The Estate of Blake B. Cunningham, by and through Barbara Cunningham v. Epstein Enterprises, LLC - CONCUR ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 16, 2016 Session
THE ESTATE OF BLAKE B. CUNNINGHAM, BY AND THROUGH BARBARA
CUNNINGHAM v. EPSTEIN ENTERPRISES LLC, ET AL.
Appeal from the Circuit Court for Shelby County
No. CT00373413 Rhynette N. Hurd, Judge
________________________________
No. W2015-00498-COA-R3-CV – Filed June 30, 2016
_________________________________
J. STEVEN STAFFORD, P.J.,W.S., concurring in result only.
I concur in the result reached by the majority Opinion with regard to whether the
Epstein Entities owed a duty to Mr. Cunningham, but I write separately to address a concern
with how the majority reaches this conclusion. I also concur with the majority Opinion‘s
holding that the Service Agreement cannot be relied upon by Ms. Cunningham in this case,
albeit for a different reason. Thus, I respectfully file this concurrence and will address each
of my concerns in turn.
A. Independent Contractor Exception
At the outset, I agree that Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996) is
controlling law and that it has not been overturned, abrogated, or reversed by our Tennessee
Supreme Court. The Supreme Court cited Blair as recently as 2007, noting its ongoing
viability. See Bennett v. Trevecca Nazarene Univ., 216 S.W.2d 293 (Tenn. 2007).
Furthermore, the parties in this case do not suggest that Blair is no longer valid law. Thus, by
all accounts, Blair and its approach to the independent contractor exception remains the
controlling law in Tennessee.
I also agree with the majority‘s conclusion that the independent contractor exception is
not limited to cases involving repairs and, instead, may be extended to cases involving
security guards. Although the issue of whether Blair could apply to security guard cases was
vehemently disputed by the parties, the majority Opinion does not offer the parties to this
litigation any rationale for its decision to extend the independent contractor exception beyond
the previously recognized sphere of repair cases. Consequently, I file this separate opinion, in
part, to provide the parties with a rationale for our holding that is lacking from the majority
Opinion. Nothing in Blair indicates that the independent contractor exception is limited to
repair cases. Indeed, the Blair Court explained that to ―hold otherwise would require the
untutored owner‖ to have superior knowledge to the independent contractor, in an area where
the independent contractor claimed to be knowledgeable. A similar exception has been found
to apply to security guards injured in the line of duty in other jurisdictions. See Hunley v.
DuPont Auto, 341 F.3d 491, 503 (6th Cir. 2003) (―[The plaintiff security guard] cannot []
recoup damages for harm that was allegedly caused by performing the basic duty that he was
hired to perform: encountering a stressful situation relating to the [defendant‘s] security.‖);
Atlanta Braves v. Leslie, 378 S.E.2d 133 (Ga. Ct. App. 1989) (―Leslie, by accepting
employment as [a] security guard, assumed the risk that he would have such encounters on
the stadium premises. Leslie was, in effect, hired to provide an element of the very security
that he alleges was negligently lacking.‖); Echazabal v. El Toro Meat Packing Corp., 506
So. 2d 1100, 1101 (Fla. Dist. Ct. App. 1987) (―[T]he employee of an independent contractor
cannot maintain a cause of action against a property owner where, as here, the precise duty
for which he was employed (guarding the premises) resulted in his injury.‖) (citing McCarty
v. Dade Div. of Amer. Hosp. Supply, 360 So. 2d 436 (Fla. Dist. Ct. App. 1978)). My research
does not reveal any cases in which courts outside this jurisdiction have limited the
independent contractor exception only to repair/construction cases. Thus, like our sister
courts, I likewise conclude that this exception may apply not only in the context of
repair/construction injuries, but also with regard to injuries sustained while performing work
as a security guard, depending on the specific circumstances at issue.
Most importantly, the majority opinion, as it so eloquently states, ―leaves [me] to
wonder‖ if my colleagues are holding that the situation in this case falls within the exception
outlined in Blair. The majority concludes that ―the independent contractor exception can be
extended to security guards,‖ but does not endeavor to explain whether it is indeed applying
the exception to the case-at-bar. Although this issue was thoroughly briefed, the dispositive
question of this appeal—whether the independent contractor exception applies to bar Ms.
Cunningham‘s claim—is neither definitively answered nor analyzed by the majority Opinion.
