author: DAVID R. FARMER, J.,

text:
    NISSAN NORTH AMERICA, INC., Successor by Merger to Nissan Motor Manufacturing Company v. Linda J. HAISLIP, Marshall County Assessor of Property, et al.
    Court of Appeals of Tennessee, at Nashville.
    March 18, 2004 Session.
    May 14, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 15, 2004.

      Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Mary Ellen Knack, Assistant Attorney General, for the Appellant, State Board of Equalization.
    Robert O. Binkley, Sr., Lewisburg, Tennessee, for the Appellants, Linda J. Hais-lip, Marshall County Assessor of Property and Marshall County Board of Equalization.
    Martha J. Trammell, Smyrna, Tennessee, Timothy J. Peaden, Mary T. Benton and Timothy L. Fallaw, Atlanta, Georgia, for the Appellee, Nissan North America, Inc.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

The trial court determined that, under Tennessee Code Annotated § 67-5-904, Nissan North America was not liable for ad valorem tax on personal property owned by Nissan but used by its contractors to make component parts for Nissan. We reverse.

This case concerns tools owned by Nissan North America, Inc. (“Nissan”) and located at the premises of Kantus Corporation (“Kantus”) in Marshall County and Excel Industries “(Excel”) in Lawrence County, Tennessee (collectively, “Vendors”). The facts relevant to this lawsuit are not in dispute. Nissan owns a motor vehicle manufacturing plant in Rutherford County. It contracts with various suppliers, including Kantus and Excel, to manufacture and supply component parts. According to Nissan’s specifications, the Vendors design and manufacture specialized tools (including molds, patterns, dies, jigs, fixtures, gauges) to be used exclusively in the manufacture of parts for Nissan. Nissan then purchases the tools, which are marked “Property of Nissan Motor Manufacturing Corporation USA.” Although Nissan holds title to the tools, they remain physically located at the Vendors’ facilities. The Vendors may not remove or dispose of the tools without Nissan’s approval, and Nissan prohibits the Vendors from commingling the tools with the Vendors’ own property. Nissan retains the right to enter the premises of the Vendors and inspect the tools. Neither Nissan nor its Vendors reported the tools as tangible personal property as required by Tenn.Code Ann. § 67-5-903.

In 2000, Nissan received assessments for back property taxes on the tools dating from tax year 1997 from the Marshall County Board of Equalization (“Marshall County”) and the Lawrence County Assessor of Property (“Lawrence County”). Nissan appealed the assessments to the State Board of Equalization (“the Board” or “the State”). The Board affirmed the assessments, and Nissan appealed the decisions to the Assessment Appeals Commission (“the Appeals Commission”). Nissan’s appeals of the Marshall County and Lawrence County assessments were consolidated, and the Appeals Commission conducted a hearing on the matter in October 2001. In April 2002, the Appeals Commission entered an order affirming the determination of the Board.

In accordance with the Administrative Procedures Act and Tenn.Code Ann. § 67-5 — 1511(b), Nissan appealed the Appeals Commission’s determination to Davidson County Chancery Court. The chancery court held a hearing in December 2002, which consisted of the arguments of counsel and was based on the administrative record filed by the Board. The chancery court determined that Nissan had “loaned” the tools to the Vendors. By order of March 2003, the chancery court reversed the Board’s assessment, holding that Nissan was not hable for the property tax as the tools were leased under Tennessee Code Annotated § 67-5-904. The State and Marshall County filed timely notices of appeal to this Court. We reverse.

Issue Presented

As we perceive it, the issue presented in this appeal is whether tangible personal property owned by Nissan, but under the physical control of Nissan’s Vendors, who use it exclusively in the manufacture of component parts for Nissan, is properly classified as leased property under Tenn. Code Ann. § 67-5-904(a)(2)(B), such that Nissan is not liable for ad valorem personal property tax on the property.

Standard of Review

This appeal requires us to construe the provisions of the property tax statutes as codified at Tenn.Code Ann. §§ 67-5-101, et seq., and section 904 of the chapter in particular. Our primary objective when construing a statute is to effectuate the purpose of the legislature. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn.2000). Insofar as possible, we must determine the intent of the legislature from the natural and ordinary meaning of the words used in the statute, and not by a construction that is forced or which limits or extends the meaning. Id. Likewise, the court must seek to ascertain the intended scope of the statute, neither extending nor restricting the scope intended by the legislature. State v. Morrow, 75 S.W.3d 919, 921 (Tenn.2002). Our interpretation must not render any part of the statute “inoperative, superfluous, void or insignificant.” Id. Rather, we must construe statutory provisions within the context of the entire statute, giving effect to its over-arching purpose. Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 151 (Tenn.Ct.App.2001). Issues of statutory interpretation are questions of law which this Court reviews de novo, with no presumption of correctness attached to the determination of the trial court. Morrow, 75 S.W.3d at 921.

Analysis

We begin our analysis by noting that Tenn.Code Ann. § 67-5-901, et seq., is read in pari materia with the Business Tax Act, which is codified at Tenn.Code Ann. § 67-4-701, et seq. Dixie Rents, Inc. v. City of Memphis, 594 S.W.2d 397, 398 (Tenn.Ct.App.1979). The Business Tax Act imposes a tax on the sale of tangible personal property. It is a gross receipts tax. Id. A sale is defined by the chapter as the “transfer of title or possession, or both, exchange, barter, lease or rental ... of tangible personal property for a consideration[.]” Tenn.Code Ann. § 67-4-702(a)(15)(2003).

Chapter five of the title provides that all property, real and personal, shall be assessed for taxation for state, county, and municipal purposes, except as otherwise provided. TenmCode Ann. § 67-5-101(2003). The tax imposed under chapter five is an ad valorem property tax, one that is based on the value of the property taxed. Dixie Rents, 594 S.W.2d at 398. Chapter five further provides for the classification and rate of assessment of tangible personal property except inventories of merchandise held by merchants and taxes levied under the Business Tax Act. Tenn. Code Ann. § 67-5-901(2003). Thus, a lessor who has paid business taxes on lease income under the Business Tax Act is exempt from ad valorem property taxes on the value of the leased goods. IBM Credit Corp. v. County of Hamilton, 830 S.W.2d 77, 79 (Tenn.Ct.App.1992).

Section 67-5-904(a)(2) provides, in pertinent part, that for the purposes of classifying property subject to ad valorem taxes:

Leased property shall include equipment, machinery!,] and all tangible personal property used in the conduct of, or as a part of, the taxpayer’s business including, but not limited to, the following:
(A) Equipment that is leased only, not sold;
(B) Equipment that is leased at nominal rent or loaned under certain circumstances!.]

Tenn.Code Ann. 67-5-904(a)(2)(2003).

In the present case, we agree with the State that Nissan’s contractual agreements with its Vendors do not constitute leases in the traditional sense. A lease generally is construed as a transfer of the use and enjoyment of property in return for a periodic fee. Black’s Law Dictionary 800 (5th ed.1979). In this case, the parties do not dispute that Nissan receives no rental fee for the tools and is not in the business of leasing tools. Moreover, the Vendors exercise physical control over the tools, but must use them exclusively in the manufacture of component parts for Nissan. Further, the tools are so specialized that they have no utility other than the manufacture of parts for particular products or models. Additionally, Nissan’s purchase orders for the tools describe the property as “bailed property.” Clearly, the parties did not construe their agreement as a lease in the ordinary sense.

By definition, however, for purposes of classification under the Code, leased property includes that which is “loaned under certain circumstances.” Tenn.Code Ann. § 67-5-904(a)(2)(B)(2003). The trial court determined that the tools owned by Nissan but used by its Vendors were “loaned” as provided by this section, and that Nissan, therefore, was not liable for the ad valorem tax on the property. The State asserts that, on the contrary, the arrangement between Nissan and its Vendors was not a lease/loan, but a bailment for mutual benefit. We agree.

A bailment for mutual benefit exists

whenever it appears that both of the parties to the contract receive a benefit from the transaction. Such a bailment is one in which the parties contemplate some price or compensation in return for the benefits flowing from the fact of bailment, and it exists when one person gives to another the temporary use and possession of personal property, other than money, for compensation, and the later agrees to return the property to the former at a future time.
Where a bailment is a mere incident to the performance of services for which the bailee receives compensation or to the conduct of a business from which the bailee derives profit, ... it is a bailment for mutual benefit although the bailee receives no compensation for the bailment as such.

8 C.J.S.2d Bailments § 16 (1988)(emphasis added). By contrast, the type of bailment which constitutes a “loan” is a bailment for the sole benefit of the bailee. Id. § 18. It is an uncompensated lending in which the bailee is the sole beneficiary. Id. A loan is a “bailment without reward.” Black’s Law Dictionary 844 (5th ed.1979).

