JOEY BROWN, as next friend               )
and natural guardian of                  )
MITCHELL W. BROW N,                      )
                                         )
       Plaintiff/Appellee,               )
                                         )   Appeal No.
                                         )   01-A-01-9705-CV-00217
VS.                                      )
                                         )   Lawrence Circuit
                                         )   No. CC-55-96
WAL-MART DISCOUNT CITIES,                )

       Defendant/Appellant.
                                         )
                                         )                      FILED
                      COURT OF APPEALS OF TENNESSEE             February 6, 1998
                        MIDDLE SECTION AT NASHVILLE
                                                             Cecil W. Crowson
                                                            Appellate Court Clerk
APPEALED FROM THE CIRCUIT COURT OF LAWRENCE COUNTY
AT LAWRENCEBURG, TENNESSEE

THE HONORABLE JIM T. HAMILTON, JUDGE




W. CHARLES DOERFLINGER
P. O. Box 692
8 Public Square
Lawrenceburg, TN 38464
       Attorney for Plaintiff/Appellee

TRACY SHAW
CAROLYN E. UNDERWOOD
300 James Robertson Parkway
Court Square Building
Nashville, TN 37201-1107
      Attorney for Defendant/Appellant




                             AFFIRMED AND REMANDED




                                             BEN H. CANTRELL, JUDGE


CONCUR:
KOCH, J.
BUSSART, J.




                                 OPINION
              In this slip and fall case in which a child slipped on some ice cubes in

the vestibule of a large department store, the jury returned a verdict for the plaintiff but

attributed 70 % of the fault to the unknown person who placed or dropped the ice on

the floor. Ruling on a post-trial motion, the trial judge held that the store’s fault was

100% because the plaintiff could not sue the unknown tortfeasor. On appeal, the

defendant asserts that there is no evidence to support the verdict and that the trial

judge erred in modifying the jury’s verdict with respect to the degree of fault. We find

that there is evidence from which the jury could have found that the store was

negligent and that the store cannot attribute part of the fault to the unknown tortfeasor.

We, therefore, affirm the lower court’s judgment.



                       I. Factual and Procedural Background



              On January 3, 1995, three-year-old Mitchell Brown slipped on ice and

water that had spilled out of a cup in the vestibule of the Wal-Mart store in

Lawrenceburg, Tennessee. There was no evidence as to how the ice came to be on

the floor or who left the drink in the vestibule. It was clear that the ice had spilled out

of a cup from the Wal-Mart drink dispenser in the store's snack bar where self-service

drinks were available. The ice was still hard at the time of the accident.



               Prior to trial, Defendant's attorney announced his intent to argue that the

jury should assign fault to the unknown person who left the cup in the vestibule.

Neither Plaintiff’s counsel nor the trial court objected, and at the close of the trial, the

judge's instructions to the jury encompassed the comparative fault of an unknown

tortfeasor. The court told the jury that they must "determine the fault, if any, of each

of the parties . . . what I'm talking about when I say 'parties' in this case is the

unknown - - what the law calls an unknown tortfeasor . . . . If you find that more than

one of the parties are at fault, you will then compare the fault of the parties. To do

this, you will need to know the definition of fault. A party is at fault if you find by a

preponderance of the evidence that the party was negligent; and that the negligence



                                           -2-
was a proximate cause of the injury or damage for which its claim is made."1 The

court then gave the jury a verdict form with the "unknown tortfeasor" listed as a

potential person to whom it might apportion fault and explained to them that this was

"the unknown person who deposited the cup."



                  The jury returned a verdict finding the total amount of damages to be

$2,625.00 and assigning 70% fault to an unknown tortfeasor and 30% to Defendant.

As a result, the court ordered that Plaintiff recover $787.50 against Defendant.

Plaintiff then filed a motion for new trial in which he argued that the court erred by

allowing the jury to consider the guilt of a nonparty tortfeasor.



