                      IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT JACKSON




ALI AGHA BATEBI,                      )
                                      )
       Plaintiff/Appellee             )      Shelby Law No. 41863 T.D.
                                      )
vs.                                   )
                                      )
PATRICK WAYNE CLARK and
THE KRYSTAL COMPANY,
                                      )
                                      )
                                      )
                                             Appeal No.
                                             02A01-9410-CV-00228         FILED
       Defendants/Appellants.         )
                                                                          August 9, 1996

                                                                         Cecil Crowson, Jr.
                                                                         Appellate C ourt Clerk



               APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE



                      THE HONORABLE JAMES M. THARPE, JUDGE



For the Plaintiff/Appellee:           For the Defendants/Appellants:

Joseph Michael Cook                   B. J. Wade
Memphis, Tennessee                    Lori Keen
                                      Memphis, Tennessee




                                     AFFIRMED




                                      HOLLY KIRBY LILLARD, JUDGE



CONCUR:


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


ALAN E. HIGHERS, J.
                                             OPINION

       In this case, the defendant, The Krystal Company (Krystal), appeals a jury verdict holding

it liable for personal injuries received by the plaintiff, Ali Agha Batebi (Batebi), from a criminal

assault by a third party while on Krystal's property. We affirm.

       Krystal operates a restaurant in Memphis, Tennessee. At approximately midnight on

August 3, 1991, Batebi went to the restaurant to purchase food. The Krystal restaurant was

shorthanded that night with only two employees, one cooking the food and the other taking

orders from customers. When Batebi came in, there were several customers in line ahead of him.

       Defendant Patrick Wayne Clark (Clark) was present in the restaurant when Batebi

entered. Clark had been drinking beer and was, by his own admission, intoxicated and loud.

Clark had ordered no food and was pacing around the restaurant with his shirt open, harassing an

African-American female customer ahead of Batebi in line. After the female customer left, Clark

turned his attention to Batebi, laughed at him, and repeatedly asked him to say the word

"brewer." Batebi first ignored Clark. When Clark persisted, Batebi asked him if he was "trying

to start a fight or something." Batebi tried to get the attention of the Krystal employees but was

unsuccessful.    Clark testified that he asked Batebi to step outside the restaurant and that Batebi

refused. Clark then left the restaurant. When Clark left, Batebi believed that the confrontation

had ended. However, Clark returned to the restaurant moments later with a baseball bat. Batebi

was unaware that Clark had come back inside. While Batebi was still facing the front counter of

the restaurant, Clark struck him in the head with the baseball bat. The entire exchange between

Clark and Batebi lasted approximately fifteen to twenty minutes.

       Batebi sustained serious injuries from the blow from the baseball bat. He incurred

$14,641.25 in medical expenses and $1,051.20 in lost wages. Batebi filed suit against Krystal

and Clark, alleging negligence, gross negligence, and willful conduct on the part of both

defendants. The suit sought both compensatory and punitive damages. At trial, the plaintiff

introduced proof that Krystal regularly permitted intoxicated persons to frequent the restaurant,

particularly during the “third shift” from 11:00 p.m. to 7:00 a.m. The plaintiff submitted

testimony that employees working at Krystal during that shift were fearful and had requested

Krystal’s management to provide additional security. A Memphis police officer testified

regarding prior calls to the police from the restaurant.

       The jury found that Krystal had been negligent and that Krystal's negligence was a
proximate cause of Batebi's injuries. It assessed 50% of the total fault against Clark and 50%

against Krystal. It found Batebi’s total damages to be $166,000 and also awarded punitive

damages against Clark in the amount of $15,700. After post-trial motions, Krystal filed this

appeal.

          On appeal, Krystal contends that Batebi failed to establish that Krystal owed a duty to

protect him under these circumstances. Krystal also argues that Clark’s assault against Batebi

was an independent, superseding, and intentional act for which Krystal should not be held liable.

Further Krystal asserts that the trial court erred in permitting a police officer to testify regarding

prior calls made to the Memphis Police Department from the Krystal restaurant in question.

Finally, Krystal maintains that the trial court failed to exercise its duty as thirteenth juror.

          Under Tenn. R. App. P. 13(d), "[f]indings of fact by a jury in civil actions shall be set

aside only if there is no material evidence to support the verdict." The standard of review for a

question of law, however, is de novo with no presumption of correctness. Carvell v. Bottoms,

900 S.W.2d 23, 26 (Tenn. 1995).

          The leading case in Tennessee regarding the liability of a business establishment for the

criminal acts of third persons is Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). In

Cornpropst, the Court held:

          There is no duty upon the owners or operators of a shopping center, individually
          or collectively, or upon merchants and shopkeepers generally, whose mode of
          operation of their premises does not attract or provide a climate for crime, to
          guard against the criminal acts of a third party, unless they know or have reason to
          know that acts are occurring or about to occur on the premises that pose imminent
          probability of harm to an invitee; whereupon a duty of reasonable care to protect
          against such act arises.