As noted, according to Nissan’s purchase order, the tools are considered “bailed property.” In this case, moreover, we cannot say that the Vendors are the sole beneficiary of the bailment, or that Nissan receives no benefit or reward from the bailment of its property to the Vendors. Indeed, Nissan permits it Vendors to use property to which Nissan retains title for the exclusive purpose of creating parts for Nissan. It is a mutually beneficial arrangement pursuant to which Nissan retains control over the purpose for which its property is used by Vendors who also profit from its use. The bailment is incidental to the Vendors’ performance of services for which the Vendors receive compensation and through which both Nissan and its Vendors derive a profit.

Although we agree with Nissan that the Vendors “use” the tools in their trade, we are mindful that we must interpret and construe the sections of the statute as a whole, and that the Business Tax Act and property tax provisions are read in pari materia. This case presents a unique factual situation in which Nissan holds title to property which it claims to “lease,” but escapes liability for tax which would be imposed on the lease by providing the property, free of fee, to its Vendors. At the same time, Nissan seeks to deny liability for ad valorem property taxes by asserting it does not “use” the property in its primary business of manufacturing cars. However, Nissan exercises control over the use of its property such that its use is limited exclusively to that which furthers the business interests of Nissan.

This is not a loan of personal property, a gratuitous bailment which transfers the use of personal property from its owner/bailor to a bailee for the benefit of the bailee. In this case, Nissan has allowed its Vendors to utilize its property, but the property, or title thereto, is nonetheless held by Nissan, which clearly profits from its use. According to Nissan, it purchases the tools from the Vendors in order to accelerate capital recovery by the Vendors, take advantage of Nissan’s more favorable financing rates, and to avoid over-charges and under-charges from the Vendors which could occur if costs of the tools had been amortized in the price of the parts. Additionally, as Nissan points out, this arrangement allows Nissan to avoid higher prices which would be charged by the Vendors if the Vendors incurred a separate rental fee for use of the tools. Clearly, this arrangement works to the mutual benefit of Nissan and the Vendors, is incidental to the Vendors’ performance of services for Nissan, and furthers the business interests of Nissan.

We do not believe this arrangement constitutes a “loan[ ] under [the] certain circumstances” intended by the legislature to relieve Nissan of liability for the ad valorem tax on personal property which it undisputedly owns and which it does not rent or lease to its Vendors for purposes of the Business Tax Act. Tax exemptions are construed strictly against the taxpayer, and Nissan carries the burden of proving any exemption from taxes on property it owns. See Covington Pike Toyota, Inc. v. Cardwell, Comm’r of Revenue, 829 S.W.2d 132, 135 (Tenn.1992). In this case, Nissan has failed to demonstrate that it has “loaned” the tools to its Vendors such that they may be considered leased under TenmCode Ann. § 67-5-904(a)(2)(B).

Nissan asserts that such a holding would render the term “used or held for use” included in section 67-5-903 meaningless. We do not agree. Part nine of chapter five provides for the methods of classification and rate of assessment of property subject to personal property tax. Section 101 of the chapter enables the assessment of personal property tax. Section 502 provides that “[t]he function of assessment shall be to assess: (1) All property ... to the person or persons owning or claiming to own the same[.]” Tenn.Code Ann. § 67-5-502(a)(l)(2003). The section further provides that “[l]eased personal property shall be classified according to the lessee’s use and assessed to the lessee[.]” Tenn. Code Ann. § 67-5-502(c)(2003). The legislative intent that leased property shall be classified and assessed according to the use of the lessee is reiterated in part nine at section 67-5-901(b). As noted above, this clearly evidences the legislature’s intent that a taxpayer shall not be subject to double taxation on personal property that is owned by the taxpayer but leased and, therefore, subject to taxation under the Business Tax Act. IBM Credit Corp. v. County of Hamilton, 830 S.W.2d 77, 78 (Tenn.Ct.App.1992).

Part nine provides for how property is to be classified and for the rate of assessment of property, including leased property, and cannot be read in isolation from the rest of the chapter. Clearly, the lessee and not the lessor is liable for property taxes on leased property in his possession, and a lessor who has paid business taxes on the lease income is exempt from such property taxes. Under section 904(a)(2)(B) the lessee may also be liable for property taxes on “[equipment that is leased at nominal rent or loaned under certain circumstances!.]” TenmCode Ann § 67-5-904(a)(2)(B)(2003).

With all due respect to the trial court, we do not agree that Nissan has loaned the tools at issue here to its Vendors. Moreover, even if the arrangement were to be considered a loan, the circumstance present in this case are not the “certain circumstances” which would exempt Nissan from liability for property tax on these tools. As noted, in its contracts with its Vendors, Nissan clearly requires that the tools are to be used only to further Nissan’s business interests. This is not a bailment without reward such that Nissan is exempt from property taxes on tools which it owns.

Holding

Nissan is not exempt from the ad valo-rem property tax imposed by section 67-5-101 on tools which it owns, does not lease for a fee subject to the Business Tax Act, and provides to its Vendors for the exclusive use of furthering Nissan’s business interests. The arrangement between Nissan and its Vendors constitutes a bailment for mutual benefit, where the property physically is controlled by the Vendors but where the bailment is merely incidental to the Vendors’ performance of services for Nissan, for which the Vendors receive compensation. This property has not been leased under section 67-5-904. Accordingly, we reverse the judgment of the chancery court and reinstate the assessment of the Board. Costs of this appeal are taxed to the Appellee, Nissan North America, Inc.

      . Nissan asserts that it does not bear the burden of demonstrating an exemption as this case does not involve a question of an exemption, but rather only one of who is liable for the tax. We disagree. Nissan is liable for the ad valorem tax on property it owns unless it can demonstrate that it has leased the property or that it is otherwise exempt under the Code. See IBM Credit Corp. v. County of Hamilton, 830 S.W.2d 77, 79 (Tenn.Ct.App.1992)(holding: a property owner who has paid taxes on leased property under the Business Tax Act is exempt from ad valorem taxes on the property).


source: Caselaw Access Project

author:
CHARLES D. SUSANO, JR., J.,
      D. MICHAEL SWINEY, J.,

license: Public Domain

text:
    Patricia ALBRIGHT v. Lloyd A. BUTTON, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 22, 2004 Session.
    July 20, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 20, 2004.

      John E. Appman, Jamestown, Tennessee, for the appellants, Lloyd A. Button and Shirley Reno, Co-Executor/Executrix of the Estate of Lloyd A. Button, Deceased.
    Rex A. Dale and Terry Vann, Loudon, Tennessee, for the appellee, Patricia Al-bright.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., joined. D. MICHAEL SWINEY, J. filed a separate concurring opinion.

This case involves the construction of a will. Lloyd A. Button, a widower (“the Deceased”), executed his last will and testament on April 1, 2002, while hospitalized at Parkwest Hospital in Knoxville. Under the heading “Conditional Bequest to Patricia Albright,” the Deceased left Ms. Al-bright his Loudon County residence, one of his automobiles, and “all ... tangible personal property,” except the property mentioned in a specific bequest in the will. The Deceased died one week later, on April 8, 2002, having never left the hospital. Ms. Albright sued the personal representatives of the Deceased’s estate (“the Personal Representatives”) seeking to establish her entitlement to the property left to her in the will. On cross motions for summary judgment, the trial court granted summary judgment to Ms. Albright. The Personal Representatives, who are the Deceased’s son and Shirley Reno, a residuary beneficiary under the will, appeal. We reverse and dismiss Ms. Albright’s complaint.

I.

The Personal Representatives contend on appeal that Ms. Albright is not entitled to summary judgment, but that they are. In general terms, they argue that the legacy to Ms. Albright is conditional and that the conditions were not satisfied. We find that the facts which are material to the resolution of the issue in this ease are undisputed. We hold that the Deceased’s will, when interpreted as required by well-established precedent, clearly delineates conditions for the gift to Ms. Albright, which, through no fault of her own, were not satisfied.

II.

The pertinent provisions of the Deceased’s will are as follows:

5.1 Conditional Bequest to Patricia Albright: During my lifetime, PATRICIA ALBRIGHT (“Albright”) agreed to provide personal assistance and care-giving to me at my residence until my death because I did not want to become a patient in a nursing home. Albright agreed to provide the following services during my lifetime on an “as needed” basis:
(i) Attend to my needs, including preparation of nutritious, appropriate meals and snacks, house cleaning and laundry;
(ii) Assist me with grooming, bathing, dressing, and personal shopping, as needed;
(iii) Purchase, with funds made available by me, or assist me in purchasing clothing, toiletries, and other personal items for me as needed, taking into account my ability to pay for such items;
(iv) Monitor my physical and mental condition and nutritional needs on a regular basis in cooperation with health care providers;
(v) Arrange for transportation to health care providers and to the physician(s) of my choice, and also arrange for assessment, services and treatment by appropriate health care providers, including but not limited to, physicians, nurses, physical therapists, and mental health specialists as needed for me;
(vi) Assist me in carrying out the instructions and directives of my health care providers; and
(vil) In the event I became [sic] bedridden, reside with me at my residence for so long as I remained bedridden, even for the duration of my life, if necessary.
To the extent that Albright has consistently and faithfully provided the services described above, I give, devise, and bequeath to her my personal residence located at 121 Tigitsi Lane, Loudon, Tennessee, one of my automobiles of her choosing, and all of my remaining tangible personal property (after the bequest contained in Section 4.1 above).
5.2 Disposition of Conditional Bequest If Conditions Are Not Met: If PATRICIA ALBRIGHT failed to provide personal assistance and care-giving services to me during my lifetime in accordance with all the terms and conditions of Section 5.1 above, or if PATRICIA ALBRIGHT predeceases me, then the automobile and remaining personal property bequeathed to PATRICIA AL-BRIGHT as referenced in Section 5.1 above shall be distributed to my sister, DOROTHY MERRIMAN, and the bequest of my personal residence to PATRICIA ALBRIGHT shall lapse and my personal residence shall be distributed as part of my Residuary Estate.