                  In its final order, the court stated that it had "erred in allowing Defendant

to include as unknown tortfeasor, (the person or persons responsible for leaving the

cup of ice on the floor at Wal-Mart), for the jury to assign a percentage of fault." In so

ruling, the court stated that the McIntyre v. Balentine doctrine allows the jury to assign

fault to an unnamed tortfeasor who is known to the defendant. Here, "[t]here is no

way the Plaintiff in the instant case could sue and obtain judgment against whom ever

left the cup of ice on the floor at Wal-Mart, because no one knows who to sue." Since

the court was satisfied with the monetary award to Plaintiff, it overruled the motion for

new trial and stated that "the judgment of $2625 [would] remain in tact" thereby

effecting a reapportionment of 100% of the fault to Wal-Mart.



                  To reiterate, this case presents several issues, one of which involves the

jury's consideration of the fault of a potential person who spilled the ice on the floor

in the Wal-Mart vestibule. If we determine that the jury should not have been

instructed to consider the fault of this "unknown tortfeasor" as termed by the trial



         1
          While the propriety of this jury instruction is not at issue, we note that our supreme court has
rejected the proposition that proof of proximate cause is necessary to "shift the blame" to a known
non party. In George v. Alexander, 931 S.W.2d 517, 521 (Tenn. 1996), the court stated that
"'blame-shifting' in a negligence context actually has to do with the element of causation in fact. Once
the defendant introdu ces evide nce that a noth er pe rson 's co ndu ct fits this e lem ent, it h as ef fectiv ely
shifted the blame to that person." If this were not so, a legitimate issue in this case would be the
existence of proof of the duty, breach of duty and proximate cause with regard to the unknown
tortfeaso r. See Snyder v. LTG Lufttechnische GmbH, 955 S.W .2d 252 (Tenn. 1997) infra, note 2.

                                                      -3-
court, we must then decide whether the trial court was correct in reallocating 100% of

the fault to Defendant Wal-Mart upon its consideration of Plaintiff's motion for a new

trial. Finally, Defendant has argued that, regardless of the fault of an unknown party,

the evidence does not support a finding of Wal-Mart's negligence as there is no proof

that Wal-Mart had constructive notice of the dangerous condition giving rise to

Plaintiff's injury.



                             II. Evidence of Negligence



                We turn first to Defendant’s contention that the trial court erred in

denying its motion for a directed verdict because there was no proof at trial from which

a jury could reasonably infer that Wal-Mart's conduct was negligent. A directed verdict

is appropriate when the evidence supports only one conclusion. Williams v. Brown,

860 S.W.2d 854, 857 (Tenn. 1993). However, "[a] case should go to the jury, even

if the facts are undisputed, if reasonable persons could draw conflicting inferences

from the facts." Underwood v. HCA Health Servs. of Tenn., Inc., 892 S.W.2d 423,

426 (Tenn. Ct. App. 1994) (citing Sauls v. Evans, 635 S.W.2d 377, 379 (Tenn. 1982)).

The jury is permitted to reasonably infer facts from circumstantial evidence, and these

inferred facts may be the basis of further inferences of the ultimate fact at issue.

Benson v. H. G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn. Ct. App. 1985)

(citations omitted). "An inference is reasonable and legitimate only when the evidence

makes the existence of the fact to be inferred more probable than the nonexistence

of the fact." Underwood, 892 S.W.2d at 426. On the other hand, the jury is not

permitted to engage in conjecture, speculation, or guesswork as to which of two

equally probable inferences is applicable. Stringer v. Cooper, 486 S.W.2d 751, 756

(Tenn. Ct. App. 1972).



                "Where there has been a verdict for the plaintiff approved by the Trial

Judge, in considering a defendant’s motion for a directed verdict the Court of Appeals

must look at all the evidence, construe it most favorably to the plaintiff, take the



                                          -4-
plaintiff’s evidence which supports his theory as true, discard all countervailing

evidence and indulge all reasonable inferences to uphold the verdict." Martin v.

Washmaster Auto Ctr., U.S.A., 946 S.W.2d 314, 316 (Tenn. Ct. App. 1996) (quoting

Tennessee Liquefied Gas Corp. v. Ross, 450 S.W.2d 587, 588 (Tenn. Ct. App.

1968)). Pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure, this

court’s responsibility is to determine whether there is any material evidence to support

the verdict. We thus review the proof in its most favorable light to Plaintiff to

determine whether there exists any material evidence to support the jury's verdict

against Wal Mart.



