Shirley Lunsford v. K-VA-T Food Stores, Inc. ( 2020 )

03/31/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 2, 2020
SHIRLEY LUNSFORD v. K-VA-T FOOD STORES, INC.
Appeal from the Circuit Court for Knox County
No. 3-29-17 Deborah C. Stevens, Judge
___________________________________
No. E2019-01272-COA-R3-CV
___________________________________
This appeal involves a slip and fall premises liability case filed by an invitee against a
business proprietor. The trial court granted summary judgment to the business proprietor
because invitee’s evidence did not show that the condition in the business proprietor’s
store was inherently dangerous and because the court found the condition to be open and
obvious. For the following reasons, we agree with the trial court that the condition at
issue was not inherently dangerous and summary judgement should be granted for
Defendant.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded.
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.
Michael C. Inman, Knoxville, Tennessee, for the appellant, Shirley Lunsford.
J. Eric Harrison and Jeffrey M. Cranford, Morristown, Tennessee, for the appellee, K-
VA-T Food Stores, Inc..
OPINION
I. FACTS & PROCEDURAL HISTORY
Plaintiff Shirley Lunsford filed this lawsuit against Defendant K-VA-T Food
Stores, Inc. (“Food City”), a foreign corporation that has its principal office in Abingdon,
Virginia, doing regular business in Tennessee. Plaintiff alleges premises liability as a
result of “a trip and fall” while exiting the pharmacy of one of Defendant’s Food City
grocery stores in Knoxville, Tennessee. Plaintiff claims she suffered severe physical
pain, mental anguish, and financial harm as a result of her trip and fall, including medical
expenses, loss of enjoyment of life, and expenses for necessary personal care related to
the fall. After Defendant’s answer and initial discovery, Defendant filed a motion for
summary judgment on January 15, 2019, arguing its employees were not negligent in
maintaining its store on the day Plaintiff was injured and that the “weight scale” on which
Plaintiff tripped was open and obvious to the public and not inherently dangerous. In
support of its motion for summary judgment, Defendant submitted a statement of
undisputed facts and a memorandum of law, along with excerpts from the depositions of
Plaintiff; John Hodge, Jr., Assistant Manager of the Food City store where Plaintiff fell;
and Archie Skeens, Director of Safety and Compliance for Defendant.
The events giving rise to this case occurred on October 18, 2016, at Defendant’s
store located at 7202 Maynardville Pike in Knoxville, Tennessee. On that date, Plaintiff
entered Defendant’s store to retrieve a prescription from the store pharmacy. Plaintiff
had shopped at this location for several years, picking up medications from the pharmacy
as often as twice per month. Upon entering the store on October 18, 2016, Plaintiff
walked directly to the pharmacy area. In approaching the pharmacy window, Plaintiff
walked by the scale without issue. In approaching and walking past the scale, there was
nothing obstructing Plaintiff’s view of the scale, and there is no evidence to show there
were any displays, lights, or other distractions that detracted Plaintiff’s attention from the
scale. When Plaintiff initially walked past the scale, she did not trip over or contact the
scale in any way. Admitting to the above-mentioned facts, Plaintiff asserts she simply
did not notice the scale when she approached the pharmacy window. After completing
her business at the pharmacy window, Plaintiff began to exit the store via the same route
she entered, past the weight scale. Although Plaintiff’s route was not the only path of
ingress and egress between the entrance of the store and the pharmacy window, it was the
shortest. In passing the scale while exiting the store, Plaintiff’s foot contacted the base of
the scale, causing her to trip and fall.
Plaintiff responded to Defendant’s motion for summary judgment on March 15,
2019. The scale’s appearance, suitability of its location, and relation to the surrounding
objects prior to and during Plaintiff’s fall has been the subject of much debate between
the parties. Of the physical attributes pertaining to the scale, the following are
undisputed: the scale sat against the wall of the pharmacy with the base of the scale
extended outward into the aisle; the main body of the scale is several feet in height; and
the base of the scale is estimated to be approximately 3” in height and 12” by 14” in
length and width. The floor tiles surrounding the scale were 12” by 12”. The base of the
scale had a diamond or triangular pattern on the top; whereas the surrounding floor tiles
had no unique pattern. While the majority of the surrounding tiles were tan colored,
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several other “randomly assorted” tiles were either red or yellow.1 Plaintiff claims she
did not notice the scale because the base blended in with the surrounding floor tiles of
various primary colors as a result of the scale’s similar size and color.