Id. at 198. In Cornpropst, it was undisputed that the business establishment in question had no

knowledge that an identifiable person would attack the plaintiff customer in the defendant’s

parking lot. The plaintiff sought to establish the liability of the defendant business establishment

by proof of prior criminal activity on the premises or in the immediate area. The Court found

that this was not sufficient to impose liability. Id. at 197.

          Subsequent cases applying Cornpropst have usually involved situations in which the

business establishment did not know or have reason to know that a particular individual was

attacking or about to attack a customer. See, for example, McClung ex rel. McClung v. Delta

Square Ltd. Partnership, 1995 WL 30595 (Tenn. App. Jan. 26, 1995) (permission to appeal

                                                    2
granted Dec. 11, 1995); Lewter v. O’Connor Management Inc., 886 S.W.2d 253 (Tenn. App.

1994); Gray v. McDonald’s Corp., 874 S.W.2d 44 (Tenn. App. 1993). These cases dealt with a

sudden criminal attack in which the attacker could not have been identified in advance of the

criminal act. In each case, allegations of past criminal activity in the area and on the premises

were not sufficient to give rise to a duty for the defendant to protect the invitee from the criminal

acts of a third party. In each, the court found that the defendant merchant did not know or have

reason to know that criminal acts were occurring or about to occur which involved imminent

harm to an invitee.

       In this case, the proof at trial showed that Clark was very intoxicated and loud, and was

pacing around the restaurant without ordering any food. He had verbally harassed an African-

American female customer before turning his attention to Batebi. Clark repeatedly and loudly

tried to bait Batebi into a confrontation. Batebi tried to get the attention of one of the two

employees on duty, but they were too busy to respond. The exchange between Batebi and Clark

which culminated in Clark striking Batebi in the head with a baseball bat lasted approximately

fifteen to twenty minutes.

       Under Cornpropst, the owners or operators of a business establishment may be held

liable for the criminal acts of a third party if “they know or have reason to know that acts are

occurring or about to occur on the premises that pose imminent probability of harm to an invitee .

. . .” Cornpropst, 528 S.W.2d at 198. In this case, we find that there was sufficient evidence

from which a jury could reasonably infer that Krystal should have known that Clark was about to

engage in acts that posed “imminent probability of harm” to Batebi and that Krystal took no

action to remove Clark from the premises or protect Batebi. Therefore, under Cornpropst, we

hold that there was sufficient evidence to impose a duty upon Krystal to take action to protect

Batebi and that there was a breach of that duty.

       Krystal next argues that the criminal act of Clark was a superseding intervening act which

broke the chain of proximate causation. Krystal notes that, when Clark left the restaurant to get

the baseball bat, Batebi believed he had left the premises and would not come back. Batebi

admits that he did not know Clark was going to hit him until it happened. In McClenahan v.

Cooley, 806 S.W.2d 767 (Tenn. 1991), the Tennessee Supreme Court sets forth the test for

proximate causation:

                                                   3
       (1) the tortfeasor's conduct must have been a "substantial factor" in bringing about
       the harm being complained of; and (2) there is no rule or policy that should relieve
       the wrongdoer from liability because of the manner in which the negligence has
       resulted in the harm; and (3) the harm giving rise to the action could have
       reasonably been foreseen or anticipated by a person of ordinary intelligence and
       prudence. The foreseeability requirement is not so strict as to require the
       tortfeasor to foresee the exact manner in which the injury takes place, provided it
       is determined that the tortfeasor could foresee, or through the exercise of
       reasonable diligence should have foreseen, the general manner in which the injury
       or loss occurred.

Id. at 775 (citations omitted). Under McClenahan, in order to be the proximate cause of an

injury, an act need not be “the sole cause, the last act, or the one nearest to the injury,” so long as

it is “a substantial factor in producing the end result.” Id. The Court noted that “ ‘[a]n

intervening act will not exculpate the original wrongdoer unless it appears that the negligent

intervening act could not have been reasonably anticipated.’ ” Id. (quoting Evridge v. American

Honda Motor Co., 685 S.W.2d 632, 635 (Tenn. 1985)). As with the issue of proximate

causation, the question of superseding intervening cause is normally an issue for the jury because

the trier of fact must determine if the act in question was foreseeable. McClenahan, 806 S.W.2d

at 775-76.