                The undisputed proof shows that three-year-old Mitchell Brown

accompanied his mother and sister into Wal-Mart's vestibule where he slipped on ice

spilled from a cup from Wal-Mart's self-service drink dispenser. Mark Morgan, who

was the assistant manager at the Wal-Mart at the time of the incident, testified that

though Wal-Mart's policy was to limit drinks to the snack area, he was aware that

customers carried their drinks throughout the store.          He stated that it was

economically impossible to assign an employee to each customer to ensure that

drinks not be carried throughout the store. When questioned about this policy, Kevin

Brewer, a Wal-Mart employee who was on duty at the time of the accident, testified

that he had never stopped anyone from coming out of the snack area and that if he

did "go up to somebody to to [sic] tell them to go back and sit down, [he] could get

fired." Mr. Morgan testified that there was no policy against customers purchasing

drinks and exiting the store with these drinks either through the vestibule or another

of the exits.



                Mr. Morgan stated that Wal-Mart employees were trained to be on the

lookout for dangerous conditions. The management awarded the employees with

money raffles when they went for periods of time without accidents. In addition, there

was in place a safety sweep program in which each associate was responsible to

check his area for paper, popcorn, or other hazards approximately every thirty



                                         -5-
minutes. Mr. Morgan testified that Kevin Brewer was the associate responsible for the

vestibule at the time of the incident. According to Mr. Morgan, Mr. Brewer was to

check for dangerous conditions every time he brought shopping carts in from the

outside parking lot.



              Mr. Brewer also testified at trial that the vestibule was one of his main

responsibilities. His duties in the vestibule included making sure that nothing was

spilled, that all the trash was picked up and that there were no hazards. He said that,

in the afternoon, he came in and out of the vestibule every five minutes or less with

shopping carts and was continually on the lookout for spills. Mr. Brewer testified that

he had been through the vestibule "probably within the last five minutes" preceding

Mitchell Brown's fall. He did not see the ice on the floor until after the child had fallen,

at which time he cleaned up the ice. It was Mr. Brewer's opinion that the ice cubes

had not been there very long as "they were still in ice form . . . still real hardened."

When opposing counsel pointed out several times that Mr. Brewer had not testified

this way the first time this case was tried, he responded that he did not remember how

he previously testified.



              Lisa Brown, Mitchell's mother, testified that she entered the Wal-Mart

and immediately proceeded to the pay phone in the vestibule to call her husband. As

she walked to the phone, she saw a Wal-Mart employee open the door from the store

to let an elderly customer into the vestibule. While at the phone, she noticed that her

children were standing in the middle of the ice at which time she beckoned them

toward her warning them to be careful. It was at this time that Mitchell fell.



              While business proprietors, such as Wal Mart, are not insurers of their

patrons’ safety, they are required to use due care under all circumstances. Smith v.

Inman Realty Co., 846 S.W.2d 819, 822 (Tenn. Ct. App. 1992). In order for an owner

or operator of premises to be held liable for negligence in allowing a dangerous or

defective condition to exist on its premises, it must be shown that the condition (1)



                                           -6-
was caused or created by the owner, operator, or his agent, or (2) if the condition was

created by someone other than the owner, operator, or his agent, there must be

actual or constructive notice on the part of the owner or operator that the condition

existed prior to the accident. Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47

(Tenn. Ct. App. 1995); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. Ct. App.

1980). Constructive knowledge can be shown by proving the dangerous or defective

condition existed for such a length of time that the defendant, in the exercise of

reasonable care, should have become aware of such condition. Simmons v. Sears,

Roebuck and Co., 713 S.W.2d 640, 641 (Tenn. 1986).



              Because the record below is devoid of proof that Wal-Mart either created

or had actual notice of the dangerous condition giving rise to Mitchell Brown's injury,

negligence must rest on a finding that Wal-Mart had constructive notice of the fact that

the ice was on the floor in the vestibule. While this is certainly a close case, we find

that there is material evidence to support the verdict. The jury could have reasonably

inferred from certain circumstantial evidence that Wal-Mart employees should have

known of the dangerous condition. Ms. Brown testified that she saw a Wal-Mart

employee open the door between the store and vestibule just prior to Mitchell's fall.

