KNOXVILLE, Tenn. (Legal Newsline) - A Tennessee woman who was injured when her brother’s gravestone fell on her can sue the monument company for allegedly affixing the headstone with putty, an appeals court ruled, rejecting the defendant’s complaint there was no evidence it was at fault.
Sylvia Davis was setting flowers at her brother’s grave when the headstone allegedly toppled on her hand, “breaking several bones, necessitating surgery, and causing severe pain and suffering,” an April 14 decision from the Tennessee Court of Appeals says. She sued Keith Monuments, claiming the company was negligent for creating an unsafe condition at the cemetery.
Davis presented an affidavit from a longtime gravestone installer who relied upon a single receipt for “One bucket of Putty” Keith Monuments turned over in discovery to conclude the company had used substandard putty to attach the gravestone and that was the cause of the incident.
The trial court had dismissed the case on summary judgment, agreeing with Keith Monuments that Davis had failed to provide solid evidence the company had used the wrong materials to attach the gravestone or that it had any role in causing it to fall over. The gravestone could have been dislodged any number of ways, Keith Monuments said, including by lawnmowers knocking into it as they tended the property.
“The one certainty is that no one knows what happened,” the trial judge concluded. By the time Keith Monuments went to inspect the site, someone unknown had repaired the damage, leaving no tangible evidence for a jury to consider.
The appeals court reversed, saying the judge had ignored solid evidence that a jury should examine to decide whether Keith Monuments was at fault. In an April 14 decision by Judge Arnold B. Goldin, the court stressed that summary judgment is reserved for cases where there are “no genuine issues of material fact” for a jury to decide.
In this case, the plaintiff essentially argued res ipsa loquitur, or “the thing speaks for itself,” a legal doctrine in which the jury can use physical evidence of a product’s failure to decide it was defectively designed or improperly installed. The judge rejected that claim, saying there were too many alternative explanations for why Davis was hit by her brother’s gravestone.
The appeals court disagreed, however, saying Davis had provided enough evidence that it was possible putty was to blame. While Keith Monuments said it didn’t use putty, the man who installed the monument at issue said he for 10 years he used the same compound, which came in “a white bucket.” He didn’t know what the compound was, but a jury could consider the 2019 receipt for “one bucket of Putty” to be evidence that is what he used.
“Ms. Davis pointed to facts and evidence in the record which could allow a rational trier of fact to find in her favor,” the court concluded. “The trial court’s summary dismissal of her complaint is therefore reversed.”