       In this case, as stated above, there is sufficient evidence from which a jury could

reasonably infer that Krystal should have known that Clark was about to engage in acts that

posed imminent probability of harm to Batebi. In other words, under circumstances in which

Clark had engaged in drunken and abrasive behavior toward Batebi for approximately fifteen to

twenty minutes, it was foreseeable that Clark would take action to harm Batebi. From this a jury

could reasonably infer that Krystal’s failure to take action to remove Clark from the premises or

protect Batebi was a substantial factor in bringing about the harm to Batebi. Because there is

material evidence to support the jury’s determination that Krystal’s negligence was the proximate

cause of Batebi’s injuries, we affirm on this issue as well.

        Krystal next contends that the trial court erred in allowing Batebi to introduce the

communication records of the Memphis Police Department through Lieutenant Pendleton of the

Memphis Police Department, to show telephone calls to the police department from the

restaurant in question. Krystal argues that Lieutenant Pendleton was not the records custodian of

the police department at the time of trial and that she had been transferred out of the

communications department for almost a year at the time of trial.


                                                   4
        Rule 803(6) of the Tennessee Rules of Evidence provides that business records may be

introduced into evidence by the testimony of the custodian or “other qualified witness.”         Under

Tennessee case law, the term "qualified witness" is given a broad interpretation. Alexander v.

Inman, 903 S.W.2d 686, 700 (Tenn. App. 1995). To be qualified, a witness must be personally

familiar with the record-keeping procedures and must be able to explain them. It is not necessary

for the witness to have personal knowledge of the facts in the record, to have been involved in

the preparation of the record, or even to know who actually created the record. Id.

        Questions on admissibility of evidence lie within the sound discretion of the trial court.

We will reverse the trial court's decision to admit or exclude evidence only on a showing of

abuse of discretion. Arcata Graphics Co. v. Heidelberg Harris, Inc., 874 S.W.2d 15, 24-25

(Tenn. App. 1993); Royal v. Days Inns of Am. Inc., 708 S.W.2d 411, 414 (Tenn. App. 1985).

From our review of the record, there has been no showing of abuse of discretion in admitting this

evidence through Lieutenant Pendleton.

        Finally, Krystal argues that the trial court failed to properly perform its function as

thirteenth juror in approving the jury verdict. Krystal unsuccessfully sought a new trial on the

grounds that the jury verdict was contrary to the weight of the evidence. Krystal argues that

statements made by the trial judge at the hearing on the motion for a new trial demonstrate that

he failed to weigh the evidence in accordance with his role as thirteenth juror.

        The law governing the trial court’s role as thirteenth juror and appellate review thereof is

well summarized in Miller v. Doe, 873 S.W.2d 346, 347 (Tenn. App. 1993). If the trial judge is

dissatisfied with the jury verdict, it is his duty to set the verdict aside and grant a new trial. If the

trial judge is asked to act as thirteenth juror and he approves the verdict without comment, the

appellate court will presume that he adequately performed his function. If the trial court states

reasons for denying the motion for a new trial, the appellate court will examine the stated reasons

only to determine if the trial court properly reviewed the evidence and was satisfied or

dissatisfied with the verdict. If the trial judge makes statements while considering the motion for

a new trial that indicate that he was not satisfied with the jury’s verdict but then does not grant a

new trial, the appellate court should grant one based on the trial court’s dissatisfaction with the

verdict. If the trial judge makes comments indicating that he has misconceived his duty as

thirteenth juror or that he clearly has not followed it, we must reverse and remand the case for a

                                                    5
new trial.

       In Miller, at the hearing on the motion for new trial, the trial judge made lengthy

comments that included remarks such as, “[W]hat makes the judge any smarter than the jury in

this case,” and “I’m not inclined to interfere with the verdict of the jury.” Miller, 873 S.W.2d at

347-48. Although the trial judge also stated that he approved the verdict of the jury, this Court

found that overall his remarks indicated that he was “being deferential to the jury,” with nothing

indicating that he had independently weighed the evidence. Id. at 349.

       In Michelsen v. Stanley, 893 S.W.2d 941 (Tenn. App. 1993), a medical malpractice case,

the plaintiff made a motion for a new trial and asked the trial court to consider the credibility of

the expert witnesses. Id at 941, 943. The trial court stated that the credibility of witnesses “is

peculiarly within the province of the jury” and that “[t]he Court is not the judge of the credibility

of the witnesses.” Id. at 944-45. Consequently, this Court determined that the trial judge’s

remarks demonstrated that he misconstrued his duty as thirteenth juror and remanded the case for

a new trial. Id. at 945.

        The trial court’s duty as thirteenth juror was also discussed in Ridings v. Norfolk

Southern Railway Co., 894 S.W.2d 281 (Tenn. App. 1994). In Ridings, the motion for a new

trial was based on numerous grounds, including whether the verdict was excessive. Id. at 289.

