather to save all lives

regardless of the origin of the fire.




                 IV. Recovery for Wrongful Death by Negligent Parties



       Appellants argue that the trial court erred in awarding a recovery for the wrongful

death of the children when the sole beneficiaries were more than fifty percent (50%)

negligent. The Appellees Mary and Cathy Dowdy sued as next of kin for the wrongful death

of their respective children. The trial court apportioned fault as follows:

                      Steve Dowdy, a minor                 0%
                      Argusta Dowdy, a minor               0%

                                               6
                      Mary Ann Dowdy                        35%
                      Cathy Dowdy                           45%
                      Myles and Arlene Wilson               20%

The trial court then stated that the claim of Emma Dowdy (grandmother of the deceased

children) was distinctly separate and stood apart from the other claims; and therefore her

claim should be considered separately. The court found that because the fire officials

instructed Emma Dowdy not to enter the burning residence, her negligence was equal to

or greater than fifty percent (50%) and she was thereby barred from recovery.



       The trial court then went on to consider the claims of Cathy and Mary Dowdy. The

court likewise considered the claims for personal injuries by Mary Dowdy and Cathy Dowdy

in their individual capacities to be separate and apart and therefore considered them

separately. The court then stated that their individual negligence was equal to or greater

than fifty percent (50%) when compared to the negligence of the defendant property

owners and barred them from recovery as parties plaintiff in their individual capacities.



       Although not raised as an issue on appeal, this Court finds it necessary to address

the correctness of the trial court’s characterization of the fault of the plaintiffs, in order to

properly address Appellants’ final claim. This Court fails to see how each individual

plaintiff’s negligence was equal to or greater than fifty percent (50%), when the trial court

apportioned forty-five percent (45%) negligence to Cathy Dowdy and thirty-five percent

(35%) negligence to Mary Dowdy. It appears that the trial court either incorrectly

considered the negligence of these two parties together or based its ruling on the fact that

the negligence of each individual plaintiff was greater than the negligence of the

Defendants.



       However, this is a case in which there were found to be multiple tortfeasors. In a

case with multiple tortfeasors, a plaintiff is entitled to recover as long as plaintiff’s fault is

less than the combined fault of all tortfeasors. McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.

1992). Of course, while the fault of all tortfeasors is compared to determine whether a

plaintiff is entitled to recovery, the plaintiff may only recover from those parties made



                                                7
defendants in the action. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 84 (Tenn.

1996) (“Failure of the plaintiff to assert its cause of action against such persons who are

alleged by the defendant pursuant to Section 20-1-119 to have caused or contributed to

the injury or damage, would not preclude the assessment of fault against such persons but

would preclude the award of damages against such persons.”) Therefore, while Mary

Dowdy and Cathy Dowdy would be entitled to recovery under this scheme, they could only

recover damages from Defendants (Wilsons), as they chose not to include each other as

defendants in this lawsuit. Plaintiffs’ recovery would be reduced by their own percentage

of negligence and the percentage of negligence of any party not made a defendant against

whom fault was properly attributed.



         An argument could be made that the language found in the trial court’s opinion

regarding the negligence of Mary Dowdy and Cathy Dowdy being equal to or greater than

fifty percent (50%), applies only to the individual claims of Mary Dowdy and Cathy Dowdy,

and the trial court intended the detailed apportionment of fault (spelled out above) to

govern the wrongful death claims. However, this Court sees no reason why the negligence

of the parties should be apportioned differently with regard to the individual and derivative

claims. In order to address the final issue before this court regarding the plaintiffs’ recovery

for the wrongful deaths of their children, we must first address the trial court’s finding of

negligence. To the extent that the trial court’s opinion found the negligence of the plaintiffs

to be equal to or greater than fifty percent (50%) with regard to the wrongful death claims,

the trial court was in error.1 The detailed apportionment of fault by the trial court shall apply.



         Having found that the specific percentages apportioned to the parties by the trial

court should control, the Appellants’ argument that the trial court erred in awarding a

recovery for the wrongful death of the children when the sole beneficiaries were more than

fifty percent (50%) negligent has no merit. Neither Mary Dowdy nor Cathy Dowdy was

found to be more than fifty percent (50%) negligent. Therefore, this Court does not need


         1
           The defend ants are the appe llants in the ca se befo re this cou rt. Mary Dowdy and Cath y Dow dy did
not appeal the decision of the trial court. Any error mad e by the trial court in finding the negligence of the
plaintiffs to be equal to or greater than 50%, and d enying them any re cove ry in the ir individ ual ca pac ities is
an issue not befo re this Co urt.

                                                         8
to address the issue of whether a sole beneficiary who is found to be at least fifty percent

(50%) negligent is barred from recovery.



       Cathy Dowdy was found to be forty-five percent (45%) negligent in the deaths of the

children. As her percentage of negligence is not equal to or greater than fifty percent

(50%), she is entitled to recovery. Cathy Dowdy’s recovery for the wrongful death of her

son is reduced by the percentage of negligence attributed to her and also by the

percentage of negligence attributed to Mary Dowdy, as Cathy Dowdy chose not to make

Mary Dowdy a defendant in this lawsuit. The Wilsons are liable only for the percentage of

the damages occasioned by their negligence (20%).



       Mary Dowdy was found to be thirty-five percent (35%) negligent in the deaths of the

children. Mary Dowdy is likewise entitled to recovery for the wrongful death of her son.

Using the same reasoning as above, Mary Dowdy’s recovery shall be reduced by the

percentage of negligence attributed to her and by the percentage of negligence attributed

to Cathy Dowdy, as Mary Dowdy did not bring suit against Cathy Dowdy. The Wilsons are

liable to Mary Dowdy for the percentage of damages occasioned by their negligence (20%).



       The trial court held that as to the cause of action for the wrongful death of the minor

children, Mary Dowdy and Cathy Dowdy, respectively, as “non-party” plaintiffs in their

representative capacities are entitled to recover twenty percent (20%) of the damages for

the wrongful death of their respective minor children. The trial court reached this decision,

irrespective of its statement that the negligence of the plaintiffs was equal to or greater

than fifty percent (50%), based upon the premise that wrongful death is a derivative action

and that a cause of action would exist in the deceased minor children in the instant case

against their mothers.



       This Court affirms the judgment of the trial court which awarded the plaintiffs twenty

percent (20%) of the damages for the wrongful deaths of their respective children.

However, this Court would point out that it is affirming the award of twenty percent (20%)



                                              9
based upon the fact that the trial court, in its specific apportionment of fault, attributed less

than fifty percent (50%) negligence to each plaintiff (Cathy Dowdy and Mary Dowdy). This

Court does not reach the issue of whether a recovery for wrongful death may be awarded

when the negligence of the sole beneficiary is found to be equal to or greater than fifty

percent (50%).




                                        V. Conclusion



       The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to

the Appellants, for which execution may issue if necessary.




                                                           HIGHERS, J.

CONCUR:



CRAWFORD, P.J., W.S.



FARMER, J.




                                               10