(Capitalization, bold print, and underlining in original). Both sides agree that the gift to Ms. Albright is conditional. They sharply disagree regarding the Deceased’s intention with respect to the conditions and — as a natural consequence of that dispute — whether the conditions were satisfied prior to the death of the Deceased.

III.

Tenn. R. Civ. P. 56 addresses motions for summary judgment. In essence, the rule provides that a movant must demonstrate that there are no genuine issues of material fact and that the movant is enti-tied to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. All of the properly-established facts and reasonable inferences from those facts are to be viewed in a light most favorable to the nonmoving party. Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993). Summary judgment is only appropriate in those situations where a reasonable individual, in considering the facts and the reasonable inferences favorable to the nonmovant, could reach only one conclusion. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997).

IV.

The facts in this case come to us by way of the affidavits of Ms. Albright, Ms. Reno, and J.B. Looper, another of the residual beneficiaries under the will, and the depositions of Ms. Albright, Ms. Reno, and the son of the Deceased. The ultimate issues for us are whether there are material facts in dispute; if not, whether Ms. Albright is entitled to summary judgment; and, if she is not, whether the Personal Representatives are entitled to summary judgment.

We begin our discussion by acknowledging that which is the central inquiry in a case involving the interpretation of a will: What did the testator/testatrix intend by the language used by him/her in the will? That intent controls unless to honor it would violate some rule of law or public policy. In re Walker, 849 S.W.2d 766, 768 (Tenn.1993). It is important to recognize that our inquiry is made within well-defined, somewhat-restrictive parameters. The Supreme Court, in the case of In re Walker, addressed this issue thusly:

[T]he testator’s intention must be ascertained from “that which he has written” in the will, and not from what he “may be supposed to have intended to do,” and extrinsic evidence of the condition, situation and surroundings of the testator himself may be considered only as aids in the interpretation of the language used by the testator, and “the testator’s intention must ultimately be determined from the language of the instrument weighed in the light of the testator’s surroundings, and no proof, however conclusive in its nature, can be admitted with a view of setting up an intention not justified by the language of the writing itself.”

Id. at 768. (quoting Nichols v. Todd, 20 Tenn.App. 564, 570-71, 101 S.W.2d 486, 490 (1936) (quoting Sizer’s Pritchard on Wills (2d Ed. §§ 384, 387, 388, 409))). When interpreting the meaning of language in a will, we do so by giving that language its ordinary and usual meaning. In re Estate of Hale, 704 S.W.2d 725, 727 (Tenn.Ct.App.1985). The interpretation of a will is a question of law for the court. Biirchfiel v. First United Methodist, 933 S.W.2d 481, 483 (Tenn.Ct.App.1996).

The parties agree that, generally speaking, a gift in a will can be made conditional. See Cannon v. Apperson, 82 Tenn. 553 (1885). In Cannon, the Supreme Court noted that “[a] legacy is conditional when it is made to depend upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated....” Id. at 566. Although, “[n]o precise form of words is required to create a condition in a will,” the court determined that “any expression sufficiently disclosing the intention will have that effect.” Id. When construing the condition, courts must look to “the intention of the parties as gathered from the instrument and the existing facts.” Id. (citation omitted). The legatee who is subject to a condition bears the burden of proving that he/she has complied with the condition. Id. at 567.

V.

We will now examine “extrinsic evidence of the condition, situation and surroundings of the testator.” In re Walker, 849 S.W.2d at 768. In doing so, we recognize that such extrinsic evidence can be utilized only as an “aid[ ] in the interpretation of the language used by the [Deceased]” and that such extrinsic evidence, nó matter how “conclusive in nature,” cannot be used to justify an intention “not justified by the language of the writing itself.” Id.

VI.

On the record before us, the following “condition,- situation and surroundings of the [Deceased]” are not in dispute. In 1998, Ms. Albright met the Deceased (DOB: October 4, 1926) at a yard sale. Ms. Albright, who then owned a residential and commercial cleaning business, began cleaning the Deceased’s house the week after they met: She provided cleaning and other services for the Deceased -at his residence up until his last hospitalization in March-April, 2002. When he was sick at home, she provided overnight care, sometimes staying in a bedroom at his house. The parties were romantically involved for an unspecified period of time and actually lived together for two days in 2001, after which Ms. Albright moved out because she did not think it was right.

It is clear beyond any doubt that Ms. Albright provided valuable services for a fee to the Deceased at his house prior to his last hospitalization. During earlier hospitalizations and in his absence from home, she had continued to clean his house and provide other services to him, again all for a fee.

Sometime after the parties met, Ms. Al-bright and the Deceased orally agreed that, in the event his condition was such as to require around-the-clock care, that he would remain in his residence and she would provide all of the necessary care. While Ms. Albright does not state in her affidavit or deposition precisely what she was to receive in return for her commitment, her complaint alleges that she was to receive, apparently in addition to her normal fee for services rendered, “a vehicle of her choosing” and “the [Deceased’s] residence” in Loudon. In her deposition, Ms. Albright did testify as follows regarding the parties’ oral agreement:

[The Deceased] loved me. He wanted me taken care of. ■ And I promised him he would never go into a nursing home if I had to take care of him 20 years. We knew that down the line I would have to give up all my business and be there constantly.

Ms. Albright acknowledges 'that the Deceased paid her for all of the services that she provided to him up until he went into the hospital for the last time.

According to the co-executrix, Ms. Reno, she was aware, based upon conversations with the Deceased, that he was afraid of being admitted to a nursing home. Ms. Reno testified that they had discussed possible arrangements that would enable him to avoid going to a nursing home, but she stated she was not aware of the “oral agreement” about which Ms. Albright testified. For the purpose of this appeal, we accept as true Ms. Albright’s testimony regarding an oral agreement with the Deceased.

The Deceased also told his son that he was afraid of being admitted to a nursing home. The Deceased’s son testified in his deposition with respect to his father’s motivations for making the gift to Ms. Al-bright conditional:

A We discussed the options and his fear was that, he had 2 fears, one, he didn’t want to end up in a nursing home. He was also afraid that [Ms. Albright] would not continue to care for him in the future. So, therefore, we worked out, we talked about the care of the future to get her to stay around based on her length of service to him, she could eventually end up with the house.
Q When was that conversation?
A We started the conversation in Thanksgiving of 2001. We went to the lawyer in March of 2002 to begin the discussion with the lawyer.
Q So, you had gone to this attorney prior to your dad going in the hospital?
A Yes.
Q You say that your father expressed a concern that [Ms. Albright] might not continue to care for him?
A That’s true.
Q Is that the basis for the conditions that are set forth in the will?
A Yes.
Q And in talking with you about that arrangement, did he say that he had an agreement with [Ms. Albright] that she would do this, but that his fear was that she might not continue to do it, am I reading you correctly on that?
A I-no, you’re not reading me correctly.
Q Okay. Did he say that he had an understanding with [Ms. Albright] about caring for him?
A He told me that she had told him that she would take care of him so that he would not have to go into a nursing home.
Q What benefit was to flow to her in exchange for her doing that?
A Based on the length of time from this point forward that she took care of him that he was in need of nursing home care, in lieu of nursing home care. Not just the regular being around. Based on that length of service that would have replaced the nursing home need, she would build up equity in the house. And that is where we left it with the lawyer and unfortunately he was concerned with the surgery. So, the exact details of that were not—
Q I was going to say it doesn’t speak to those terms in the will.
A It was, actually, when we talked to the lawyer it was going to be a separate contract.

The Deceased did not execute his will prior to his last admission to Parkwest Hospital on March 20, 2002. He was scheduled for surgery, and he apparently expected to return home. He decided to execute his will during his hospital stay and, as previously indicated, did so on April 1, 2002.