Accordingly, I will endeavor to provide the parties with some rationale for my
decision to apply the independent contractor exception to the facts of this case. To support
my conclusion that the independent contractor exception applies, I note the following
undisputed facts: (1) Mr. Cunningham was a licensed security guard trained to deal with
confrontations with criminal actors; (2) at all times relevant to this case, Mr. Cunningham
was classified as an independent contractor; (3) Mr. Cunningham was hired to supply armed
security services on the Epstein Entities‘ premises; and (4) Mr. Cunningham was fatally shot
by a third-party criminal actor while providing armed security on the Epstein Entities‘
premises.
-2-
Here, there can be no dispute that Mr. Cunningham was on notice that the job he was
hired to perform was inherently dangerous. This Court has previously held that employment
is inherently dangerous where ―the danger must be involved in the performance of the
contract and must result directly from the work to be done and not from the collateral
negligence of the contractor.‖ Marshalls of Nashville, Tennessee, Inc. v. Harding Mall
Assocs., Ltd., 799 S.W.2d 239, 244 (Tenn. Ct. App. 1990) (involving the employer‘s liability
for injuries to third parties caused by independent contractors, rather than injuries to the
independent contractors themselves). Mr. Cunningham was hired to provide not just basic
security, but armed security. Like the plaintiff in Blair was on notice of a defective roof by
virtue of the obligation he undertook to repair the roof, Mr. Cunningham was similarly on
notice of potential criminal activity as his job necessarily required him to attempt to prevent
and deter such activity. Such risk was implicit in his job‘s purpose, and, by the fact that he
was armed, a confrontation with a potentially dangerous or violent criminal actor was
inherent in his job as a security guard. Ms. Cunningham admitted in her amended complaint
that the subject premises are located ―in a high crime area‖ and that it was ―foreseeable . . .
that criminal attacks could occur due to incidences of crime that ha[d] occurred at the
[premises] and within close proximity[.]‖1 She also stated that security guards are trained in
how to respond to altercations with third parties. Under these circumstances, I must conclude
that in this particular case, Mr. Cunningham was injured due to a danger that ―result[ed]
directly from the work‖ he was hired to perform. Marshalls, 799 S.W.2d at 244.
Furthermore, because of the nature of the work that Mr. Cunningham was hired to perform
and the high rate of crime at the premises as admitted by Ms. Cunningham, ―[t]he possibility
of a face-to-face encounter with a criminal [wa]s an ordinary and obvious risk incident to
[Mr. Cunningham‘s] employment as an armed security guard.‖ Leslie, 378 S.E.2d at 135 (Ga.
Ct. App. 1989). As explained best by the Georgia Court of Appeals:
[T]o place a duty on [the premises owner] to protect an armed
guard from a generalized potential of harm is to engage in
circular reasoning, ―i.e., there is a potential danger so [the
employee is hired as an] armed guard, [the] hiring [of] armed
guards shows a potential danger, thus armed guards or other
protective measures must be taken to protect the first armed
guard from the original potential danger that he was hired to
guard against in the first place.‖
1
While the majority correctly points out that Tennessee Rule of Civil Procedure 56.06 precludes a
party opposing a motion for summary judgment from ―rest[ing] upon the mere allegations‖ in its complaint,
such rule is not applicable in this context. Although I agree that the allegations in Ms. Cunningham‘s amended
complaint cannot be used as evidence against the Epstein Entities, Ms. Cunningham‘s own admissions in her
amended complaint may certainly be used against her.
-3-
Id. (quoting Hewett v. First Nat. Bank of Atlanta, 155 Ga. App. 773, 774, 272 S.E.2d 744,
745 (Ga. Ct. App. 1980)). Thus, based on the foregoing, I would conclude that the
independent contractor exception applies to the case-at-bar. I next address whether any other
theory surrounding the issue of whether the Epstein Entities owed a duty of care remains
viable.
B. Bennett v. Trevecca Nazarene University
The majority next holds that Mr. Cunningham‘s initial agreement to provide security
services in the case-at-bar provides an ―inadequate framework‖ for deciding the issues in this
case, in reliance on Bennett v. Trevecca Nazarene University, 216 S.W.3d 293 (Tenn. 2007).