The following photograph is a still shot image from a video of the store prior to
and during Plaintiff’s fall. The image depicts Plaintiff standing at the pharmacy window
just prior to her exiting the store. The image was included as Exhibit number 3 to
Plaintiff’s deposition:
Between Plaintiff initially walking past the scale and her fall, the scale did not
move, remaining against the wall with the base extended outward. However, prior to the
incident, employees of Defendant’s store often removed the scale to clean and wax the
floors, and when the scale was placed back in the pharmacy area it would occasionally be
placed in a different location. It is not clear from the record how long the scale had been
present in the store, but Mr. Hodge testified that it was present when he began his
1
In Plaintiff’s deposition, she agreed that the top of the scale was black and white, which did not
match the surrounding squares, with a black border around the square base. After her deposition, though,
Plaintiff recanted that testimony in an affidavit in support of her response to Defendant’s Motion for
Summary Judgment, stating her agreement to those descriptions was “inadvertent.”
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employment there in 2012 or 2013. Mr. Hodge further testified that no other customer or
employee had tripped over the scale.
Mr. Skeens testified that other Food City stores had similar weight scales in their
pharmacy areas, but some of those stores positioned the scales between other stationary
objects rather than allowing the base to extend outward freely. Across from the scale at
issue was a stationary display case of various items for sale. Plaintiff asserts that the total
width of the aisle way was no more than 36 inches, but after the base of the scale (12” by
14”) and the display case’s overhang (12”) are taken into account, the remaining aisleway
was “significantly reduced.” In his capacity as Director of Safety and Compliance, Mr.
Skeens audited the stores biannually. He was not aware of any other incidents of
customers tripping over scales in other stores owned by Defendant during his twelve
years of employment.2 In his audits of the store where Plaintiff tripped, Mr. Skeens did
not note any problems with the placement of the scale at issue.
In defense of the motion for summary judgment, Plaintiff claimed that it was
questionable as to whether the placement of the scale in this case created an open and
obvious risk or whether there was a safer location. In part, Plaintiff based this assertion,
on the common custom of other Food City stores that placed weight scales between
stationary objects. Plaintiff also asserted that Defendant was put on notice of the
potentially dangerous position of the scale by a store pharmacist informing management
that she thought someone would get injured by tripping over it.
The circuit court held a hearing on the motion for summary judgment on March
29, 2019. At the conclusion of the hearing, the court rendered an oral ruling in favor of
Defendant. The court found that nothing was inherently dangerous about the scale itself;
that Plaintiff successfully negotiated through the aisle next to the scale prior to tripping;
and that there was no evidence that Plaintiff was distracted from noticing the scale.
Additionally, the court found the scale was “open and obvious,” rather than a latent
defect, and there was no evidence that anyone had previously tripped over the scale. As a
result, the court found there was no material evidence in which a jury could conclude
Defendant was at fault. The circuit court entered its written order granting Defendant’s
summary judgment motion on June 20, 2019. Plaintiff timely appealed.
II. ISSUE PRESENTED
Plaintiff’s stated issues on appeal have been summarized as the following: whether
the trial court erred in granting Defendant’s motion for summary judgment based on the
weight of the evidence, as reasonable minds could differ as to the material facts in
dispute.
2
The record indicates that Defendant owns approximately 130 other stores.
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We disagree with Plaintiff’s assertions, and for the following reasons, we affirm
the decision of the trial court.
III. STANDARD OF REVIEW
Appellate courts review a trial court’s decision on a motion for summary judgment
de novo with no presumption of correctness. Kershaw v. Levy, 583 S.W.3d 544, 547
(Tenn. 2019) (citing Beard v. Branson, 528 S.W.3d 487, 494–95 (Tenn. 2017)). On
appeal, we must “make a fresh determination about whether the requirements of Rule 56
have been met.” TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn.
2019). Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04.