Ms. Albright stated in her affidavit that, after the Deceased executed his will, she complied with the conditions set forth in that document. Specifically, the affiant states as follows:

[W]hile [the Deceased] was in the hospital, I visited him on a regular daily basis for the purpose of ascertaining and over seeing that his needs were properly being met by either myself or the hospital staff. These needs included, but were not limited to food, personal hygiene, personal affairs, and medical treatment.
I had a specific daily routine that consisted of calling the nursing station on [the Deceased’s] floor to check up on [the Deceased’s] medical treatment, sleeping history, eating history and other progress that [the Deceased] had made from the time that I had last called or visited on the prior day. I would then call [the Deceased’s] room and talk to [the Deceased] to see how he was feeling, what he needed or wanted me to bring him that day, and to tell [the Deceased] what time I would be coming to the hospital to see him that day.
I have many years experience as a nursing assistant which equipped me with the knowledge necessary to give [the Deceased] baths, assist in pulling him up in bed, shave him, and to change or assist in changing his bed as needed. I made sure each of these “labors of love” for [the Deceased] were consistently and routinely performed for [the Deceased] on a daily basis for each and every day that he was in the hospital....
I made sure that [the Deceased’s] meals were properly selected from the hospital menu. I made sure [the Deceased] had an adequate supply of snacks consistent with his diabetic condition (peanut butter and cheese crackers, mostly). I spoke with his nursing staff about his eating habits. During the last week of his life I cooked and brought to the hospital for [the Deceased] to eat, at his request, fried green tomatoes, okra and cornbread.
I brought [the Deceased] socks from home to wear for his cold feet and a supply of clean underwear. I took his dirty laundry home and washed it....
I provided [the Deceased’s] personal items during his stay in the hospital, including but not limited to toothpaste, tissues, razor and electric razor, comb, hairbrush, and cologne, as well as other personal items he needed....
I closely monitored his medical progress by speaking with [the Deceased], his physicians and his nurses as described above for his entire stay in the hospital. I made his nursing staff aware of any abnormal behavior [the Deceased] exhibited, such as disorientation or other general and specific complaints [the Deceased] revealed to me.... I asked his physicians about [the Deceased’s] condition, when [the Deceased] would be able to come home, and calmed and reassured [the Deceased] when he expressed fears.

(Paragraph numbering in original omitted). In his affidavit, Mr. Looper stated that “[f]rom my observations and personal experience, the hospital provided for all of [the Deceased’s] needs.”

There are certain facts of which this court can take judicial notice. The facts that follow are either

(1) generally known within the territorial jurisdiction of -the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Tenn. R. Evid. 201(b). Parkwest Hospital is located in west Knoxville. Knoxville is located in Knox County. Loudon County is adjacent to, and to the southwest of, Knox County. Essentially all of the services recited as conditions in the Deceased’s will are services that would be rendered by a hospital such as Parkwest for individuals admitted to the hospital on an inpatient basis. Regardless of whether the trial court took judicial notice of the foregoing facts, we are authorized to do so. Tenn. R. Evid. 201(f) (“Judicial notice may be taken at any stage of the proceedings.”).

VII.

The Personal Representatives make a number of contentions: first, that the burden is on Ms. Albright, as the conditional legatee, to show that she is entitled to the conditional gift in the will; second, that the language of the will, in the words of the Personal Representatives, “unmistakably requires the active performance of services by [Mrs.] Albright ... in order to satisfy the condition”; third, that the language of the conditions, being in the conjunctive, requires that all conditions, not just some, be satisfied; fourth that the will was focused on future services and not on those that had been performed in the past for a fee; and, finally, that the subject services were to be performed at the residence so, again in the words of the Personal Representatives, the Deceased “would not become a patient in a nursing home.”

Ms. Albright’s general position is that “she satisfied the conditions necessary for the [legacy] to her.” She points out that the will provides that the enumerated services are to be provided by her on an “as needed” basis. She contends that the “as needed” language “is not limited by services to be performed only at the residence of the decedent.” Ms. Albright again points to the language of the will and argues that the following language located just before the “gift” language is particularly pertinent:

To the extent that [Ms.] Albright has consistently and faithfully provided the services described above, I give, devise, and bequeath ...

(Emphasized language is that which is stressed by Ms. Albright). She argues that this language is not tied into the will’s reference to the Deceased’s residence. Significantly, Ms. Albright agrees that the period from April 1, 2002, to April 8, 2002, is the relevant “period of time” on which the court must “focus” in order to determine if the conditions have been satisfied.

Ms. Albright further contends that the will is evidence of her oral agreement with the Deceased that she “would care for [him] during his lifetime, and that in return for [her] services,” he would leave her certain property.

VIII.

We disagree with the contention of Ms. Albright that the conditions set forth in the will should be viewed in a vacuum, without reference to the following statement in the will:

During my lifetime, PATRICIA AL-BRIGHT (“Albright”) agreed to provide personal assistance and care-giving to me at my residence until my death because I did not want to become a patient in a nursing home.

(Emphasis added). When the language chosen by the Deceased is viewed in the context of the “condition, situation and surroundings of [the Deceased]” leading up to the execution of the will, it is clear to 'us that the quoted portion of the will is at the core of the Deceased’s intention. He did not want to go to a nursing home. If he reached a point where he needed around-the-clock care, ie., nursing home-type care, he wanted to stay in his residence and wanted Ms. Albright to care for him there. This she agreed to do, as shown by testimony and the Deceased’s statement in his will to the same effect. In this regard, her testimony is totally consistent with the language of the will. In fact, all of the undisputed material facts before us are fully consistent with the unambiguous language of the will.

Ms. Albright agrees that the critical time frame in this case is the period beginning with the execution of the will on April 1, 2002, and ending with the Deceased’s death on April 8, 2002 — a period of one week. If Ms. Albright is to show that she satisfied the conditions, she must show that she did so during this one-week period. She attempts to do so by her affidavit. We agree that she has shown that she “over[saw]” the furnishing of services by hospital personnel; that she stayed in touch with the Deceased’s health providers during that one week in April; and that she generally made sure that the Deceased was receiving appropriate care while in the hospital. We further acknowledge that, at his request, she brought to the hospital “fried green tomatoes, okra and cornbread.” She obviously was concerned about his welfare and attentive to his needs. We hold, however, that the will contemplated something different, ie., services to the Deceased at his home.

When the Deceased executed his will, he had already been in the hospital for some 12 days. He was no stranger to hospitals, having been previously admitted to a hospital on more than one occasion. From all of this, we can conclude that he executed his will — with the conditional bequest to Ms. Albright — at a time when he knew that of which we have taken judicial notice: essentially all of the services listed as conditions in' the will are services that are routinely provided by hospital personnel and other health providers to those who are admitted to the hospital. Equipped with this knowledge, and being ever mindful of his desire to live his remaining days at home rather than in a nursing home, the Deceased, in setting the conditions for Ms. Albright’s legacy, had to be focused on a period of time beginning after he left the hospital. The only reasonable interpretation of the will is that the conditions — and Ms. Albright’s obligation to satisfy them— would only come into play if the Deceased left the hospital. Since he never did, the conditions could not be satisfied, and, hence, were not satisfied per the terms of the will. It matters not that Ms. Albright was never afforded an opportunity to furnish the services stated in the will, ie., prospective services in the Deceased’s home. Regardless of why they were not performed, it remains that they were not. Hence, the conditions were not satisfied, and Ms. Albright is not entitled to the property conditionally left to her in the will.

IX.

The judgment awarding Ms. Albright summary judgment is reversed and her complaint is dismissed at her cost, both on appeal and at the trial court level. Summary judgment is hereby awarded to the Personal Representatives. This case is remanded to the trial court for the collection of costs assessed there.

D. MICHAEL SWINEY, J., filed a separate concurring opinion.

D. MICHAEL SWINEY, J.,

concurring.

While I concur with the majority to reverse the decision of the Trial Court and to dismiss Ms. Albright’s Complaint, I write separately to express my disagreement with the majority’s decision to take judicial notice of certain facts. I agree completely with the majority’s discussion of what the law is as to summary judgment, interpretation of a will, conditional bequests, and judicial notice. However, I cannot agree with the majority that this Court can take judicial notice that “[ejssentially all of the services recited as conditions in the Deceased’s will are services that would be rendered by a hospital such as Parkwest for individuals admitted to the hospital on an inpatient basis.” While I suspect that such is true, I cannot say that such a “fact” is “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tenn. R. Evid. 201(b). This being so, I cannot agree that this is a “fact” which is appropriate for judicial notice.

Having stated my disagreement, I do concur with the decision to reverse the Trial Court’s grant of summary judgment and to dismiss Ms. Albright’s Complaint. I believe the undisputed material facts contained in the record show, as found by the majority without resorting to judicial notice, that the Deceased’s clear intent in making the conditional bequest in Section 5.1 of the will was to provide for his future care by Ms. Albright at his home after he left the hospital. Section 5.2 of the will provides, basically, that the conditional bequest fails “If PATRICIA ALBRIGHT failed to provide personal assistance and care-giving services to me during my lifetime in accordance with all the terms and conditions of Section 5.1 above.... ” Section 5.2 of the Deceased’s will does not require that Ms. Albright refused or declined to provide the services for the bequest to fail, but requires only that she “failed” to do so. I believe the undisputed facts show that Ms. Albright, through no fault of her own, “failed to provide personal assistance and care-giving services ...” to the Deceased at his home after he left the hospital. The conditional bequest fails not because Ms. Albright refused to provide these services, which she did not, but simply because Ms. Albright failed to provide these services because the Deceased never returned home from the hospital. This being so, I agree with the majority that the conditional bequest fails and, therefore, I concur with the majority to reverse the decision of the Trial Court and dismiss Ms. Albright’s Complaint.