Though Mr. Brewer stated that he had passed through the vestibule within the past

five minutes, we think the jury could have inferred that the dangerous condition was

apparent but had been overlooked by the Wal-Mart employee.



                              III. Phantom Tortfeasor



              McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), was the landmark

decision in which our supreme court adopted a modified form of comparative fault.

The grand principle adopted in McIntyre was that a "particular defendant will

henceforth be liable only for the percentage of plaintiff’s damages occasioned by that

defendant’s negligence . . . ." Id. at 58. With regard to nonparties, the court made

the following statement:



                                         -7-
              [F]airness and efficiency require that defendants called upon
              to answer allegations in negligence be permitted to allege, as
              an affirmative defense, that a nonparty caused or contributed
              to the injury or damage for which recovery is sought. In
              cases where such a defense is raised, the trial court shall
              instruct the jury to assign this nonparty the percentage of the
              total negligence for which he is responsible. However, in
              order for a plaintiff to recover a judgment against such
              additional person, the plaintiff must have made a timely
              amendment to his complaint and caused process to be
              served on such additional person. Thereafter, the additional
              party will be required to answer the amended complaint. The
              procedures shall be in accordance with the Tennessee Rules
              of Civil Procedure.

Id.



              From the trial court 's final order, it can be inferred that the court made

a post-trial determination that McIntyre allows the jury to assign fault to an unnamed

tortfeasor only when that tortfeasor is known to the defendant and can, itself, be sued

and held responsible for its portion of the judgment. The trial court thus found that the

allocation of 70% fault to the unknown tortfeasor who may have spilled the ice was in

error. We agree for reasons hereinafter stated.




              In the wake of Tennessee's adoption of comparative negligence, our

courts have been left with the task of restructuring our negligence law in a manner

consistent with this new scheme of comparative fault. See, e.g., Owens v. Truckstops

of Am., 915 S.W.2d 420 (Tenn. 1996) and Bervoets v. Harde Ralls Pontiac-Olds, Inc.,

891 S.W.2d 905 (Tenn. 1994) (cases in which the supreme court addressed issues

of contribution, joint and several liability and indemnification in light of comparative

fault). An issue left unresolved by the courts is the apportionment of fault to a

"phantom tortfeasor" -- "[a] person or entity whose negligence contributed to the

plaintiff's injury but who was not joined as a defendant . . . because his or her identity

is unknown." 2 Arthur Best, Comparative Negligence § 13.20 (1997). While the post-

McIntyre decisions have not specifically addressed the issue of a phantom tortfeasor,

our supreme court has dealt with the similar issue of a nonparty who could not be

joined because it was immune from suit. Ridings v. Ralph M. Parsons Co., 914

                                          -8-
S.W.2d 79, 80 (Tenn. 1996). In so doing, we believe that the court retreated from its

grand principle stated in McIntyre and espoused the policy of allowing the plaintiff to

recover all of his or her damages from defendants not totally at fault when the plaintiff

could not sue the other tortfeasor.



              In Ridings, the court addressed the issue of whether the defendants in

a suit based on negligence and strict liability could assert as an affirmative defense

that the plaintiff's employer caused or contributed to the plaintiff's injuries and

damages, notwithstanding the fact that the employer was immune from liability

because the injuries were covered by the workers' compensation law. The defendants

argued "that excluding the plaintiff's employer from those persons to whom fault may

be attributed violates the McIntyre principle that defendants will be 'liable only for the

percentage of a plaintiff's damages occasioned by that defendant's negligence.'"

Ridings, 914 S.W.2d at 80 (quoting McIntyre, 833 S.W.2d at 58).               It was the

defendants' position "that fault can be attributed to the employer, and the liability of

the defendants can be decreased accordingly, without the imposition of liability upon

the employer." Ridings, 914 S.W.2d at 81.