A moving party who does not bear the burden of proof at trial can meet its burden
of production “‘either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.’” TWB Architects, Inc., 578 S.W.3d at 887 (quoting Rye v. Women’s Care Ctr.
of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015)). Then, “‘[t]he nonmoving party 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.’” Id. at 889 (quoting Rye, 477 S.W.3d at
265). We accept the evidence presented by the nonmoving party as true, allow all
reasonable inferences in its favor, and resolve any doubts about the existence of a
genuine issue of material fact in its favor. Id. at 887.
IV. DISCUSSION
In every negligence action, the plaintiff bears the burden of proof on five essential
elements: “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the
defendant falling below the standard of care amounting to a breach of the duty; (3) an
injury or loss; (4) causation in fact; and (5) proximate causation.” Rice v. Sabir, 979
S.W.2d 305, 308 (Tenn. 1998) (citing Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993)). Additionally, premises liability cases present the “owner or occupier of [the]
premises [with] a duty to exercise reasonable care” with regard to those legally on the
premises. Id.3 This duty places upon owners “the responsibility to remove or warn
3
Whether the plaintiff is a licensee or invitee is no longer relevant in Tennessee. Rather than
applying different duties of care to these separate classifications, the “duty of reasonable care shall extend
to all persons who come upon the defendant’s property with [the defendant’s] consent, express or
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against latent or hidden dangerous conditions on the premises of which one was aware or
should have been aware.” Rice, 979 S.W.2d at 308 (citing Blair v. Campbell, 924
S.W.2d 75, 76 (Tenn. 1996); Eaton v. McLain, 891 S.W.2d 587, 593–94 (Tenn. 1994)).
See also Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014).
However, the duty owed by an owner or occupier is not absolute. Steele v.
Primehealth Med. Ctr., P.C., No. W2015-00056-COA-R3-CV, 2015 WL 9311846, at *9
(Tenn. Ct. App. Dec. 22, 2015). “Business proprietors are not insurers of their patrons’
safety.” Blair v. W. Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). See also Parker,
446 S.W.3d at 350; Hunter v. Kroger Ltd. P’ship, No. W2017-01789-COA-R3-CV, 2018
WL 5793562, at *3 (Tenn. Ct. App. Nov. 5, 2018). Meaning, there is no duty to warn of
every aspect of the premises. Steele, 2015 WL 9311846, at *9 (citing Norfleet v. Pulte
Homes Tenn. Ltd. P’ship, No. M2011-01362-COA-R3-CV, 2011 WL 5446068, at *5
(Tenn. Ct. App. Nov. 9, 2011)). “The duty imposed on the premises owner or occupier . .
. does not include the responsibility to remove or warn against ‘conditions from which no
unreasonable risk was to be anticipated, or from those which the occupier neither knew
about nor could have discovered with reasonable care.’” Rice, 979 S.W.2d at 309
(quoting W. Page Keeton, Prosser & Keeton on Torts, § 61 at 426 (5th ed. 1984)). As a
result, the general duty of care owed only requires the removal of conditions which are
actually dangerous and which are known or discoverable by the owner with reasonable
care. See, e.g., Kroger, 2018 WL 5793562, at *4; Newcomb v. State, No. M2014-00804-
COA-R3-CV, 2015 WL 3956038, at *3 (Tenn. Ct. App. June 26, 2015). Without some
evidence of the existence of a dangerous condition, there is no duty owed by the owner to
warn or remove the condition. Nee v. Big Creek Partners, 106 S.W.3d 650, 653 (Tenn.
Ct. App. 2002). See also Kroger, 2018 WL 5793562, at *4; Cruce v. Memmex Inc., No.
W2016-01167-COA-R3-CV, 2017 WL 497035, at *4 (Tenn. Ct. App. Feb. 7, 2017).4
implied.” Hudson v. Gaitan, 675 S.W.2d 699, 703–04 (Tenn. 1984) abrogated on other grounds by
McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
4
Plaintiff claims that the scale was not an “open and obvious” danger. The distinction between a
“dangerous” condition and one that is “open and obvious” is an important, and often blended, legal
nuance. Tennessee courts no longer ask whether a condition is “open and obvious” as a means of
determining a defendant’s duty. See Coln v. City of Savannah, 966 S.W.2d 34, 37, 43 (Tenn. 1998)
(stating “an ‘open and obvious’ danger does not automatically result in a finding of no duty”) overruled
on other grounds by Cross v. City of Memphis, 20 S.W.3d 642 (Tenn. 2000). Instead, the “open and
obvious” doctrine is now applied under comparative fault principles. Coln, 966 S.W.2d at 43. In doing
so, a court must first determine whether a duty of care is owed due to the presence of a dangerous
condition. If the court answers that query in the affirmative, it must then apply the principles of
comparative fault to determine if the owner is relieved of liability. Id. at 42–43; Green v. Roberts, 398
S.W.3d 172, 177 (Tenn. Ct. App. 2012). Meaning, a duty may exist, and the owner may be liable, even if
a condition is “open and obvious” so long as a dangerous condition is present. See Rice, 979 S.W.2d at
308. Additionally, comparative fault determinations are questions of fact to be determined by a jury, see
Elrod v. Continental Apartments, No. M2007-01117-COA-R3-CV, 2008 WL 425947, at *2 (Tenn. Ct.