      . The Deceased was in the hospital continuously from March 20, 2002, to the date of his death.

      . The name of the Deceased's son is also "Lloyd A. Button.” It is not clear whether they shared the same middle name or just the same middle initial. What is clear is that the son now goes by "Lloyd A. Button.” If he ever used the suffix "Jr.,” he apparently dropped it after his father's death.

      . When we say "not in dispute,” we do not mean that the subject facts are agreed-to by both sides of this litigation. We simply mean that one side or the other has presented properly-verified, admissible-at-trial evidence of certain facts, and those facts are not controverted by evidence presented by the other side.

      . Ms. Albright thought they entered into the agreement in 1998, but she was not sure about the year.

      . This is not to say that the trial court did not take judicial notice of these facts. We simply do not know if the lower court did or not. The point is that even if the trial court did not do so, we are still at liberty to judicially notice that which would be generally known in Lou-don County or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tenn. R. Evid. 201(b).


author: WILLIAM B. CAIN, J.,

text:
    Wayland MOSLEY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY.
    Court of Appeals of Tennessee, at Nashville.
    April 16, 2004 Session.
    July 23, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 31, 2005.

      Francis H. Young, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County.
    John M. Cannon, Goodlettsville, Tennessee and David L. Cooper, Nashville, Tennessee, for the appellee, Wayland Mosley.
   OPINION

WILLIAM B. CAIN, J.,

delivered the opinion of the court,

in which WILLIAM C. KOCH, JR., P.J., M.S., and FRANK G. CLEMENT, JR., J., joined.

Metropolitan Government of Nashville and Davidson County appeals from the judgment of the trial court in favor of Plaintiff Mosley, a motorcycle patrolman, who was seriously injured in an on-duty motorcycle accident. Applying comparative fault principles the trial judge held Metro 75% at fault and Mr. Mosley 25% at fault for his injuries. Finding that Plaintiff has failed to establish cause-in-fact between the alleged defect in the helmet and the injuries to Plaintiff, we reverse the action of the trial court.

In this case tried before the Circuit Court of Davidson County without the intervention of a jury, Plaintiff Wayland Mosley, a motorcycle patrol officer for Metropolitan Government of Nashville and Davidson County, (“Metro”) was operating his motorcycle in the line of duty on March 29, 1997. Mr. Mosley was operating his 1996 Harley-Davidson Road King motorcycle in formation near Cannery Row in downtown Nashville, when the formation undertook to execute a right turn. Mr. Mosley failed to adjust his speed to accommodate the turn and collided -with the rear of Officer Leonard Keeler’s motorcycle. As a result of this collision Mr. Mosley was thrown from his motorcycle on to the pavement striking his helmet covered head on the pavement. The impact of the helmet and pavement tore the helmet from his head after which a second impact between Mr. Mosley’s head and the pavement resulted in very serious head injuries to Mr. Mosley.

Mr. Mosley filed suit against his employer, Metro, the manufacturer of his motorcycle helmet, Hong Jin Crown, Inc., and HJC America, Inc., distributor of the motorcycle helmet, charging the manufacturer and distributor of the HJC/FG-2 half helmet involved in the accident with tor-tious misrepresentation of the quality and safety of the helmet, breach of implied warranties of merchantability and fitness, and negligent manufacture of a product which was defective and unreasonably and inherently dangerous. Plaintiff charged that Metro was negligent in maintenance of the helmet and caused a hazardous situation by supplying Plaintiff with a defective helmet creating an unsafe and dangerous condition. All Defendants answered denying liability with Metro pleading the affirmative defense of comparative fault. On June 6, 2002, Plaintiff filed a Notice of Voluntary Dismissal as to Defendants, HJC America, Inc. and Hong Jin Crown Corp. The case was tried on the issues drawn between Plaintiff and Defendant Metro. The trial court entered its order on March 12, 2003, finding in pertinent part:

[T]he court made specific findings of fact and conclusions of law which are incorporated herein by reference and finds that the Defendant, Metropolitan Government of Nashville and Davidson County (“Metro”), has a duty to provide a safe work place for employees, considering the working environment and the reasonably foreseeable dangers of the work performance of a police officer. The Court finds that Metro had a duty to a provide proper and safe motorcycle helmet for the Plaintiff. The Court finds that two (2) officers complained to their supervisors about the helmet issued to Plaintiff, and that the defective condition of the helmet was general knowledge in the unit. The Court finds that Metro knew, or should have known, about the unreasonably dangerous condition of the helmet issued to Plaintiff, and that the helmet was defective and posed an unreasonable risk of harm due to the nature of the job. The Court also finds that based upon the testimony of Metro’s representative, that upon notice of the condition of the helmet, the helmet should have been taken out of service. The Court further finds that it was reasonably foreseeable that injury could occur from the known defective condition of the helmet. The Court finds that due to the nature of the use of a motorcycle in police activities, that Metro had a higher duty to issue safe headgear to its officers. The Court finds that Metro was negligent in issuing the helmet to Plaintiff and failing to remove the helmet from service, and that this negligence was the proximate legal cause of the injuries to the Plaintiff.
The Court further finds that the Plaintiff was negligent for not wearing a three quarter (3/4) helmet issued to the Plaintiff. However, the Plaintiffs fault is less [than] Metro’s. The Court finds that the Plaintiff is attributed twenty-five percent (25%) of the fault, and that Metro is attributed seventy-five (75%) of the fault.

This negligence case is governed by the restricted abrogation of governmental immunity provided by the Tennessee Governmental Tort Liability Act Tenn.Code Ann. §§ 29-20-101, et seq. The total judgment against Metro was for the $130,000 maximum limits provided by the Tennessee Government of Tort Liability Act Tenn. Code Ann. § 29-20-403. Metro filed a timely appeal.

At remote common law, negligence consisted of three elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant breaching that duty, and (3) an injury that was proximately caused by the defendant’s conduct. De Glopper v. Nashville Ry. and Light Co., 123 Tenn. 633, 642-43, 134 S.W. 609, 611 (1911); Shouse v. Otis, 224 Tenn. 1, 7, 448 S.W.2d 673, 676 (Tenn.1969). However, “The common law does not have the force of Holy Writ; it is not a last will and testament, nor is it a cadaver embalmed in perpetuity, nor is it to be treated like the sin of Judah — ‘written with a pen of iron and with the point of a diamond.’ Jeremiah 17:1.” Dunn v. Palermo, 522 S.W.2d 679, 688 (Tenn.1975).

Continuing experience in negligence cases brought about evolutionary changes in the law defining tort liability.

In 1991 the supreme court redefined these components by separating the injury component from the causation component and by bifurcating causation into two separate components. Accordingly, common-law negligence causes of action are now understood to contain five elements; (1) a duty of care owed by the defendant to the plaintiff, (2) conduct by the defendant breaching that duty, (3) an injury or loss to the plaintiff, (4) causation in fact, and (5) proximate or legal cause. McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991).

Waste Management v. South Central Bell, 15 S.W.3d 425, 430 (Tenn.Ct.App.1997).

As the element of “causation in fact” is determinative of the issues under the facts of this case, it is well to define comprehensively the meaning and scope of the term. Judge Koch provided this definition in Waste Management v. South Central Bell, 15 S.W.3d 425 (Tenn.Ct.App.1997).

