michelle-lynn-durham-and-husband-robert-wayne-durham-v-luther-well-an ( 1996 )


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  •                    IN THE COURT OF APPEALS OF TENNESSEE
    WESTERN SECTION AT JACKSON
    FILED
    _____________________________________________________________________________
    MICHELLE LYNN DURHAM and               Gibson Circuit No. 7089 June 3, 1996
    husband ROBERT WAYNE DURHAM,                C.A. No. 02A01-9502-CV-00033
    Cecil Crowson, Jr.
    Plaintiffs/Appellants,                Hon. Dick Jerman, Jr., JudgeClerk
    Appellate C ourt
    v.
    FILED
    LUTHER WEBB and wife, SUE WEBB,
    individually and d/b/a WEBB’S BRITISH                            June 3, 1996
    PETROLEUM STATION and W. PAUL ARNOLD,
    individually and d/b/a ARNOLD CONSTRUCTION                   Cecil Crowson, Jr.
    Appellate C ourt Clerk
    COMPANY,
    Defendants/Appellees.
    TIMOTHY L. WARNOCK and JOHN B. ENKEMA, Bass, Berry & Sims, Nashville,
    Attorneys for Plaintiffs/Appellants.
    FLOYD S. FLIPPIN, Adams, Ryal & Flippin, Humboldt
    Attorney for Defendants/Appellees Luther Webb and wife, Sue Webb,
    individually and d/b/a Webb’s British Petroleum Station.
    AFFIRMED
    Opinion Filed:
    _____________________________________________________________________________
    TOMLIN, Sr. J.
    Michelle Lynn Durham and Robert Wayne Durham (“plaintiffs” or by name)1
    brought this suit in the Circuit Court of Gibson, County against Luther Webb and
    wife Sue Webb, individually and d/b/a Webb’s British Petroleum Station
    (“defendants”),2 seeking damages for defendant’s alleged negligence that
    caused plaintiff Michelle Durham to fall in defendant’s parking lot, causing injuries.
    The trial court granted defendant’s motion for summary judgment, from which this
    appeal is taken. The sole issue presented is whether the trial court erred in granting
    defendant’s motion for summary judgment. We find no error and affirm.
    1
    Michelle Lynn Durham was the party who fell and was injured. Robert
    Wayne Durham’s claim for loss of consortium is derivative of hers.
    2
    Defendant W. Paul Arnold, individually and d/b/a Arnold Construction
    Company, was dismissed from the case with prejudice.
    1
    On the day of the accident in question, plaintiff stopped at defendant’s gas
    station in Trenton on her way to a doctor’s appointment. Prior to plaintiff’s arrival
    in defendant’s parking lot, it had been raining for a short while. There was
    testimony that it had either stopped raining or was raining only slightly at the time
    of plaintiff’s arrival. After parking in front of the door to defendants’ convenience
    store, plaintiff entered for the purpose of buying a carton of milk. After making the
    purchase, she exited the store and walked down the sidewalk to the pay phone
    to call her husband. On her way back to the car, she stepped off the sidewalk
    onto the parking lot and slipped and broke her leg and ankle. This suit followed.
    Plaintiff’s complaint charged defendants with negligence for failure to
    exercise reasonable care in maintaining the entrance and parking area of their
    place of business.    Specifically, plaintiffs contend that defendants failed to
    properly clean the parking lot of oil buildup, alleging that the oil had accumulated
    in areas where cars normally parked, creating a dangerous, slippery condition.
    As grounds for its summary judgment, defendants contended that they could not
    be held liable inasmuch as they had no actual or constructive notice of a
    dangerous or defective condition in the parking lot prior to the accident.
    Defendants filed depositions of plaintiffs, defendants, and three employees of
    defendants in connection with the summary judgment motion. Plaintiffs filed the
    affidavit of Faye King, a frequent customer of defendants, in response to
    defendants’ motion.
    Following the hearing on the summary judgment motion, the trial court
    entered an order, which read in pertinent part as follows:
    Plaintiffs should be given sixty (60) days from September 7, 1994, to file
    an Affidavit from an expert witness to the effect that the parking lot
    area where this accident occurred on January 13, 1992 was in an
    2
    unreasonable and dangerous condition on the date and time of this
    accident. If said expert Affidavit is filed within sixty (60) days from
    September 7, 1994, the Court will consider the Affidavit and make its
    decision on the Motion for Summary Judgment. If the Affidavit is not