App. Feb. 13, 2008) (citing LaRue v. 1817 Lake, Inc., 966 S.W.2d 423, 427 (Tenn. Ct. App. 1997)),
whereas the duty element in a negligence case, is a question of law to be decided by the court. See Rice,
979 S.W.2d at 308.
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Plaintiff argues the position and location of the scale in the pharmacy created a
dangerous condition that Defendant neither warned its patrons of nor removed. In doing
so, Plaintiff asserts that Defendant’s notice of the potential danger of the scale; the
common occurrence in other Food City stores placing similar scales between stationary
objects; and Defendant’s own store safety policy, which states that an object of the
scale’s height could cause someone to trip, all lead to the conclusion that the scale was a
dangerous condition. Therefore, Plaintiff claims that a duty to warn of or remove the
scale was owed to her. The evidence, however, does not support this finding.
First, the evidence is insufficient to show that the store’s management was actually
on notice of the scale’s potential to cause injury prior to Plaintiff’s fall. Plaintiff testified
that after her fall, a store pharmacist assisted her and remarked that “she had already told
them once that somebody was going to get hurt on that.” However, there is nothing in
the record to clarify to whom the pharmacist made this remark, when it occurred, or
where the scale was situated when the remark was made.5 The only direct testimony on
the issue came from Hodge, who stated it was not until after Plaintiff’s fall that a store
pharmacist told Hodge that she believed the scale’s position would be an issue.
Additionally, Defendant was not aware of any other employee or customer of the
store having tripped over the scale prior to Plaintiff. Without prior notice of potential
future harm it cannot be said that it was foreseeable that either a customer or employee
would one day trip over Defendant’s scale, so a duty on such a basis cannot be assigned.
See Coln, 966 S.W.2d at 43; Rice, 979 S.W.2d at 309 (stating “foreseeability is the test of
negligence”) (quoting Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992)).
Further, while other Food City stores may have placed a similar weight scale differently
in their respective pharmacy sections, that alone does not point to the scale at issue being
dangerously positioned in this store. No other accidents were known to have occurred
previously to indicate the location was flawed. Additionally, Defendant’s trained and
certified Director of Safety and Management, Mr. Skeens, inspected the store biannually
and did not find issue with the scale’s location. Plaintiff did not present any expert
testimony or other evidence that would tend to show the scale’s location was inherently
dangerous. Further, while Defendant’s “Slip, Trip, and Fall” policy states, “As little as a
three-eighth-inch rise in the walkway can cause a person to stumble,” (emphasis added)
and the parties agree the base of the scale was at least that high, the simple fact that an
object is big enough to trip over does not per se make it a dangerous condition. See, e.g.,
Kroger, 2018 WL 5793562, at *8 (tripping over a wooden pallet, not a dangerous
5
Assuming arguendo there was sufficient evidence to show that the pharmacist’s statements were
made to Food City management, being on notice of the mere potential for injury is not enough; it must be
foreseeable or likely that an injury will occur. See, e.g., Mooney v. Genuine Parts Co., No. W2015-
02080-COA-R3-CV, 2016 WL 2859149, at *7–8 (Tenn. Ct. App. May 11, 2016) (stating the defendant’s
acknowledgement of the remote possibility of an injury is insufficient to show it was dangerous; instead,
it must be “probable” that injury will occur).
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condition); Buck v. Accurate C & S Servs., No. E2017-00231-COA-R3-CV, 2017 WL
5135703, at *6, (Tenn. Ct. App. Nov. 6, 2017) (tripping over a door frame, not a
dangerous a condition).