Causation in fact and legal cause are very different concepts, Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 83 (Tenn.1996); Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993), and distinguishing between them has been hailed by some as one of the most helpful of the recent breakthroughs in negligence jurisprudence. See, e.g., 4 Fowler v. Harper, et al., The Law of Torts § 20.2 n. 1 (2d ed.1986); Victor E. Schwartz, Comparative Negligence § 4.1, at 89 (3d ed.1994). Causation in fact refers to the cause and effect relationship that must be established between the defendant’s conduct and the plaintiffs loss before liability for that particular loss will be imposed. Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1353 (1981). On the other hand, legal cause connotes a policy decision by the judiciary to deny liability for otherwise actionable conduct. Bain v. Wells, 936 S.W.2d 618, 625 (Tenn.1997); George v. Alexander, 931 S.W.2d 517, 521 (Tenn.1996). It requires the courts to establish the boundary of legal liability, Kilpatrick v. Bryant, 868 S.W.2d at 598, using mixed considerations of logic, common sense, justice, policy, and precedent. Smith v. Gore, 728 S.W.2d 738, 749 (Tenn.1987); Lancaster v. Montesi, 216 Tenn. 50, 56, 390 S.W.2d 217, 220 (1965).
The defendant’s conduct must be a cause in fact of the plaintiffs loss before there can be liability under-negligence or any other theory of liability. Harper, supra, § 22.16, at 400; Schwartz, supra, § 4-l(a), at 90. Thus, no negligence claim can succeed unless the plaintiff can first prove that the defendant’s conduct was the cause in fact of the plaintiffs loss. Lancaster v. Montesi, 216 Tenn. at 55, 390 S.W.2d at 220 (stating that “[i]f ... defendant’s conduct ... was not a factor in causing plaintiffs damage, that ends the matter.”); Drew-ry v. County of Obion, 619 S.W.2d 397, 398 (Tenn.Ct.App.1981) (stating that “[p]roof of negligence without proof of causation is nothing.”); Carney v. Goodman, 38 Tenn.App. 55, 61, 270 S.W.2d 572, 575 (1954). The inquiry is not a metaphysical one, but rather a common sense analysis of the facts that lay persons can undertake as competently as the most experienced judges. Restatement (Second) of Torts § 431 cmt. a (1965); Harper, supra, § 20.2, at 91; W. Page Keeton, Prosser and Keeton on the Law of Torts, § 41, at 264 (5th ed.1984).

Waste Management v. South Central Bell, 15 S.W.3d 425, 430 (Tenn.Ct.App.1997).

Applying the Waste Management analysis described, it is seen that if causation in fact does not exist, liability does not exist, and one never reaches the issue of proximate or legal cause. In this case no issue is made relative to the cause of the motorcycle accident. The case focuses entirely on the helmet worn by Mr. Mosley, the impact of the helmet with the pavement, the separation of the helmet from the head of Mr. Mosley, and the second impact between Mr. Mosley’s head and the pavement. The particular helmet in issue had been previously worn by Officer Jim Reed and was given to Mr. Mosley in December of 1996 when he replaced Officer Reed in the motorcycle unit. The HJC helmet was what is called a “half-helmet” and had been consistently used by police officers in the Metro motorcycle division. In the summer of 1996, Officer Reed had experienced a separation of the exterior fiberglass shell of the helmet from the internal styrofoam liner while operating his motorcycle on Interstate 24 when wind deflected by the windshield of the motorcycle was blowing in his face. He complained about this incident to his superiors but continued to wear the helmet until he transferred it to Mr. Mosley at the time he left the motorcycle division. It is this separation phenomenon which is asserted by the plaintiff to be the defect in the helmet. Mr. Mosley complained to Sergeant Jones about the helmet expressing concerns about the styrofoam liner separating from the hard shell of the helmet, but only after hearing of Officer Reed’s experience, and never as a result of first-hand experience of the same separation. Nonetheless, on January 6, 1997, Mr. Mosley was issued a new 3/4 length helmet which was referred to as a “winter helmet.” Most other motorcycle officers were likewise issued a 3/4 helmet, but they complained about the 3/4 length helmet asserting that it interfered with acoustics and peripheral vision. Motorcycle officers including Mr. Mosley continued to prefer the half-helmet, and Mr. Mosley continued to use the half helmet that was alleged to be defective. Metro did not take this particular helmet out of service but left it instead with Mr. Mosley. He was wearing this half helmet on the evening of the accident.

The primary complaint of the plaintiff is the alleged negligent failure of Metro to take this particular helmet out of service.

Cause-in-fact cannot be established by the simple process of finding Metro to have breached its duty in not taking the particular helmet out of service. An automobile with burned out taillights should certainly be taken off the road by the driver, and a failure to do so would constitute a breach of the applicable standard of care. If the same car with headlights operating is involved in a head on collision with an oncoming vehicle, nothing else appearing in the evidence, it is hard to imagine how the burned out taillights could be a cause in fact of the accident. By that same analysis, if the separation between the styrofoam liner and the plastic helmet is a defect, one might say Metro breached its duty to provide a safe workplace by failing to take the particular helmet out of service. If, however, Plaintiff offers no proof that this alleged defect was a cause in fact of his injuries the particular breach of Metro does not establish liability.

One’s first inquiry, in analyzing a situation such as is before us, is whether the alleged acts of defendant were a cause in fact of the injury. “If that inquiry shows that defendant’s conduct, in point of fact, was not a factor in causing plaintiffs damage, that ends the matter. But if it shows his conduct was a factor in causing plaintiffs damage, then the further question is whether his conduct played such a part in causing the damage as makes him in the eye of the law the author of such damage and liable therefor.” Carney v. Goodman, 38 Tenn.App. 55, 61, 270 S.W.2d 572, 575 (1954).

Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217, 220 (1965).

It is well settled in Tennessee that “proof of negligence without proof of causation is nothing.” German v. Nichopoulos, 577 S.W.2d 197, 203 (Tenn.Ct.App.1978); Drewry v. County of Obion, 619 S.W.2d 397, 398 (Tenn.Ct.App.1981). The controlling issue in this case, therefore, is whether or not evidence exists in the record sufficient to support the proposition that the alleged defect in the helmet in fact caused injuries to Mr. Mosley. Since this case was tried without the intervention of the jury, our review is de novo upon the record with a presumption of correctness as to the trial court’s factual determinations unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). Our de novo review is also subject to the well established principle that the trial court is in the best position to assess the credibility of the witnesses and accordingly such determinations are entitled to great weight on appeal. Vantage Technology LLC v. Cross, 17 S.W.3d 637, 644 (Tenn.Ct.App.1999).

The testimonial record in this case presents little need for deference to the trial court on questions of credibility. The evidence is practically undisputed. Mr. Mosley was an outstanding motor-cycle officer and his credibility is not subject to serious doubt. He suffered serious injuries in the line of duty and has been forced to give up his career as a police officer and accept disability benefits. He tries his best to cope with his injuries and lead as productive a life as is possible for him, but the personal devastation to him and his family is obvious and permanent. The motorcycle officers serving with him at the time of the accident, including Officers Reed, Keeler, and DeBord, are supportive of Mr. Mosley and very credible.

The difficulty with the case for Plaintiff is that all of the testimony presented by his witnesses concentrates on an assertion that the separation of the helmet from the styrofoam liner that was experienced by Officer Reed in the summer of 1996 made this particular helmet defective and created. a “safety issue.” The insistence of Plaintiff and his witnesses is that because of this “safety issue” as to this particular helmet, Metro should have taken the helmet out of service and that if Metro had done so Mr. Mosley would not have been injured in the manner that he was. This quantum leap as to cause in fact simply cannot be made.

Officer Keeler describes the single incident in evidence whereby the separation between the helmet and the styrofoam liner occurred. Officer Reed was riding beside him in formation one day in the summer of 1996, traveling westbound on Interstate Highway 24 in Davidson County, and traveling about 65 miles per hour. He looked at Officer Reed and saw that apparently the wind deflected from the windshield of Officer Reed’s motorcycle was blowing into his face and head and had effected a separation between the styrofoam liner and the plastic helmet. The result he observed was that the helmet had been pushed back on the head of Officer Reed exposing the front part of the styrofoam liner. This is the only incident in the record of any actual separation between the helmet and the styro-foam liner, and no other defect is asserted by Plaintiff.

Mr. Mosley, who inherited this particular helmet from Officer Reed, testified that he knew nothing of the 1-24 incident until Officer Keeler notified him of it some time before this accident. In his own experience with the helmet Mr. Mosley never encountered such a separation and was always careful in keeping his chin strap fastened tightly enough to keep the helmet snug on his head. The chin strap is attached to the plastic helmet which fits over the styrofoam liner. Officer Reed testified that, after the summer of 1996 Interstate 24 incident, he simply tightened his chin strap and had no further difficulty with the helmet.

There is no testimony in the record that the styrofoam liner separated from the plastic helmet, either at the time Mr. Mosley collided with Keeler’s motorcycle or when his helmeted head struck the pavement for the first time. Upon this impact with the pavement the helmet was simply jerked off of his head thus exposing his bare head to the second impact. When the helmet was retrieved the styrofoam liner was not separated from the helmet.

Cause in fact is a part of the plaintiffs burden of proof. “Thus, no negligence claim can succeed unless the plaintiff can first prove that the defendant’s conduct was the cause in fact of the plaintiffs loss.” Waste Management v. South Central Bell, 15 S.W.3d at 430. For Plaintiff to succeed the court would have to assume based upon a single separation of the styrofoam liner and the plastic helmet, which occurred at a time months before the accident in issue when the motorcycle was being operated at 65 miles per hour, that such a separation happened during the accident in issue at a time when the motorcycle was being operated at a speed of 17 miles per hour and to further assume that such separation is what caused the first impact with the pavement to jerk the helmet from Plaintiffs head. In the absence of any proof this assumption simply cannot be made by the trier of fact. Even if such separation occurred between the helmet and the styrofoam liner how could it have caused the helmet to separate from the head of Mr. Mosley since the chin strap that holds the helmet in place is anchored to both sides of the plastic helmet itself?