The defendant argued that the following comments by the trial judge indicated that he did not

perform his function as thirteenth juror:

        But without indulging in the interesting intellectual exercise of trying to figure out
        just exactly how the jury arrived at this verdict, the Court is constrained to
        conclude that in view of the evidence that was before the Court, and in view of the
        jury’s important function in resolving credibility issues that the verdict is within
        that range of reasonableness based upon the evidence that the jury heard which
        compels the Court to approve the verdict and deprives the Court of any
        opportunity to substitute its judgment in any way for the amount of that verdict so;
        again, I feel like I have to discharge this important but very difficult, extremely
        difficult task of passing upon the amount of the verdict by concluding that under
        the evidence this jury heard it was a matter for the jury to say, not for the Court.

Id. at 290 & n.4. These remarks were followed by this statement:

        Certainly the verdict and the result is not such that this Court in the
        exercise of its function as a thirteenth juror could in good conscience set
        aside. I’m constrained to overrule the motion.

Id. at 290 (emphasis deleted). Considering the trial court’s overall remarks, this Court noted that

it was clear that the remarks relied upon by the appellant were addressed to issues separate from


                                                  6
the Court’s role as thirteenth juror, issues such as the excessiveness of the verdict. Id. at 289.

Consequently, this Court stated:

       Comments of the trial court with respect to these other issues should not be
       interpreted by us as a failure to properly perform the role as thirteenth juror, since
       they were not offered by the trial court in the context of his role as thirteenth juror.

Id. The Court found that the trial judge then “changed gears” and that the separate thought which

followed the remarks at issue demonstrated sufficiently that the trial court understood its role as

thirteenth juror. Id. at 290.

       In this cause, the defendant Krystal moved for directed verdict at the conclusion of

Batebi’s proof, and the trial court determined that there was sufficient evidence to present the

case to the jury. After the jury verdict, Krystal filed a motion for new trial on numerous grounds,

including the failure to direct a verdict, the alleged excessiveness of the verdict, and the

assessment of 50% fault to Krystal. During the hearing on the motion for new trial, counsel for

Krystal acknowledged that the motion for new trial was based on a number of grounds that were

presented during the trial and to which the trial court had rendered a ruling adverse to Krystal;

consequently, counsel for Krystal said that he would not argue every ground at the hearing.

Krystal then argued at length that the jury had awarded an excessive amount of damages and had

assessed 50% of the fault against Krystal primarily because the jurors knew that defendant Clark

was a pauper and that Batebi would not be able to collect any significant monies from him. After

Batebi’s counsel reviewed the evidence against Krystal, the trial court ruled as follows:

        This case during the trial was a rather long case, but the Court considered
        this matter at that time about the liability of the -- of the Krystal, the owner
        of the premises. The Court concluded at that time that it was a jury question.
        The Court has been sent that same question again in this motion.
                Certainly the amount of the verdict, I don't see how fault can be taken,
        the argument has been made there's really not a legal question but an
        economical question. The fact that one of the defendants, the actor, is a
        pauper, maybe, that's the indication I got, there is no proof to the contrary,
        and he can't pay the judgment, that's not the matter to be considered by the
         jury to consider the fault in the case.
                I believe that this motion under those circumstances will have to be
         denied. Draw an order.

        As in Ridings, the trial court in this case initially addresses issues other than the request

that he reweigh the evidence as thirteenth juror. The first remarks allude to the motion for

directed verdict, noting that the trial court found sufficient evidence to present the case to the jury

and indicating that the motion for a new trial was based on the same grounds. The trial judge


                                                  7
then responds to Krystal’s argument that the jury’s verdict resulted from their realization that

Clark had no money from which to collect a judgment. The trial court indicates agreement with

the amount of the verdict, says that Krystal’s argument is “not a legal question,” and states that

Clark’s status as a pauper is “not the matter to be considered by the jury to consider the fault in

the case.”

       Finally, as in Ridings, the trial judge “changes gears” and summarily rules on the entire

motion. The trial court does not affirmatively state that he is reweighing the evidence, but simply

rules without further comment.

       Unlike Miller v. Doe and Michelsen v. Stanley, the trial court’s remarks do not

demonstrate that he misconstrued his duty as thirteenth juror or “clearly” did not follow it, or that

he was deferring to the jury. Indeed, in Ridings, the trial judge’s remarks on the alleged

excessiveness of the verdict indicated considerably more deference to the jury than do the trial

court’s remarks in this case, yet this Court affirmed the denial of the motion for new trial.

       Appellant’s argument that the trial court failed to perform his function as thirteenth juror

is without merit. The trial court’s denial of the motion for a new trial is affirmed.

       Affirmed. Costs on appeal are taxed to the Appellant, for which execution may issue if

necessary.


                                              HOLLY KIRBY LILLARD, J.


CONCUR:


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



ALAN E. HIGHERS, J.




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