In the present case, Plaintiff asserts the aisleway between the scale and a display
case was too narrow and, therefore, violated Occupational Safety and Health
Administration (“OSHA”) requirements that an aisle be at least twenty-eight inches in
width. In her brief, Plaintiff argues that “the violation of OSHA” allows reasonable
minds to conclude that the scale not only created a trip hazard for store employees but
also “invariably” created a hazard for customers.
However, Plaintiff failed to sufficiently develop this argument in the trial court or
on appeal. To establish a “violation of OSHA,” she attempted to piece together
testimony from various witnesses. Mr. Skeens was asked the following during his
deposition:
Q. . . . Is there a certain place where a scale is supposed to be placed
pursuant to OSHA as well as fire protection codes that you may know of
from your training?
A. No.
Q. Are you aware of -- is there a specific distance that a scale is supposed to
be placed, or let me put it a better way, what is the width of an aisleway
supposed to be?
A. According to OSHA, the minimum width is 28 inches.
....
Q. Okay. What if there are items that are moved through that aisleway;
does it change it? Such as buggies, equipment.
A. If it was a stationary object, yes, it would change it. But if it's a movable
object, no.
Skeens testified that he had read the OSHA code “[m]any times.” He did not see
any problem with where the scale was located, and he did not believe that its location was
unsafe. He also stated that “all OSHA's concerned with is egress, in case of an
emergency.”
Mr. Hodge was simply asked to estimate how much space was present for the
“walking surface” at the location of the scale, and he replied, “You are looking at around
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two to three feet.” Inexplicably, no one provided any testimony as to the exact
measurement of the area in question.
Combining the testimony of these two witnesses, Plaintiff claims that she
sufficiently proved an “OSHA violation” that established a trip hazard not only for
employees but also for customers. She did not cite any specific OSHA regulation before
the trial court, nor did she cite any caselaw regarding whether an OSHA regulation could
or should establish a standard that applies in cases involving non-employees such as
customers. In fact, at the summary judgment hearing, when defense counsel attempted to
cite specific OSHA regulations in an attempt to argue that they were not intended to
protect store customers, Plaintiff’s counsel objected to such argument:
MR. INMAN: Your Honor, I’m going to object to this, that nobody’s
actually testified to this. This is not something that’s
been presented in any discovery.
THE COURT: Well, I understand.
MR. HARRISON: It’s a U.S. Code, Judge. It’s self evident.
THE COURT: Yes. It was your response that said that one of the
bases why summary judgment shouldn’t be granted is
because of the failure to comply with OSHA
regulations.
Plaintiff’s counsel stated, “[A]s to OSHA, we didn’t argue or file as a negligence per se.
That just demonstrates another example of Food City’s negligence.”
The trial court’s summary judgment order never mentioned OSHA. On appeal,
Plaintiff attempts to revive her “OSHA violation” argument without citing any caselaw or
other legal authority regarding OSHA. We do not even know what specific section she
claims was violated. As such, we deem this “OSHA violation” argument waived for
failure to develop any more than a skeletal argument regarding the issue.
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.
Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn.
2010). See also El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009) (“Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
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argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in [a] skeletal way, leaving the court to put flesh on its bones.”).
In contrast, Defendant relies on several analogous cases to support its claim that
the scale was not a dangerous condition. In Goumas v. Mayse, No. 2013-01555-COA-
R3-CV, 2014 WL 1713195 (Tenn. Ct. App. Apr. 29, 2014), the plaintiff was injured
when he slipped on a rock while performing yard work at the home of his fiancée’s
parents. Id. at *1. Similar to Plaintiff having frequented the Food City store for several
years, in Goumas the plaintiff had been to the home several times prior and was familiar
with the landscape. Id. at *1, *8. In finding for the defendant, the court found “[t]here
[was] simply no evidence of a dangerous or defective condition,” stating the rock was
