     IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                              AT JACKSON
         _______________________________________________________

                                    )
ERMA HARDESTY and                   )     Shelby Law
JIM HARDESTY,                       )     33600 T.D.
                                    )
   Plaintiffs/Appellants.           )
                                    )
VS.                                 )     C. A. NO. 02A01-9510-CV-00235
                                    )
SERVICE MERCHANDISE
COMPANY, INC.,
                                    )
                                    )                      FILED
                                    )           Feb. 5, 1997
   Defendant/Appellee.              )
                                    )        Cecil Crowson, Jr.
________________________________________________________________________
                                               Appellate Court Clerk



                       SEPARATE CONCURRING OPINION


           The majority holds that the plaintiff cannot establish constructive notice. I am

constrained to agree. However, I invite our Supreme Court to revisit this area of law.



           The plaintiff entered Service Merchandise. She tripped over an object

protruding into the aisle. She sustained a fractured hip, was hospitalized, and underwent

surgery.



           For plaintiff to prevail, she must demonstrate that either: (1) the dangerous

condition was created by the store owner or its agents; or (2) the store owner had actual

or constructive notice of the dangerous condition.



           It is illogical to surmise that an employee will confess: "Yes, I created the

dangerous condition that injured the plaintiff." The employee may not be aware that he or

she created the dangerous condition. Moreover, the fear of becoming unemployed is a

logical impediment to plaintiff's development of proof.



           The rules place an insurmountable burden on the innocent injured plaintiff. Had

Service Merchandise created this dangerous condition, how would this Court have

plaintiff carry her burden? The store or its agents are in sole possession of the proof
plaintiff requires to move forward. Curiously, however, we place the burden on the party

without control of the proof to bear the burden of moving forward.



          I find it even more disconcerting that the rule we have developed encourages or

promotes ignorance. Store owners may circumvent liability by simply remaining

unaware. They are not held accountable for injuries caused by dangerous conditions

unless the conditions existed so long that they should have known.



          From a purely economic perspective, store owners are in a much better

possession to bear the loss. Owners invite consumers upon their premises. They derive

economic benefit from patron visits. They, therefore, should be encouraged to maintain a

safe environment for their customers. I am not suggesting that store owners be insurers of

their property. I am suggesting, however, that the law should encourage a store owner to

inspect and maintain safe premises.



          I think the law would be better served by charging store owners with

constructive notice. Owners are in possession of the proof and in a much better position

to rebut. Quite easily, the employer could offer proof that the aisles are checked hourly.

An employee could then simply testify that he or she inspected or walked down the aisle

just prior to plaintiff's injury and did not notice an object protruding into the aisle.



          If the employer cannot rebut constructive notice, he or she then can argue

apportionment of liability. If the jury finds the plaintiff over 50% or more at fault, the

plaintiff bears the loss.



          A common sense deduction is that employees creating dangerous conditions

which ultimately cause injuries are not likely to come forward. A plaintiff's sole

remaining viable option, in reality under the current law, is locating a patron who viewed

the dangerous condition some time prior to the accident. Does the Court expect the



                                               2
injured victim to publish in a newspaper "Anyone seeing a bed rail protruding into an

aisle at Service Merchandise on . . ."?



         We need to study this impractical burden. We continue striking injured patrons'

claims without providing any guidance as to how the innocent injured victim may

overcome the harsh burden of our rules. It is no better to have a rule than to have a rule

which promotes ignorance and serves no end.




                                                     ______________________________
                                                     PAUL G. SUMMERS, Judge




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