I write separately, however, because delving into the issue of the voluntarily assumption of a
duty within the context of Bennett is unnecessary in this case due to Ms. Cunningham‘s
waiver of any assumption of duty argument. Additionally, and more concerning, the
majority‘s Opinion provides a specious characterization of the Bennett case. While I agree
that Bennett is helpful in that it evidences the continuing viability of the independent
contractor exception, it contemplates an additional duty of care that is simply not implicated
in this case.
In Bennett, two plaintiff electricians filed suit against the defendant premises owner
after they were injured in a high-voltage electrical explosion while working on the
defendant‘s premises. Id. at 295. The plaintiffs asserted, however, that agents of the
defendant affirmatively told the plaintiffs that the job involved low voltage, and had they
known otherwise, would not have started the job. Id. at 297. The Supreme Court expressly
held that the defendant could not rely upon the independent contractor exception as a shield
to liability. Instead, the Court held that the independent contractor exception does not apply
when ―a premises owner provides an independent contractor inaccurate information germane
to the contractor‘s work.‖ Id. at 298. Stated another way, in Bennett, the Supreme Court did
not apply the independent contractor exception, as suggested by the majority Opinion,
despite the fact that ―the electricians were injured in a high-voltage electrical explosion,‖ but
because the plaintiffs were injured by high voltage electricity, a risk that was not inherent in
the job they agreed to perform. The Bennett opinion demonstrates that affirmative and
allegedly inaccurate representations require consideration beyond the initial agreement to
employ the independent contractor. In Bennett, because both electricians alleged that they
were informed the job would only involve low voltage electricity, high voltage electricity
(the risk that caused their injuries) was not a risk inherent in the job.
The Bennett case is factually distinguishable from the case-at-bar. Most glaringly,
representations similar to those of the Bennett defendant are not at issue in this case. That is,
the Epstein Entities did not affirmatively provide Mr. Cunningham any assurance that the job
he was hired to perform would not involve a risk of criminal activity. While Bennett serves
as the Supreme Court‘s most recent recognition of the viability of the independent contractor
exception, the Bennett Court emphasized the narrowness of its holding, which only applies
-4-
when a party ―fails to exercise reasonable care or competence in obtaining or communicating
[] information‖ to an independent contractor. Indeed, in Bennett, the reason why the
independent contractor exception did not apply to shield the defendant from liability was
because the defendant had made assurances that the job would involve low voltage, a fact
that is not discussed by the majority Opinion. Id. at 300. By making these inaccurate
assurances, the defendant in Bennett assumed a duty of care to the independent contractors
outside of what was described in the parties‘ contract for electrical work. Thus, I am
perplexed by the majority‘s reliance on Bennett as authority in the case-at-bar despite the
obvious differences between the two cases.
In the case-at-bar, Ms. Cunningham has not argued that Epstein Entities ever made
assurances to Mr. Cunningham that his job would not involve criminal activity. Thus, a
confrontation with a criminal actor remained an inherent risk of Mr. Epstein‘s job, much like
the risk of roof collapse to a roofer. As affirmed by the Supreme Court, this Court noted in its
opinion in Bennett that if the facts had been the same as in Blair, it is ―doubtless‖ the
independent contractor exception would apply. Bennett v. Trevecca Nazarene Univ., No.
M2004-01287-COA-R3-CV, 2005 WL 2487979 (Tenn. Oct. 7, 2005), aff’d, 216 S.W.3d 293
(Tenn. 2007). Here, the facts in Blair, rather than in Bennett, are analogous to the case-at-
bar. Accordingly, I would conclude that the independent contractor exception applies to bar
recovery in this case.
Still, as the majority points out, Tennessee law is well-settled that a tortfeasor may
assume a duty that is not required by law. See, e.g., Draper v. Westerfield, 181 S.W.3d 283,
291 (Tenn. 2005). Unfortunately for Ms. Cunningham, she did not present this argument in
the trial court. I next turn to the issue regarding waiver of her argument.
C. Waiver of Argument Regarding Service Agreement2
In her brief to this Court, Ms. Cunningham argues, however, that regardless of the
general application of the independent contractor exception or the fact that Mr. Cunningham
was arguably injured by a risk inherent in his job, the exception should not apply in this case
because the Epstein Entities assumed a duty of care in their agreement with Allegiance.
According to Ms. Cunningham, the Service Agreement is vitally important to the analysis in
this case because the notice to the independent contractor in Blair is provided by ―the repair
contract itself,‖ and it is only by contract that the independent contractor assumes
―responsibility to determine the extent of the [contractor‘s duties].‖ Blair, 924 S.W.2d at 77.