“easily visible” and “in an area with no obstructions.” Id. at *8.6
In both Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV,
2015 WL 151373 (Tenn. Ct. App. Jan. 13, 2015), and Cagle v. Gaylord Entm’t Co., No.
M2002-00230-COA-R3-CV, 2002 WL 31728866 (Tenn. Ct. App. Dec. 5, 2002), the
respective trial courts affirmed summary judgment in favor of the defendants after the
plaintiffs tripped and fell over curbs in parking lots. Holland, 2015 WL 151373, at *1;
Cagle, 2002 WL 31728866, at *1. In Holland, the plaintiff admitted she would not have
tripped over the curb had she noticed it prior to falling. Holland, 2015 WL 151373, at
*3. As in Holland, our Plaintiff admits there was nothing obstructing her view as she
passed the scale. In Cagle, there was no proof a building code or standard was violated,
and several other “visitors travers[ed the] parking lot on a daily basis.” Cagle, 2002 WL
31728866, at *3. In light of those facts and in the absence of countervailing evidence
presented by the plaintiff, the court found the curb was not a dangerous condition. Id. at
*3–4.
In Buck v. Accurate C & S Servs., 2017 WL 5135703, the plaintiff tripped over the
bottom of a door frame as he entered the defendant’s premises. Id. at *1. The frame was
approximately 3/4” in height, and there was no proof of others previously falling through
the doorway. Id. at *2, *5. In responding to the defendant’s motion for summary
judgment, the plaintiff not only declined to present his own evidence, but he also
admitted to never looking down at the threshold that he tripped over. Id. at *1. In
weighing the evidence, the court found the plaintiff failed to show “the rise in the
doorframe constituted a dangerous condition giving rise to a duty to warn.” Id. at *5.
In granting summary judgment, the trial court in this case appeared to rely on most
heavily on Hunter v. Kroger Ltd. P’ship, 2018 WL 5793562. In Kroger, the plaintiff was
shopping in the frozen food section of the defendant’s grocery store in search for a
6
While the “landscape” of the store’s pharmacy may have changed periodically as a result of the
scale being placed in various positions, the scale itself, like the rock in Goumas, was visible and
unobstructed.
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particular item. Id. at *1. Noticing another patron beginning to walk down the aisle, the
plaintiff stepped backward several steps before tripping on a standard “wooden pallet” in
the middle of the aisle that had been left there by a Kroger employee, causing her
injuries. Id. Nothing obstructed the plaintiff’s view of the pallet prior to tripping over it.
Id. at *1–2. Kroger admitted to owing a general duty of care but denied the pallet created
a risk of “unreasonable harm or peril.” Id. at *1. Instead, Kroger asserted the plaintiff’s
injuries were the result of her own lack of awareness of her surroundings. Id. In
response to Kroger’s motion for summary judgment, the plaintiff agreed with all of the
asserted material facts, which only showed there was a pallet on the floor in the aisle and
the plaintiff fell over it. Id. at *7. Taken together, the mere fact the plaintiff suffered an
injury was not enough to hold the pallet was dangerous or unsafe. Id. at *8. Reciting the
oft quoted language from Cagle, the court in Kroger stated, “[g]raceful athletes often trip
on yard lines in football or on the foul line in basketball. People do trip and fall on
conditions that are not unsafe.” Id. (quoting Cagle, 2002 WL 31728866, at *3)
(alteration in original). Since the pallet was not deemed to be a dangerous condition, the
court found Kroger had no duty to warn of or remove the pallet, and the plaintiff’s claim
failed. Id. at *8.7
In addition to the cases cited by Defendant, this court reached a similar conclusion
in Mooney v. Genuine Parts Co., 2016 WL 2859149. Mrs. Mooney fell and was injured
while exiting. Id. at *1. The front door of the defendant’s store, where there was a three-
and-one-half-inch drop in elevation. Id. The plaintiffs claimed the store was negligent in
failing to warn of the change in elevation or by failing to make the “dangerous” walkway
safer by implementing remedies such as “a ramp, contrasting floor material or paint,
handrails, or warning signs.” Id. Much like Plaintiff in the case at bar, Mrs. Mooney
simply stated she did not notice the drop-off as she exited the store despite the fact she
entered the store through the same doorway only minutes prior. Id. at *6. Mrs. Mooney
noted her vision was unimpaired and there was adequate lighting to display the three-
inch-and-one-half-inch decline. Id. After considering the evidence presented, the court
held the plaintiffs failed to show there was a genuine issue of material fact regarding the
step as a dangerous condition, stating the “scant evidence” would require speculation. Id.
at *7. The court went on to explain that Mrs. Mooney’s fall was not foreseeable given
that no one else had been injured due to falling down the step-down in 26 years and
noting Mrs. Mooney’s successful entrance into the store minutes prior. Id. The court
reached this conclusion despite the defendant’s employees acknowledging it was possible
for a person to fall and injure themselves after forgetting about the step. Id. at *8 (stating
the “remote possibility of an injury” was acknowledged but it was not shown to be
“probable”).