              The supreme court disagreed with the defendants finding that the

"rationale of McIntyre postulates that fault may be attributed only to those persons

against whom the plaintiff has a cause of action in tort." Id. The court reasoned that

when the McIntyre court stated that "fairness and efficiency require that defendants

called upon to answer allegations in negligence be permitted to allege, as an

affirmative defense, that a nonparty caused or contributed to the injury or damage for

which recovery is sought," it meant only those nonparties "against whom the plaintiff

has a cause of action." Id. at 81-82 (citing McIntyre, 833 S.W.2d at 58). The court

concluded that "[l]imiting the parties to whom fault may be attributed to those subject




                                          -9-
to liability, accomplishes the policy objectives of fairness and efficiency." Ridings, 914

S.W.2d 83.2



                 In so holding, the Ridings court did not preempt the possibility that a

defendant's fault might be reduced by the fault attributable to a nonparty so long as

that nonparty was subject to liability. Noting that "the plaintiff will bear the loss for any

liability that it fails or is unable to assert and any judgment that cannot be enforced,"

the court cited a medical malpractice case in which the jury apportioned 10% of the

liability to the plaintiff, 45% to the defendant and 45% to a non-resident physician who

was not a party to the suit.              Id. at 83 (citing Volz v. Ledes, 895 S.W.2d 677

(Tenn.1995)). The supreme court in Volz affirmed the judgment against the defendant

for 45% of the total damages. Regarding Volz, the Ridings court commented that

"[e]ven though the plaintiff had a cause of action against the non-resident tortfeasor,

that cause of action was not asserted and the proportion of the loss attributed to that

defendant was borne by the plaintiff." Ridings, 914 S.W.2d at 84 n.9 (citing Volz, 895

S.W.2d at 680).



                 In Turner v. Jordan, ___ S.W.2d ___ (Tenn. 1997), the court announced

another principle limiting the ability of a defendant to shift some of the responsibility

for a plaintiff’s injuries to another defendant whose actions were a major cause in fact

of the harm. In Turner, the harm was inflicted by the intentional acts of a mental

patient hospitalized under the care of a psychiatrist. The plaintiff, a nurse on duty in

the hospital, sued the psychiatrist for failing to impose restraints on the patient that

would have prevented the attack. The doctor pled comparative fault under Rule 8.03

of the Tennessee Rules of Civil Procedure, and the trial judge instructed the jury to


        2
           The court may have limited the reach of Ridings in the subsequent case of Snyder v. LTG
Lufttechnische GmbH , 955 S.W.2d 252 (Tenn. 1997). Presented with a similar situation involving the
introduction of eviden ce of an imm une em ployer's neg ligence, the court "dec line[d] the defendants'
invitation to reverse Ridings." Id. at 256. However it held "that products liability defendants in a suit for
personal injuries based on allegations of negligence and strict liability in tort may introduce relevant
evidence at trial that the plaintiff's employer's alteration, change, improper maintenance, or abnormal
use of the defendant's product was the cause in fact of the plaintiff's injuries." Id. at 256- 57 (e mp has is
added). While "the defendants may not take the legal position that the employer's actions were the legal
cause of the p laintiff's injurie s," it could introduce evidence showing said actions to be the cause in fact
as the jury "m ay consid er all evidenc e relevan t to the event leading up to the incident that injured the
plaintiff." Id. at 257.

                                                   - 10 -
apportion the fault between the doctor and the patient. On appeal, the supreme court

held that "the conduct of a negligent defendant should not be compared with the

intentional conduct of another in determining comparative fault where the intentional

conduct is the forseeable risk created by the negligent tortfeasor." Id. slip op. at 17.



              We think this case represents another principle limiting the ability of a

defendant to shift responsibility for a plaintiff’s injuries. The important thing is the ice

spilled out and created a dangerous condition that, according to the jury, the premises

owner should have discovered and eliminated. Under those conditions the owner

should not be able to attribute any of the fault to the so called "phantom tortfeasor"

unless the owner can produce clear and convincing evidence of the phantom’s

existence.



              Comparative fault is an affirmative defense, see Rule 8.03, Tenn. R. Civ.

P.; therefore a defendant wishing to escape part or all of the responsibility for the

plaintiff’s injuries must plead "the identity or description of any other alleged

tortfeasor." Id. If then, the plaintiff wishes to name the other tortfeasor(s), section

20-1-119 of the Tennessee code provides the framework for extending the action to

the others identified by the original defendant. The same code section provides a

ninety day window to name the additional defendants if the statute of limitations as to

them has run or is about to run.