The only expert testimony in the record is that of Metro’s expert Halstead who testified that a slight looseness of the helmet liner would have no effect as relates to the helmet staying on Mr. Mosley’s head. He further concluded from his examination of the helmet there were only two ways that the helmet could have come off Mr. Mosley’s head in the accident: the first being that the helmet may be too large and the second being that the chin strap was not cinched tightly enough. He then rules out the helmet being too large since Mr. Mosley’s head size was size 7 which fits snugly into this HJC medium helmet which is designed for sizes 7 to 7 1/4. There is neither allegation nor proof in the record that the chin strap was somehow defective. Actionable negligence cannot be inferred from .the mere fact of the occurrence of injury alone. Williams v. Jordan, 208 Tenn. 456, 346 S.W.2d 583, 586 (1961); LaRue v. 1817 Lake, Inc., 966 S.W.2d 423, 428 (Tenn.Ct.App.1997).

There is no question in this case that the accident happened in the manner established by the undisputed proof. It is likewise unquestionable that the helmet in issue had in the past separated from its’ styrofoam liner and that Metro had notice of this condition. It is clear that Metro did not remove the helmet from service after notice of the condition. The case for Plaintiff fails in that Plaintiff presents no proof of causation in fact between the helmet-liner separation in the summer of 1996 and the injury Plaintiff suffered on March 29, 1997. We need not reach the comparative fault issue under these circumstances, but jt is well to note that Mr. Mosley .was just as familiar with the alleged, defect in the helmet at the time of the accident as was Metro and did not choose , to avail himself of the 3/4 helmet.

It is not a pleasant task to reverse this case wherein a capable and competent police officer has suffered severe injuries in performance of his duties. However, he ■voluntarily dismissed his case against the manufacturer and distributor of the helmet and went to trial against Metro alone. He presents no evidence of cause in fact between the alleged defect in the helmet and the injuries he suffered. On this basis we must reverse the judgment of the trial court and dismiss this case.

Costs of the cause are assessed to Appellant.


text:
    Ronnie Gale MARTIN v. Deborah Elaine Kent MARTIN.
    Court of Appeals of Tennessee, at Jackson.
    April 22, 2004 Session.
    July 14, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 29, 2004.

      J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Ronnie Gale Martin.
    Julie D. Byrd, Bartlett, Tennessee, for the appellee, Deborah Elaine Kent Martin.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

Husband filed present divorce action against Wife alleging irreconcilable differences and inappropriate marital conduct. Wife answered denying the inappropriate marital conduct and subsequently counter-complained for divorce alleging adultery. Wife amended her counter-complaint to request a legal separation or in the alternative an absolute divorce. The trial court granted Wife an absolute divorce based upon its finding of Husband’s inappropriate marital conduct. The trial court awarded Wife alimony by requiring Husband to pay for Wife’s health insurance for three years and, thereafter, pay Wife $50.00 a month. The trial court ordered a property division and required Husband to pay Wife’s attorney’s fees. We affirm the award of divorce, distribution of marital property and debt, and award of attorney’s fees. We affirm the award of alimony in the amount of $50.00 a month but vacate the award of health insurance and remand for further proceedings consistent with this opinion.

Ronnie Martin, age 53 at the time of trial (Husband), and Deborah Martin, 51 (Wife), were married for thirty years. Husband attended a junior college for two years. Wife completed the eleventh grade. The parties have one son together and Husband adopted Wife’s son. The parties’ children were both adults by the time of trial. After the parties married, Husband worked for DuPont for twenty-five years, retiring in 2001 due to depression. He was subsequently placed on social security disability. Fourteen years into the parties’ marriage, 1986, Husband started a business of building and selling residential and commercial real estate. During the marriage, the parties owned and sold between 150 and 200 residential dwellings. At the time of trial, the parties owned 33 pieces of property and were indebted to numerous lenders. Wife worked in Husband’s business until their second child was born.

In July of 2001, Husband filed for divorce and a property division, alleging irreconcilable differences and that Wife was guilty of inappropriate marital conduct. Wife answered, denying the inappropriate marital conduct, and subsequently filed a counter-complaint for divorce and property division, alleging irreconcilable differences, inappropriate marital conduct, and adultery. Wife filed an amended counter-complaint seeking a legal separation or, in the alternative, an absolute divorce. Trial occurred on February 20 and 21, 2003. In May of 2003, the trial court entered a final decree of divorce, granting Wife an absolute divorce based upon Husband’s inappropriate marital conduct. As alimony, the trial court ordered Husband to pay Wife’s medical insurance premiums for three years and thereafter, fifty dollars a month. The trial court found Husband’s testimony as to the amount of money Husband spent during the separation less than credible and awarded Wife her attorney’s fees based upon their being incurred due to Husband’s lack of candor. The trial court also ordered a distribution of the marital property and debt. Husband filed a motion to alter or amend which was denied by the trial court. Husband timely filed his notice of appeal.

Issues Presented

Husband raises the following issues, as restated, for our review:

1. Whether the trial court erred in granting Wife an absolute divorce.
2. Whether the trial court erred in its award of alimony to Wife.
3. Whether the trial court erred in its division of marital property and debt.
4. Whether the trial court erred in requiring Husband to pay Wife’s attorney’s fees.

Standard of Review

“The amount of alimony to be allowed in any case is a matter for the discretion of the trial court in view of the particular circumstances, for the appellate courts are disinclined to review such discretion except in cases where it has manifestly been abused.” Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn.Ct.App.1989) (citing Ingram v. Ingram, 721 S.W.2d 262 (Tenn.Ct.App.1986)). “This Court customarily gives great weight to decisions of the trial court in dividing marital estates and we are disinclined to disturb the trial court’s decision unless the distribution lacks proper evidentiary support or results from some error of law or misapplication of statutory requirements and procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn.Ct.App.1996) (citing Wade v. Wade, 897 S.W.2d 702, 715 (Tenn.Ct.App.1994)). The trial court’s award of attorney’s fees “to a party in a divorce proceeding is within the sound discretion of the trial court and will not be disturbed upon appeal unless the evidence preponderates against such a decision.” Storey v. Storey, 835 S.W.2d 593, 597 (Tenn.Ct.App.1992) (citing Batson v. Batson, 769 S.W.2d 849, 862 (Tenn.Ct.App.1988)).

Award of Divorce

Husband contends that the trial court erred in awarding Wife an absolute divorce rather than a legal separation. Husband bases his argument on the fact that, had Wife been granted a legal separation, she would remain covered under Husband’s current health insurance whereas an award of absolute divorce would require Husband to pay the COBRA premiums for Wife’s health insurance.

In determining whether an absolute divorce or legal separation should be awarded, “[t]he court, of course, gravely considers the desires of the party wronged, but the court reserves the right to determine for itself what is best for that party.” Lingner v. Lingner, 165 Tenn. 525, 56 S.W.2d 749, 752 (1933). In reviewing the court’s award, “[t]his Court will not interfere with the exercise of that discretion by the trial court unless it was abused.” Bennett v. Bennett, 40 Tenn.App. 416, 292 S.W.2d 202, 205 (1954). In this case, the trial court considered the best interests of the parties and concluded that “it is in the best interest of the parties to be divorced and to have as few ties as possible with each other.” In support of its conclusion, the trial court stated that it “doubt[ed] some of the credibility of [Husband] as to what he said about the girlfriends and especially the trip to Maui ... [and] I do think that [Husband] did have a woman on the boat on the weekend of the separation.” Further, in all of Husband’s pleadings, he requested an award of absolute divorce and denied Wife’s request for legal separation. Accordingly, we cannot find that the trial court abused its discretion in awarding Wife an absolute divorce.

Alimony

Tennessee Code Annotated § 36-5-101(d) (2001) governs spousal support awards and provides:

(d)(1) ... In determining whether the granting of an order for payment of support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including:
(A) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
(B) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
(G) The separate assets of each party, both real and personal, tangible and intangible;
(H) The provisions made with regard to the marital property as defined in § 36-4-121;
(I) The standard of living of the parties established during the marriage;
(J) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
(K) The relative fault of the parties in eases where the court, in its discretion, deems it appropriate to do so; and
(L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Tenn.Code Ann. § 36-5-101(d)(l) (2001). Further, “[t]he two most important factors in the award of alimony are [the obligee’s] need and [the obligor’s] ability to pay.” Elliot v. Elliot, 825 S.W.2d 87, 91 (Tenn.Ct.App.1991) (citing Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn.Ct.App.1984)).

Husband first argues that it was error for the trial court to require Husband to pay Wife’s health insurance for three years because there was no proof offered as to the amount of the premiums or his ability to pay those premiums. On this issue, the trial court stated:

For three years, the [H]usband will pay the [W]ife’s medical insurance premium as alimony.... I also want to protect her because I am concerned about her health, and as far as her health goes, I think — I’m more concerned about [Wife’s] health and her abilities to do anything. I think her ability to work is much less than [Husband’s], and [Husband’s] is much greater. He’s been driving stoekcars, of all things, and I just think that shows he has some ability, more than the [W]ife, and he’s been collecting rents, and that shows that he has some ability to do that.