The Service Agreement in this case specifically provides that Allegiance ―makes no
2
Curiously, the majority posits that ―[t]he Service Agreement is the framework in which the [Epstein
Entities] ask us to analyze whether they have a duty of care.‖ It should be noted that the first time the Service
Agreement was referenced in correlation with the issue of voluntary assumption of a duty was in Ms.
Cunningham‘s brief to this Court. The Epstein Entities merely replied to her assertion that the Service
Agreement created a duty and argued that she had waived that argument at trial.
-5-
representations that the security requested is reasonably adequate,‖ and that Epstein
Enterprises, in contracting, was ―relying upon its own knowledge and investigation as to the
number and type of security personnel required.‖ Here, Ms. Cunningham argues that the
plain language of the Service Agreement places the duty to determine the appropriate security
measures for the subject premises on the Epstein Entities, rather than the independent
contractor. As such, she contends that the independent contractor exception cannot apply to
negate the Epstein Entities‘ duty to provide Mr. Cunningham with a reasonably safe
workplace. The majority Opinion swiftly dismisses this argument, finding that the language
of the Service Agreement alone is insufficient to impart a duty of care upon the Epstein
Entities. Instead, the majority holds that despite the fact that the Epstein Entities promised to
base their decisions regarding security on appropriate ―knowledge and investigation,‖ that
promise is apparently not enough where Ms. Cunningham failed to produce any evidence
prior to the summary judgment hearing demonstrating that Epstein actually had any
knowledge or did any investigation that would have revealed the ―type of risk that resulted in
Mr. Cunningham‘s death.‖ See infra (discussing Ms. Cunningham‘s waiver based on failure
to present certain depositions prior to summary judgment hearing detailing the knowledge of
the Epstein Entities).
Unlike the majority Opinion, however, I express no opinion as to whether the above
provision in the Service Agreement in fact removes Ms. Cunningham‘s claim from the
exception enunciated in Blair. Instead, I must conclude that this argument was waived by
Ms. Cunningham‘s failure to present it to the trial court in response to the motion for
summary judgment. At the outset, I note that Ms. Cunningham, in her brief, admits that ―this
particular argument was not presented in the trial court.‖ Here, the Epstein Entities filed a
properly supported motion for summary judgment. Attached to this motion was a
memorandum of law in support of the motion and a statement of undisputed material facts.
None of these documents mention the above clause from the Service Agreement. As
previously discussed, while Ms. Cunningham responded in opposition to the motion, she did
not object to any of the undisputed material facts offered by the Epstein Entities or offer any
additional facts for the trial court‘s consideration. Importantly, Ms. Cunningham never
indicates that she is relying upon the Service Agreement in arguing against summary
judgment. Indeed, from our review of the record, she attached no copy of the Service
Agreement to either her complaint or her response in opposition to summary judgment. Cf.
Tenn. R. Civ. P. 10.03 (―Whenever a claim or defense is founded upon a written instrument
other than a policy of insurance, a copy of such instrument or the pertinent parts thereof shall
be attached to the pleading as an exhibit[.]‖) (containing certain exceptions). Simply put, the
first time that Ms. Cunningham makes any argument that the Service Agreement‘s express
terms remove this case from the province of the Blair duty exception is to this Court on
appeal. Thus, the very first adjudication on the issue of whether the Service Agreement
imputes a duty upon the Epstein Entities is by the majority Opinion. Respectfully, this
Court‘s purpose is to correct errors made by trial courts, not make initial rulings on
arguments not presented to the trial court. See Alsip v. Johnson City Med. Ctr., No. E2004-
-6-
00831-COA-R9-CV, 2005 WL 1536192, at *7 (Tenn. Ct. App. June 30, 2005) (stating that
Tennessee Court of Appeals is ―an error-correcting intermediate appellate court‖). As
discussed in detail, infra, because Ms. Cunningham failed to present this argument in the trial
court, I would conclude that Ms. Cunningham waived the issue of whether the Service
Agreement imposes a duty upon the Epstein Entities.3
Tennessee law boasts an abundance of law concerning the waiver of arguments in the
trial court. Tennessee Rule of Appellate Procedure 36(a) provides that: ―Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.‖ Recently, in City of Memphis v. Shelby County, 469 S.W.3d 531 (Tenn.