               Where the original defendant cannot identify or describe the other

alleged tortfeasors, however, the original plaintiff will not be able to join them and

require them to answer for their share of the plaintiff’s injuries. In that case, the

plaintiff can admit or deny the existence of the "phantom tortfeasor(s)," if required to

do so by the court under Rule 7.01 of the Rules of Civil Procedure; but, in any event,

the burden of proof will remain on the original defendant to establish that part of the

responsibility for the plaintiff’s injuries should be shifted to the unknown tortfeasor(s).

Since the phantom tortfeasor defense can be easily abused, we think the original

defendant should be required to prove the existence of a third party whose fault


                                           - 11 -
contributed to the plaintiff’s injuries by clear and convincing evidence. It follows that,

prior to trial, plaintiffs should be permitted to test the strength of the defendant’s

evidence of the existence of a phantom tortfeasor using either a motion for partial

summary judgment or motion in limine. If the defendant cannot produce clear and

convincing proof of the existence of the phantom tortfeasor, the trial court should not

permit the evidence or comment before the jury.



              Since Wal-Mart did not identify the other tortfeasor and did not prove the

existence of another tortfeasor by clear and convincing evidence, we think the trial

judge correctly attributed all the fault to the original defendant.



              Cases involving unknown tortfeasors have arisen most often in the

context of uninsured motor vehicle coverage. See, e.g., Bruno v. Blankenship, 876

S.W.2d 294, 296 (Tenn. Ct. App. 1992). Tennessee law provides that an insured can

recover under his or her uninsured motorist policy for damages caused by an

unknown driver if "[a]ctual physical contact shall have occurred between the motor

vehicle owned or operated by such unknown person and the person or property of the

insured; or . . . [t]he existence of such unknown motorist is established by clear and

convincing evidence, other than any evidence provided by occupants in the insured

vehicle." Tenn. Code Ann. § 56-7-1201(e)(1)(A) & (B)(1997 Supp.). Though this

statute acknowledges the fault of an unknown party, it does not involve the

apportionment of fault among joint tortfeasors. Thus, we clarify that our opinion has

no bearing on the laws which govern insurance coverage for damages caused by

unknown motorists.



                IV. Trial Court's Restructuring of the Jury Award



              Now that we have determined that the trial court correctly concluded that

the jury should not have considered the potential fault of an unknown tortfeasor, we

must decide whether the court appropriately remedied this error. As stated, Plaintiff,



                                          - 12 -
citing the jury's consideration of an unknown tortfeasor, filed a motion for a new trial

which was denied by the court. However, in overruling said motion, the court asserted

its satisfaction with the jury's monetary award and ordered that this award remain in

tact. The court thereby effectively ordered that 100% of the jury's monetary award be

paid by Defendant Wal-Mart.



              Defendant argues that the court had no authority for its action for the

following reasons. First, neither party requested the relief granted by the court.

Defendant contends that while the Rules of Civil Procedure allow the court, on its own

initiative, to alter or amend a judgment, the court did not do so within the prescribed

time period of 30 days. Tenn. R. Civ. P. 59.05. Next, Defendant contends that there

never was a judgment in the amount of $2,625.00. Finally, Defendant argues that the

trial court is not permitted to reallocate percentages of fault as found by the jury.



              Initially, we reject Defendant's first argument. Tennessee Rule of Civil

Procedure 59.05 empowers a court to "on its own initiative . . . alter or amend the

judgment." As for the timeliness of this motion, Plaintiff did file a motion for new trial

within thirty days of the entry of the judgment as prescribed by Rule 59.02 of the Rules

of Civil Procedure. Almost seven months after the motion for new trial was filed, the

court issued its final order directing that Defendant pay 100% of the amount of

damages determined by the jury. As stated, the rules provide that a court may alter

or amend a judgment on its own initiative within thirty days after entry of that

judgment. Tenn. R. Civ. P. 59.05. The question becomes whether, in light of a timely-

filed motion for new trial, the thirty-day period for the court to alter or amend the

judgment was tolled. Based upon the guidance we receive from this court's opinion

in Grissim v. Grissim, 637 S.W.2d 873 (Tenn. Ct. App. 1982), we hold that it was.



              In Grissim, each party filed a timely motion to alter or amend the trial

court's order. Almost four months after the parties' motions were filed, the court




                                          - 13 -
overruled said motions and, at the same time, granted a new trial on its own initiative.