7
Plaintiff argues that summary judgment was inappropriate in this case because the scale in
question “was latent and not open and obvious” like the pallet in Kroger. This is a misreading of the
case, however. The court in Kroger never made an express finding on whether the pallet was “open and
obvious” and simply found it was not a dangerous condition. See Kroger, 2018 WL 5793562, at *8.
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These cases lead to the same conclusion in the present case. Plaintiff’s trip and
fall over the scale, on its own, did not make the scale unsafe or a dangerous condition.
See Barron v. Stephenson, No. W2004-02906-COA-R3-CV, 2006 WL 16310, at *3
(Tenn. Ct. App. Jan. 4, 2006) (stating “the mere fact that an injury has been sustained”
does not automatically raise a presumption of negligence). See also Kroger, 2018 WL
5793562, at *7 (“It is well-settled in Tennessee that evidence of an injury, standing alone,
does not constitute evidence of a dangerous condition.”). The evidence shows Plaintiff
successfully traversed the same aisleway she eventually tripped in just moments prior to
her fall; the scale remained at the same location throughout Plaintiff’s time at the
pharmacy window, indicating she would know its location as she egressed from the store;
and there is no evidence of another fall as a result of the scale. Further, since Plaintiff
agrees nothing obstructed or detracted from her view of the scale (such as store displays,
lighting fixtures, or writings within the store), cases where a dangerous condition was
found as a result of the plaintiff’s distraction are irrelevant to the case-at-bar. See, e.g.,
McDavid v. ALDI, Inc., No. 2:16-cv-02699-SHM-cgc, 2017 WL 2954424, at *1, *4
(W.D. Tenn. 2017) (denying summary judgment in finding it was foreseeable that a
customer would be distracted by merchandise and momentarily forget to avoid the
obstacle at issue); Fox v. Food Lion, Inc., Store # 539, No. E191100015COAR3CV, 2000
WL 1424805, at *1, *4 (Tenn. Ct. App. Sept. 21, 2000) (holding the store “had reason to
expect that the attention of a customer such as [the plaintiff] would be distracted . . .
[when] merchandise is placed on shelves and on displays for the purpose of attracting the
attention of customers”).
Plaintiff’s contentions regarding the scale’s appearance, likewise, do not establish
it as a dangerous condition. Plaintiff asserts the scale’s base was a “similar primary
color” as the other “randomly placed” floor tiles throughout the store; that the scale was
approximately 12” by 14” compared to the tiles that were 12” by 12;” and that, as a
result, the scale “looked like a piece of tile on the floor.” However, the evidence clearly
shows that the scale’s base was distinguishable from the surrounding floor tiles. The
base of the scale itself had a diamond-shaped pattern on the top; whereas the surrounding
tiles, even colored ones, were solid-colored. While the Plaintiff initially stated she agreed
the scale was black and white, she later found the scale base to be blue and white, rather
than a solid color. Additionally, the base of the scale, like the wooden pallet in Kroger,
2018 WL 5793562, rose several inches off of the floor. Given there is no record of any
other employee or patron having tripped over the scale prior to Plaintiff, it is difficult to
say the scale presented a dangerous circumstance that invited injury.
Based on the foregoing discussion, this court agrees with the circuit court and
finds the scale in Defendant’s store was not a dangerous condition. Without proving
there was a dangerous condition, no duty was owed by Defendant to warn of or remove
the scale, and Plaintiff’s claim fails for failing to prove an essential element. See, e.g.,
Kroger, 2018 WL 5793562; Nee, 106 S.W.3d at 653.
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As a result of this holding, the issue of comparative fault raised by Defendant is
pretermitted.
V. CONCLUSION
For the reasons stated herein, the decision of the circuit court is affirmed. Costs of
this appeal are taxed to appellant, Shirley Lunsford, for which execution may issue if
necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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