Blair v. West Town Mall

• Citation: 130 S.W.3d 761
• Decision Date: 11 March 2004
• Docket Number: No. E2002-02005-SC-R11-CV.,E2002-02005-SC-R11-CV.
• Parties: Shamery BLAIR and Titus Blair v. WEST TOWN MALL.
• Court: Supreme Court of Tennessee

130 S.W.3d 761

Shamery BLAIR and Titus Blair v. WEST TOWN MALL.

No. E2002-02005-SC-R11-CV.

Supreme Court of Tennessee, at Knoxville.

January 7, 2004 Session.

March 11, 2004.

Howard E. Jarvis and Stephanie K. Hunt, Knoxville, Tennessee, for the appellants, West Town Mall.

James A.H. Bell and Richard L. Burnette, Knoxville, Tennessee, for the appellees, Shamery Blair and Titus Blair.

OPINION

FRANK F. DROWOTA, III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted permission to appeal in this case to determine whether the Court of Appeals erred in reversing the trial court's judgment granting summary judgment for Defendant. In resolving this issue, we must also determine whether Tennessee recognizes the "method of operation" theory in premises liability cases and whether Plaintiff's reliance upon that theory is appropriate, as a matter of law, in this case. We hold that plaintiffs in premises liability cases in Tennessee may attempt to establish constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This theory is available to Plaintiff in this case to pursue at trial. Because Defendant in this case failed to affirmatively negate an essential element of Plaintiff's claim or conclusively establish an affirmative defense, Plaintiff's burden to produce evidence establishing the existence of a genuine issue for trial was not triggered. Thus, the judgment of the Court of Appeals reversing the trial court's grant of summary judgment is affirmed. Accordingly, the judgment of the Court of Appeals is affirmed in part and modified in part, and this case is remanded to the trial court.

Factual and Procedural Background

Shamery Blair ("Plaintiff") sued West Town Mall ("Defendant") after she slipped and fell on slick oil spots as she exited the mall. Plaintiff alleged that Defendant, as owner of the premises, failed to exercise ordinary care in maintaining its premises in a condition safe for customers. Plaintiff claimed that Defendant failed to inspect and maintain the pavement in the parking lot in a reasonably safe condition and alternatively, that Defendant knew that buses dropped off customers at the area where she fell, that Defendant knew or should have known of the oil spots, and that Defendant failed to remove them.

Defendant filed a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56, arguing that Plaintiff had no evidence to show that Defendant had actual or constructive notice of the alleged dangerous condition. In support of this motion, Defendant relied on Plaintiff's deposition testimony that: 1) prior to the accident, she never had difficulty entering or leaving the mall and had never seen anything on the roadway, 2) she did not notice any slippery substances as she was walking at the time of the accident, 3) she did not know how long the substance had been there, where it came from, or if anyone at the mall knew it was there, and 4) she did not know if anyone at the mall had an opportunity to do anything about the substance prior to the accident. Defendant did not file an affidavit in support of the motion or present any other evidence. Plaintiff filed a response to the summary judgment motion, arguing that Defendant had constructive notice of the dangerous condition because of Defendant's method of operation. In particular Plaintiff's response stated:

The Defendant allows, or fails to prohibit, both commercial and private vehicles to stop outside of these primary entrance/exits to load and unload passengers and/or merchandise purchased at the Mall. Clearly, it is foreseeable that these vehicles will from time to time leak engine fluids that could cause a pedestrian to fall and sustain injury.

Plaintiff also submitted an affidavit from an automobile service consultant which alleged that motor vehicles commonly leak engine fluids when slowing down or stopping and that such leaks can create slick surfaces. Plaintiff also submitted two photographs of the area where the accident occurred.

The trial court granted summary judgment to Defendant, concluding that the parking lot was not part of Defendant's method of operation. Plaintiff appealed. The Court of Appeals reversed the grant of summary judgment in a three part opinion, with each judge writing separately. All judges agreed that the materials filed by Defendant in support of its motion for summary judgment were insufficient to negate an element of Plaintiff's claim, the element of notice; therefore summary judgment was not appropriate. The lead opinion, filed by Judge Swiney, "express[ed] no opinion on whether Defendant's parking lot constitutes a part of its method of operation." Judges Goddard and Susano agreed that summary judgment was not appropriate but wrote separately to state that the parking lot in this case could not possibly be considered part of Defendant's method of operation. Thus, the Court of Appeals unanimously reversed the grant of summary judgment, but a majority, two judges, concluded that Plaintiff's reliance upon the method of operation theory was misplaced. Defendant filed an application for permission to appeal in this Court, and the application was granted.

Standard of Review

The standards governing an appellate court's review of a motion for summary judgment are well settled. Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court's judgment, and our task is confined to reviewing the record to determine whether the requirements of Tennesee Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn.2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is appropriate where: 1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and 2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d at 88.

Analysis

Constructive Notice

We begin by clarifying the general application of the method of operation theory in premises liability cases in Tennessee and the application of that theory to this particular case.

Business proprietors are not insurers of their patrons' safety. However, they are required to use due care under all the circumstances. Martin v. Washmaster Auto Ctr., U.S.A, 946 S.W.2d 314, 318 (Tenn.Ct.App.1996). "Liability in premises liability cases stems from superior knowledge of the condition of the premises." McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn.1980). In order for an owner or operator of premises to be held liable for negligence in allowing a dangerous or defective condition to exist on its premises, the plaintiff must prove, in addition to the elements of negligence, that: 1) the condition was caused or created by the owner, operator, or his agent, or 2) if the condition was created by someone other than the owner, operator, or his agent, that the owner or operator had actual or constructive notice that the condition existed prior to the accident. Martin v. Washmaster Auto Center, U.S.A, 946 S.W.2d 314, 318 (Tenn.Ct.App.1996) (citing Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47 (Tenn.App.1995); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.App.1980)). We have previously held that constructive notice can be established by proof that the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition. Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn.1986).

In this case, Plaintiff attempts to prove constructive notice through a theory Plaintiff calls method of operation. Plaintiff alleges that Defendant had constructive notice based on the recurrence of the condition, which Plaintiff alleges results from Defendant's method of operation. While this Court has never expressly considered whether the method of operation theory can be relied upon to satisfy the above requirements, the Court of Appeals has considered this issue and has adopted two distinct approaches.

The first line of cases is based on the idea that the premises owner's method of operating the business indirectly resulted in creation of the dangerous condition, although the acts of third parties also contributed to its creation. Therefore, notice need not be shown. This approach to the method of operation theory is exemplified in Hale v. Blue Boar Cafeteria Co., 1980 WL 150173 (Tenn.Ct.App. Feb. 21, 1980). The plaintiff in Blue Boar slipped and fell on water that had been spilled in the self-service beverage area of a cafeteria. The plaintiff claimed that the dangerous condition was created by the method in which the cafeteria chose to conduct its business—the self-service method of providing beverages. The Court of Appeals observed:

It appears logical not to require notice of a hazardous situation created by the method in which the proprietor chose to operate its business .. . In these situations, the questions are: 1) whether the condition created by the chosen method of operation constitutes a hazardous situation reasonably foreseeable to others, 2) whether the proprietor used reasonable and ordinary care toward its invitees under those circumstances, and 3) whether the condition created was the direct and proximate cause of the plaintiff's injury.

Id. at *4.

More recently, this approach to the method of operation theory was applied in Trebing v. Fleming Cos., 40 S.W.3d 42 (Tenn.Ct.App.2000). Trebing involved a slip and fall in the entrance to a grocery store, in an area where water...