On appeal, the appellant made the following argument:

              [T]he power of a Trial Judge to grant a new trial on his
              own motion expires thirty (30) days after entry of judgment
              and that such power is not extended by post trial motions
              except to the extent of the relief requested in such
              motions. That is, if no new trial is requested in a post trial
              motion, then no new trial may be granted more than thirty
              (30) days after judgment.

Id. at 874. However, the court of appeals disagreed citing the "long established public

policy of this State favoring the opportunity to correct judicial actions by appeal or

otherwise." Id. at 875. The court reasoned as follows:

              [I]f part of a judgment is challenged by a post trial motion
              and the power of the trial court is extended to change
              such challenged part, then the trial court has not finally
              adjudicated all of the claims, rights and liabilities; and, the
              judgment is subject to revision (including setting aside)
              before entry of final judgment adjudicating all claims,
              rights and liabilities of the parties.

Id.



              In an unpublished opinion of this court, the rule of Grissim was extended

to a situation which is procedurally like the case at bar. General Elec. Credit Corp. v.

Allen & Bean, Inc., No. 87-165-II, 1987 WL 19311 (Tenn. Ct. App. 1987). In General

Electric, the court denied plaintiff's motion for a new trial, and at the same time,

altered the judgment against the defendant. Id. at *2. Though this sua sponte

alteration occurred outside of the thirty days following the judgment, the court held that

"[w]hile the procedural situation in the present case is the reverse of that in Grissim,

under the reasoning of Grissim, it would appear that a motion for new trial would

preserve the power of the Trial Court to alter or amend." Id. at *3. We therefore hold

that in the case at bar, Plaintiff's motion for a new trial effectively preserved the power

of the court to alter the judgment as it did.



              Defendant next argues that the trial court is not permitted to reallocate

percentages of fault as found by the jury. We agree. See Turner v. Jordan, ___

S.W.2d ___ (Tenn. 1997). But we think Turner is inapposite because this is not a


                                          - 14 -
situation in which the court was usurping the jury's role as fact finder by reallocating

percentages of fault. We recognize that the allocation of fault is a factual question for

the jury. However, in this case the court was not determining the factual question of

the percentages of fault. Rather, the court was assigning 100% of the damages

assessed by the jury to Defendant in light of the legal conclusion that Defendant's fault

could not be shared with an unknown tortfeasor.



              In the case at bar, there is a significant distinction between the legal

issues and the fact issues, the latter of which involve the existence of Wal-Mart's

negligence and the amount of Plaintiff's damages. The jury made these factual

determinations, and then the court made its post-trial decision that blame should not

have been shifted to an unknown tortfeasor, based on the legal conclusion that the

parties to whom fault may be attributed should be limited to those subject to liability.

It was pursuant to this legal finding that the court amended the judgment such that

Defendant Wal-Mart was responsible for 100% of the damages determined by the

jury. While we do not endorse completely the trial judge’s legal conclusion, we think

he reached the right result in this case.



              Finally, we turn to Defendant's assertion that there never was a

judgment in the amount of $2,625.00. There is no basis for this argument, for in the

final judgment the court stated that "[t]he jury further found that the total amount of

damages sustained by plaintiff was $2,625.00." It is true that the court ordered

Defendant to pay only $787.50 because it assigned Defendant only 30% of the fault.

However this does not change the jury's finding with regard to Plaintiff’s damages.



                                    V. Conclusion



              In light of the proof presented at trial and the inferences that can be

drawn therefrom, we conclude that there exists material evidence to support the jury's

verdict against Wal-Mart. In addition, we affirm the trial court's finding that the law



                                         - 15 -
precludes that fault be attributed to an unknown party in this case. Finally, in light of

a jury finding which conflicted with this legal conclusion, the lower court did not err in

altering the judgment such that Defendant be responsible for 100% of Plaintiff's

damages. Tax the costs on appeal to Wal-Mart Discount Cities.




                                           ________________________________
                                           BEN H. CANTRELL, JUDGE

CONCUR:



______________________________
WILLIAM C. KOCH, JR., JUDGE



_______________________________
WALTER W. BUSSART, JUDGE