Ct. App. 2015), perm. app. denied (Tenn. Aug. 14, 2015), this Court explained the well-
established principle that a party waives an argument he or she fails to present to the trial
court:
It has long been the general rule that questions not raised
in the trial court will not be entertained on appeal . . . .
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) . . . .
―[T]here is little difference between an issue improperly raised
before the trial court at the last minute and one that was not
raised at all.‖ In re Adoption of E.N.R., 42 S.W.3d at 32. Here,
the City only mentioned [the argument presented on appeal] in a
footnote of a pre-trial brief filed the day before trial. As in [In
re] M.L.P.[, 281 S.W.3d 387, 394 (Tenn. 2009)], the City‘s
constitutional challenge was ―late-raised [and] minimally
addressed.‖ In re M.L.P., 281 S.W.3d at 394. ―To now rely
upon the importance of this issue as grounds for appellate
3
The majority declines to explain why the doctrine of waiver is inapplicable to Ms. Cunningham‘s
argument that the Service Agreement created a duty. The majority premises its decision to forge ahead and
consider such arguments based on the presentation of certain facts concerning the Service Agreement. Facts
pertaining to the Service Agreement were certainly raised before the trial court; however, the specific argument
that Ms. Cunningham attempts to raise on appeal was not. Stated another way, the presentation of facts differs
from the presentation of an argument, which may be based on said facts. ―It is not the role of the courts, trial or
appellate, to research or construct a litigant‘s case or arguments for him or her, and where a party fails to
develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is
waived.‖ Heilig v. Heilig, No. W2013-01232-COA-R3CV, 2014 WL 820605, at *2 (Tenn. Ct. App. Feb. 28,
2014) (citing Sneed v. Bd. of Prof’l Responsibility of Sup.Ct., 301 S.W.3d 603, 615 (Tenn. 2010)). Here,
although the fact that the Service Agreement existed and created a relationship between the parties was clearly
before the trial court, Ms. Cunningham‘s current argument that the Epstein Entities assumed a duty based upon
language in the Service Agreement certainly was not.
Indeed, the majority makes no effort to distinguish any of the nearly forty authorities on waiver,
including rules and caselaw, that I have cited in this separate opinion. Respectfully, the majority‘s conclusion
fails to demonstrate how this State‘s well-developed waiver jurisprudence is not applicable to bar Ms.
Cunningham‘s argument.
-7-
review is near hypocrisy given the short shrift it received at trial
where it could have, and should have, been fully adjudicated.‖
In re Adoption of E.N.R., 42 S.W.3d at 32. Accordingly, we
find that the [plaintiff‘s argument] was neither presented nor
decided in the trial court, and the [plaintiff] has waived its right
to argue this issue for the first time on appeal. In re M.L.P., 281
S.W.3d at 394.
Id. at 560–61. Similarly, our Supreme Court has held that an argument not raised during the
trial court proceedings is deemed waived. Alexander v. Armentrout, 24 S.W.3d 267, 272
(Tenn. 2000).
Although the Service Agreement was part of the record in the trial court and was
exchanged during discovery, Ms. Cunningham failed to raise it in response to the Epstein
Entities‘ statement of undisputed facts and her response to the motion for summary judgment.
This Court has previously stated that ―it [is] not the trial court‘s responsibility to scour the
record to identify any genuine issues of material fact that were not identified or argued in
Plaintiffs‘ response.‖ Jones v. City of Union City, No. W2013-02358-COA-R3-CV, 2015
WL 9257815, at *11 n.4 (Tenn. Ct. App. Dec. 17, 2015). Additionally, ―[i]n considering
whether the trial court erred in granting summary judgment, we will look to the evidence that
the parties presented to the trial court at each stage of the summary judgment proceedings
to decide whether the parties met their burden of production and whether a genuine issue of
fact existed.‖ Cartwright v. Jackson Capital, No. W2011-00570-COA-R3-CV, 2012 WL
1997803, at *11 n.9 (Tenn. Ct. App. June 5, 2012) (emphasis added). Recently, our supreme
court emphasized that the party opposing summary judgment ―must demonstrate the
existence of specific facts in the record which could lead a rational trier of fact to find in
favor of the nonmoving party.‖ Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 265 (Tenn. 2015) (emphasis added); see also Matshushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (opining that the nonmoving party ―must do
more than simply show that there is some metaphysical doubt as to the material facts‖). Thus,
―[t]he focus is on the evidence the nonmoving party comes forward with at the summary
judgment stage[.]‖ Rye, 477 S.W.3d at 265. Here, the mere inclusion of the Service
Agreement in the record is not sufficient to overcome the fact that Ms. Cunningham failed to
specifically reference it during the summary judgment proceedings or raise any argument
regarding the effect of the Service Agreement upon the issue of duty in this case.