    filed on or before sixty (60) days from September 7, 1994, then said
    Motion for Summary Judgment will be granted. (emphasis added)
    Following the expiration of the sixty (60) day period without plaintiffs having filed
    an affidavit of an expert addressing the alleged unreasonable and dangerous
    condition of the property at the time of the accident, the trial court entered an
    order granting defendants’ summary judgment motion.
    Before addressing the summary judgment issue itself, we must deal with a
    secondary issue raised by plaintiffs, who contend that the above-quoted
    language establishes that the trial court required them to produce an expert
    witness to testify that the combination of oil and water in the parking lot created
    a dangerous condition. Plaintiffs further contend that expert testimony was not
    required on this subject in this state because such information is within the
    knowledge of ordinary people. Plaintiffs also contend that the trial court was in
    error in ruling that the affidavit of Faye King, which plaintiffs submitted in response
    to defendants’ motion for summary judgment, was not an expert witness on the
    subject.
    Defendants contend that plaintiffs’ characterization of this portion of the trial
    court’s order is in error, and that the thrust of the trial court’s ruling was to provide
    plaintiffs with additional time (sixty (60) days) to attempt to carry their burden of
    proof as to the existence of a dangerous or defective condition in defendants’
    parking lot on the day of the accident, and that if such a condition existed, to
    establish that defendants’ had actual or constructive notice of that condition. It
    is defendants’ characterization of this order that if plaintiffs did not avail themselves
    of this additional time to present such an expert, the court would grant summary
    3
    judgment to defendants. We agree with defendants’ characterization of this
    order. Although the trial court used the term “expert witness,” we are of the
    opinion that the purpose of the order was to give plaintiffs an additional sixty (60)
    days to offer proof as to the existence of a dangerous condition on defendants’
    parking lot at the time of this occurrence. Plaintiffs’ contention is without merit,
    which leaves us with the responsibility of considering the correctness of the trial
    court’s granting of summary judgment to defendants.
    No presumption of correctness attaches to decisions granting summary
    judgments because they involve only questions of law. Thus, on appeal, we must
    make a fresh determination concerning whether or not requirements of T.R.C.P. 56
    have been met. Cowden v. Sovran Bank/Central South, 
    816 S.W.2d 741
    , 744 (Tenn.
    1991).
    It is appropriate for a trial court to grant summary judgment where (1) there
    is no genuine issue as to any material fact, and (2) the moving party is entitled to
    judgment as a matter of law. Byrd v. Hall, 
    847 S.W.2d 208
    , 210 (Tenn. 1993). The
    moving party bears the burden of demonstrating that no genuine issue of material
    of fact exists. Id. at 210. In Byrd, the court stated:
    Once it is shown by the moving party that there is no genuine issue of
    material fact, the nonmoving party must then demonstrate, by
    affidavits or discovery materials, that there is a genuine, material fact
    dispute to warrant a trial. In this regard, Rule 56.05 provides that the
    nonmoving party cannot simply rely upon his pleadings but must set
    forth specific facts showing that there is a genuine issue of material
    fact for trial. ‘If he does not so respond, summary judgment . . . shall
    be entered against him.’
    Id. at 211 (citations omitted).
    A party may also move for summary judgment demonstrating that the
    4
    opposing party will not be able to produce sufficient evidence at trial to withstand
    a motion for directed verdict. If, after a sufficient time for discovery has elapsed,
    the nonmoving party is unable to demonstrate that he or she can indeed do so,
    summary judgment is appropriate. Id. at 213 (citing Celotex Corp. v. Catrett, 
    106 S. Ct. 2548
    , 2552 (1986)).
    In taking our fresh look at the record to determine whether the evidence
    supports the action of the trial court, we must view the evidence in the light most
    favorable to the nonmoving party and must also draw all reasonable inferences
    in the nonmoving party’s favor. Byrd, 847 S.W.2d at 210-11.