While Husband was required to pay temporary alimony and Wife requested an alimony award at trial, Wife never requested an award of health insurance. As a result, there was no proof offered as to whether Wife, in her condition, could be insured and if so, the cost of the premiums and whether the Husband has the ability to pay those premiums. ‘We believe that fairness dictates that this cause be remanded to the trial court for the parties to present evidence on the limited issue” of Wife’s health insurance. Cain v. Cain, W2003-00563-COA-R3-CV, 2004 WL 404489, at *5 (Tenn.Ct.App. Mar.3, 2004)(no perm. app. filed). Accordingly, we vacate the award of health insurance and remand to determine whether Wife can be insured, and if so, the cost of the premiums and. whether the Husband has the ability to pay those premiums.

Husband also contends that the trial court erred in awarding Wife alimony in futuro in the amount of $50.00 a month, following the three years in which he was required to pay Wife’s health insurance. Husband argues that such an award was not appropriate because Wife never requested an award of alimony. While Wife made no request for alimony in her counter-complaint or amended counter-complaint, she requested an award in her opening statement at trial without objection from Husband. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Tenn. R. Civ. P. 15.02. Further, the trial court found that based upon Husband’s ability to drive race cars and take several vacations, he had the ability to pay alimony in futuro in the amount of $50.00 a month. After reviewing the record, the evidence does not preponderate against the alimony in futuro award.

Distribution of Marital Property and Debt

The trial court made the following Property and Debt distribution:

In arriving at a division of the property (each party receiving ⅜ interest in all the real estate) and payment to each party, the Court believes that the real property should not have to be sold, and that the portion of the debts owed by [Wife] should be subtracted from the value of the property awarded to her, and Husband should pay Wife cash for her share therein within sixty (60) days of March 7, 2003; that upon receipt of full payment of her property interest, Wife should quit claim her interest in the real estate to the Husband; there should not be any installment payments because of the problems these parties have had in getting this paid, [Husband] can get access to the cash, and Wife can use the money to get her a house;
The Court feels as if the real property should not be sold for several reasons, to-wit: (a) the parties are both under the age of 55 years, and the income taxes due from the sale would be astronomical and the real property has depreciation on it; (b) if you put all this rental real estate on the market, the market in this area would be flooded and you wouldn’t be able to get what the property was worth; and (c) Wife would not be able to collect rent, but that Husband is able to collect the rent:
The Husband should be responsible for payment of his credit card, the MBNA; Husband should be responsible for repaying his SSI that may or may not have to be repaid, the Husband’s Internal Revenue Service quarterly taxes for 2003, and all property taxes on the real estate for 2003.

Husband first contends that the trial court erred in requiring him to pay Wife, in cash, her interest in the real estate. Husband argues that his present financial situation will not allow him to obtain the financing needed to pay Wife. Husband relies upon letters filed with the trial court as evidence of his inability to finance. While four of those letters provide that certain banks will no longer extend Husband credit, one letter provides:

[Husband] has requested a loan from our bank in the amount of $550,000.00. This loan is to be secured by rental real estate. The $550,000.00 loan has been approved conditioned upon the properties appraising for a minimum of $846,200.00 as we only loan 65% of the value of these type properties.
This loan would be secured by nine rental houses in Colonial Heights Subdivision in Munford and one rental house in Victory Estates in Munford.

While there is uncertainty as to the appraisal amount of these particular homes, this letter provides evidence of Husband’s ability to refinance some of the rental property enabling him to pay Wife’s share. Further, in response to Husband’s argument raised in his Motion to Alter or Amend, the trial court provided Husband with the following option:

The Husband states that he has been unable to obtain financing to pay the Wife in cash, and has asked that the property be sold. The Court points out that the Husband will owe the Wife $670,550.72, which includes the net value of the property,½ of the Husband’s retirement, and attorney fees to be paid to the Wife. The parties have a residence in Arkansas, which is worth $358,000.00, and upon which there is no mortgage. The parties also own two other pieces of real estate ... upon which there is no mortgage. These three properties can be sold and the proceeds given to the Wife.... The Husband has personal property which can be sold and the proceeds given to the Wife. The Court sees no reason to order structured payment of the money which the Husband owes to the Wife or to order all the real property sold. The Court is concerned that, if all property is sold, the tax consequences would be such that the parties would not reap the full value of their property.

Accordingly, we find that the trial court did not err in finding that Husband has sufficient resources from which he could pay Wife’s interest in the real estate.

Husband next contends that the trial court erred in requiring Husband to pay the following debt: the MBNA credit card debt; the IRS quarterly taxes for 2003; the real property taxes for 2003; and repayment of the $45,000 that Husband received as Social Security Income. “Mondelli adopted the following factors to be used for dividing marital debt between the divorcing spouses: (1) the debt’s purpose; (2) which party incurred the debt; (3) which party benefited from incurring the debt; and (4) which party is best able to repay the debt.” Alford v. Alford, 120 S.W.3d 810, 812-13 (Tenn.2003) (citing Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn.Ct.App.1989)).

On the issue of the MBNA credit card, the trial court found that Husband incurred most of the debt during the separation. After reviewing the record and applying factors (2) and (3), we cannot find that the evidence preponderates against such an award. On the issue of the IRS quarterly taxes, the trial court found that “I think her ability to work is much less than [Husband’s], and [Husband’s] is much greater.” Based upon factor (4) and nothing in the record to indicate to the contrary, we cannot find that the evidence preponderates against such an award. On the issue of the real property taxes, the trial court required Husband to pay the taxes because after Husband buys Wife’s interest in the real estate, he will be the sole owner of all the realty. In accordance with factor (1), we cannot find that the evidence preponderates against such an award. On the issue of repaying the income received from Social Security, the trial court found that, at the time of trial, it was not certain whether this debt would have to be repaid. As a speculative debt that would be assessed by the Social Security Administration against Husband for his income, we do not find that the evidence preponderates against such an award.

Lastly, Husband contends that the trial court erred in requiring him to pay Wife one-half of his retirement. On this issue, the trial court found that Husband spent his entire retirement during the separation. Husband even testified that he cashed the check from his retirement at a casino and lost $10,000 of it gambling. We do not find that the evidence preponderates against such an award.

Attorney’s Fees

Husband contends that it was error for the trial court to award Wife $15,000 in attorney’s fees when he does not have sufficient funds from which he can pay and Wife has sufficient assets from which she can pay her attorney’s fees. We determine the propriety of the trial court’s award of attorney’s fees in accordance with the following principles:

Trial courts are permitted to make additional awards to defray the legal expenses resulting from a divorce proceeding. Palmer v. Palmer, 562 S.W.2d 833, 838-39 (Tenn.Ct.App.1977). These decisions, like those involving support and maintenance, are within the trial court’s discretion. Fox v. Fox, 657 S.W.2d 747, 749 (Tenn.1983); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn.Ct.App.1983). This Court is not inclined to second-guess the trial court unless the evidence preponderates against its decision.

Batson v. Batson, 769 S.W.2d 849, 862 (Tenn.Ct.App.1988) In this case, the trial court stated the following:

Husband’s testimony was less than credible in many aspects, including the amount of money to which he had access during the separation, the amount of money that he spent during the separation, and the items which he purchased during the separation. A large portion of the attorney fees were incurred because of the lack of candor and honesty on the part of the Husband.

After reviewing the record, we cannot find that the evidence preponderates against the trial court’s award of attorney’s fees.

Conclusion

In light of the foregoing, we affirm the trial court’s award of absolute divorce to Wife, the award of alimony in futuro in the amount of $50.00 a month, distribution of marital property and debt, and award of Wife’s attorney’s fees. We vacate the award of alimony requiring Husband to pay Wife’s health insurance premiums and remand for proceedings consistent with this opinion. Costs of this appeal are taxed equally to the Appellee, Deborah Elaine Kent Martin, and Appellant, Ronnie Gale Martin, and his surety, for which execution may issue if necessary.

      . Sections 36 — 5—101(d)(1) and (e) were amended in 2003 but are inapplicable to this case as it was tried before the effective date, June 17, 2003, of the amendment. Tenn. Code Ann. § 36-5-101 (2003) (amendments).

      . Based upon a 2001 appraisal, these particular houses appraised at just under the bank’s requested amount. However, a more recent assessment might appraise the houses at or above the requested amount.

      . As will be discussed infra, the trial court valued Husband’s cash obligation to Wife at $670,550.72. This amount includes the net value of the property, one-half of Husband’s retirement, and attorney’s fees. While the $550,000 loan would not satisfy the obligation, the trial court found other assets, such as a $70,000 note receivable and other unencumbered properties, that could be liquidated to satisfy the obligation.