Both my learned colleagues depart from my reasoning herein, instead apparently
requiring that the trial court comb the record to determine whether there was reason to deny
the Epstein Entities‘ summary judgment motion. I cannot agree that Rule 56 requires this
result, nor do I believe that imposing such a heavy burden on trial courts is contemplated by
our summary judgment procedure. First, I note that Rule 56.03 of the Tennessee Rules of
Civil Procedure places an affirmative duty on the parties, rather than the trial court, to set
forth the undisputed material facts necessary to a determination of any summary judgment
-8-
motion. Tenn. R. Civ. P. 56.03. The express purpose of this rule is to assist the court ―in
ascertaining whether there are any material facts in dispute.‖ Id. This Court, citing our
Supreme Court, previously emphasized ―the importance of attorneys using Rule 56.03
statements of material facts to their fullest,‖ explaining that trial courts and appellate courts
should not be required to sift through the record to find any information that is essential to a
summary judgment decision. Newell v. Maitland, No. W2007-01704-COA-R3-CV, 2008
WL 2122331, at *8 (Tenn. Ct. App. May 21, 2008 (citing Bennett v. Trevecca Nazarene
Univ., 216 S.W.3d 293, 299, n. 4 (Tenn. 2007). Once the moving party has set forth his or
her undisputed material facts, the non-moving party then has the burden to set forth ―any
additional fact that the non-movant contends are material.‖ Id. As this Court explained:
The statements of material facts submitted by the parties
on a motion for summary judgment are ―intended to alert the
court to precisely what factual questions are in dispute and point
the court to specific evidence in the record that supports a
party‘s position on each of these questions. They are, in short,
roadmaps, and without them the court should not have to
proceed further, regardless of how readily it might be able to
distill the relevant information from the record on its own.‖
Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003) (citing Owens v.
Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001)).
A fact is material when ―significant or essential to the issue or the matter at hand.‖
Abdulsayed v. Hand, No. M2012-00583-COA-R3CV, 2012 WL 5577298, at *4 (Tenn. Ct.
App. Nov. 14, 2012) (quoting Black’s Law Dictionary 484 (7th ed. abridged 2000)). Here,
the existence of a contract which may have bearing on the relationship between the parties is
both a fact and material to the analysis. Indeed, Ms. Cunningham heavily relies upon this
provision of the Service Agreement in arguing that summary judgment was inappropriate. In
my view, Ms. Cunningham was therefore required to raise the relevant provision of the
Service Agreement in her statement of undisputed material facts, or at the least in her
response to the Epstein Entities‘ motion.
When a party fails in its obligation to set forth the facts material to the question at
issue on summary judgment, the trial court cannot thereafter be faulted for only considering
those facts that are provided to it and those arguments that are actually raised in response to
the motion for summary judgment. Despite its reliance on Bennett v. Trevecca Nazarene
University on the issue of whether the Epstein Entities owed a duty, see supra, the majority‘s
Opinion overlooks another proposition posited by Bennett Court, which states: ―A trial court
should not need to sift through lengthy deposition testimony to find any information that is
essential to its summary judgment decision. Nor should an appellate court be required to do
likewise when reviewing decisions to grant or deny summary judgment.‖ Bennett v.
Trevecca Nazarene Univ., 216 S.W.3d 293, 298 n.4 (Tenn. 2007). To hold otherwise would
-9-
be to place the trial court in the untenable position of having to comb through the entire trial
court record in order to address every conceivable argument that could have been raised in
response to the summary judgment motion.
Additionally, ―federal judicial decisions interpreting rules similar to our own are
persuasive authority for purposes of construing the Tennessee rule[.]‖ Webb v. Nashville
Area Habitat for Humanity, Inc., 346 S.W.3d 422, 430 (Tenn. 2011). Under the federal
summary judgment procedure, federal courts have consistently held that the trial court is
under no obligation to comb the trial record searching for evidence to defeat a moving party‘s
summary judgment motion. See e.g., Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir.