    Under the law of this state, the owner or operator of a place of business
    owes customers a duty
    to exercise reasonable care to keep the premises in a reasonably
    safe and suitable condition, including the duty of removing or
    warning against a dangerous condition traceable to persons for
    whom the proprietor is not responsible . . . . if the circumstances of
    time and place are such that by the exercise of reasonable care the
    proprietor should have become aware of such condition.
    Simmons v. Sears Roebuck & Co., 
    713 S.W.2d 640
    , 641 (Tenn. 1986).
    Although a proprietor must maintain the premises of his store in a reasonable
    and safe condition, he is not an insurer of a customer’s safety. Before an owner
    or operator of premises can be held liable for negligence in allowing a dangerous
    or defective condition to exist, it must be shown that the condition (1) has been
    created by the owner, operator or his agent or, (2) if the condition was created by
    someone other than the owner or operator or his agent, there must be actual or
    constructive notice on the part of the owner or operator that the condition existed
    prior to the accident. Jones v. Zayre, Inc. 
    600 S.W.2d 730
    , 732 (Tenn. App. 1980).
    5
    If liability is to be predicated on constructive knowledge by a defendant, the proof
    must show the dangerous or defective condition existed for such a length of time
    that the defendant knew, or in the exercise of ordinary care should have known,
    of its existence. Id.
    In reviewing this record, we find that plaintiffs were unable to establish that
    plaintiff Michelle Durham actually fell on an oil spot in the parking lot. Plaintiff testified
    in her deposition that at the time she fell, she never saw an oil spot. She testified that she
    and her husband saw oil in the parking lot when they came back to inspect the lot a week
    after the accident.
    In addition, two employees of defendants both testified in their depositions that
    they were unaware of an oil spill in the parking lot at the time of the accident. Dorothy
    Slaughter, who was responsible for sweeping the parking lot, stated that she had just
    finished sweeping the parking lot prior to plaintiff’s fall. Slaughter testified that there was
    no oil on the parking lot at that time. Slaughter testified that when she does find oil on
    the pavement, she applies an absorbent material on the spot to clean it up. Melinda
    Turner, who had worked as a cashier for defendant for six years, testified that she had
    never noticed a build up of oil on the parking lot.
    The only evidence plaintiffs submitted in response to defendants’ motion for
    summary judgment was the affidavit of Faye King, a frequent customer of defendants’
    store.    King stated that she had observed oil spots in defendants’ parking lot on
    undisclosed prior occasions. However, K ing’s affidavit fails to comply with T.R.C.P.
    56.05, which requires that the affiant state that her testimony is based on personal
    knowledge. T.R.C.P. 56.05. Moreover, King’s affidavit does not create a genuine issue
    of material fact concerning defendants’ actual or constructive knowledge of the oil spot
    at the location where plaintiff fell at the time of the accident.
    From reading this record in its entirety, we are of the opinion that there is no
    6
    genuine issue of material fact as to whether there was oil on the pavement on the date and
    time of the accident, and in the location where plaintiff fell. Even if plaintiffs could have
    established the existence of an oil spot, there is no proof in the record creating a genuine
    issue of material fact as to how long the spot might have been there so as to charge
    defendants with constructive notice of an oil spot in the location of plaintiff’s fall.
    Plaintiffs’ proof does not measure up to the standards applicable to her as a nonmoving
    party based on the facts defendants presented in support of their motion for sum mary
    judgment.
    The judgment of the trial court is in all respects affirmed. Costs in this cause on
    appeal are taxed to plaintiffs, for which execution may issue if necessary.
    ______________________________________
    TOMLIN, Sr. J.
    ______________________________________
    CRAWFORD, P.J.
    ______________________________________
    LILLARD, J.
    7
    

Document Info

Docket Number: 02A01-9502-CV-00033

Judges: Senior Judge Hewitt P. Tomlin

Filed Date: 6/3/1996

Precedential Status: Precedential

Modified Date: 2/1/2016