1996) (―Rule 56 does not impose a duty on the district court to sift through the record in
search of evidence to support a party‘s opposition to summary judgment.‖); Jones v.
Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996) (―Rule 56, therefore,
saddles the non-movant with the duty to ‗designate‘ the specific facts in the record that create
genuine issues precluding summary judgment, and does not impose upon the district court a
duty to survey the entire record in search of evidence to support a non-movant‘s
opposition.‖); Lawson v. Sheriff of Tippecanoe Cnty., Ind., 725 F.2d 1136, 1139 (7th Cir.
1984) (noting that plaintiff was required to ―direct the judge to the portion‖ of the record that
was relevant to her opposition to summary judgment); Carmen v. San Francisco Unified
Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (―[A] district court is ‗not required to comb
the record to find some reason to deny a motion for summary judgment.‘‖) (quoting Forsberg
v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988)); Diadenko v. Folino, 890 F.
Supp. 2d 975, 982 n.4 (N.D. Ill. 2012), aff'd, 741 F.3d 751 (7th Cir. 2013) (―[I]t is not our
responsibility to comb the record searching for evidence supporting the plaintiffs‘ claims.‖);
Arrieta v. Yellow Transp., Inc., No. CIV.A.3:05CV2271-D, 2009 WL 129731, at *2 (N.D.
Tex. Jan. 20, 2009) (―The court considered all the evidence that plaintiffs‘ properly cited in
their summary judgment briefing, and it had no duty to comb the entire record—which in this
case included literally thousands of pages of deposition testimony—in search of additional
evidence.‖). Because the Tennessee Supreme Court has indicated that our summary judgment
standard should be ―consistent‖ with the federal standard, these cases are highly persuasive
authority that the trial court should not be required to make an exhaustive review of every
document in the record that could be relevant to the determination of the summary judgment
motion, where the party opposing summary judgment has shirked her duty to alert the court
to the material evidence.
Other Tennessee law further convinces me that waiver is appropriate in this case. For
example, in discussing the appropriate standard applicable when a party seeks to alter an
order granting summary judgment on the ground of newly discovered evidence, this Court
noted that the motion to alter or amend procedure:
[W]as not intended to provide a second bite at the apple for a
party who did not take a motion for summary judgment seriously
until the motion was granted. Summary judgment standards are
- 10 -
both well settled, as discussed above, and difficult for the
moving party to meet. Parties on both sides of a summary
judgment motion must heed those standards. The non-moving
party must fully oppose a motion for summary judgment before
it is granted rather than [seek to] to overturn a summary
judgment after only weakly opposing the motion.
Chambliss v. Stohler, 124 S.W.3d 116, 121 (Tenn. Ct. App. 2003). As such, ―appellate
courts will ordinarily decline to consider issues being raised for the first time on appeal‖ and
―[t]hus, arguments not asserted at trial are deemed waived on appeal.‖ Villages of Brentwood
Homeowners Ass’n, Inc. v. Westermann, No. 01A01-9708-CH-00388, 1998 WL 289342, at
*2 (Tenn. Ct. App. June 5, 1998) (citing Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725,
734-35 (Tenn. 1991); Dep’t of Human Servs. v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct.
App. 1996); Devorak v. Patterson, 907 S.W.2d 815, 818 (Tenn. Ct. App. 1995)).
Consequently, an appeal to this Court of a trial court‘s order granting summary judgment is
not an opportunity for the parties to set forth novel arguments not previously raised before
the trial court. Indeed, Tennessee courts have held that it is inappropriate to allow a party to
take one position regarding an issue in the trial court, and then ―change its strategy or theory
in midstream, and advocate a different ground or reason in this Court.‖ State v. Abbott, No.
01C01-9607-CC-00293, 1996 WL 411645, at *2 (Tenn. Crim. App. July 24, 1996) (citing
State v. Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988), cert. denied, 489 U.S. 1084,
109 S. Ct. 1541, 103 L. Ed. 2d 845 (1989); State v. Dobbins, 754 S.W.2d 637, 641 (Tenn.
Crim. App. 1988)). Here, Ms. Cunningham failed to even mention the Service Agreement,
much less the specific provision relied upon in this appeal, in any way in response to the
Epstein Entities‘ motion for summary judgment.
I understand that this is a difficult case involving the senseless death of an innocent
man, and I do not lack sympathy for Ms. Cunningham. However, I am constrained to follow
established precedent regarding waiver. See Harwell v. Benson, 76 Tenn. 344, 349 (Tenn.
1881) (indicating that a court cannot depart from the law regardless of sympathy for one
party); In re Lewis’ Estate, 45 Tenn. App. 651, 653, 325 S.W.2d 647, 648 (Tenn. Ct. App.
1958) (same). Because the trial court was not presented with this argument and allowed to
make an initial ruling on it, I must follow well-settled precedent holding that such argument
is waived. See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006) (―Issues not raised in
the trial court cannot be raised for the first time on appeal.‖); State, ex rel. Cottingham v.
Cottingham, No. M200802381COAR3CV, 2010 WL 2943283, at *3 (Tenn. Ct. App. July
27, 2010) (holding that because the party did not set forth in the trial court the specific
argument raised on appeal, the argument was waived); State v. Eads, No.
E200602290CCAR3CD, 2008 WL 2557367, at *13 (Tenn. Crim. App. June 26, 2008)
(―Issues and arguments not raised before the trial court are deemed waived on appeal.‖)
(emphasis added) (citing State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996);
State v. Turner, 919 S.W.2d 346, 356–57 (Tenn. Crim. App. 1995)); Caldwell v. Canada
- 11 -
Trace, Inc., No. W2003-00264-COA-R3CV, 2004 WL 1459418, at *4 (Tenn. Ct. App. June
28, 2004). Thus, I respectfully disagree with the majority Opinion‘s consideration of the
Service Agreement, as any argument that it created a duty on behalf of the Epstein Entities
was waived by Ms. Cunningham.
Similarly, I am concerned that the majority‘s Opinion creates irreconcilable
conclusions as to different issues surrounding this case. Although not described as issues of
waiver, the majority Opinion applies waiver in two respects. First, the majority holds that it is
―le[ft] to wonder‖ as to the Epstein Entities‘ knowledge of the criminal activity in the area.
The majority Opinion fails to mention, however, that the record on appeal contains the
deposition of Samuel H. Epstein, a member of the manager of the premises, Epstein
Enterprises. In his deposition, Mr. Epstein testifies to his knowledge of dangerous criminal
activity around the premises shortly before Mr. Cunningham‘s death. The majority Opinion,
quite rightly, chooses to disregard this proof because it was not presented to the trial court,
but was instead filed in March 2015 after the hearing on the Epstein Entities‘ motion for
summary judgment. Although declining to say it expressly, the majority is, by implication,
holding that Ms. Cunningham waived the consideration of such evidence by her failure to
present it timely to the trial court. Similarly, with respect to Ms. Cunningham‘s oral request
before the trial court for additional discovery, the majority, again without using the term
―waiver‖ expressly, holds that she has waived that argument for her failure to comply with
Rule 56.07 of the Tennessee Rule of Civil Procedure concerning summary judgment. Despite
thrice applying this Court‘s well-settled waiver rules,4 the majority Opinion does not enforce
the same rules on the issue of whether Ms. Cunningham waived her argument concerning any
consideration of the Service Agreement despite the fact that she simply did not present this
argument to the trial court. Accordingly, because I feel constrained to follow the Tennessee
Rules of Civil Procedure, I must depart from the majority Opinion‘s decision to consider Ms.
Cunningham‘s argument concerning the Service Agreement.
Based on the foregoing, I would conclude that the Epstein Entities have carried their
burden to show that summary judgment is appropriate. Additionally, I would conclude that
Ms. Cunningham has failed to establish that a genuine dispute of material fact exists as to
warrant a trial and affirm the trial court‘s grant of summary judgment in favor of the Epstein
Entities.
_________________________________
J. STEVEN STAFFORD, JUDGE
4
The majority also concludes that Ms. Cunningham has waived consideration of police records for the
Cherry Crest Apartments because she did not make an argument in the trial court or to this Court explaining
why she was unable to obtain the records before the hearing on the motion for summary judgment. The
majority‘s conclusion as to this issue, and its declination to apply waiver to other issues in this case, amounts to
an unpredictable application of the waiver doctrine that I fear will prove problematic for future litigants seeking
guidance on this issue.
- 12 -