Armes by Armes v. Hulett

• Decision Date: 31 July 1992
• Citation: 843 S.W.2d 427
• Parties: Amanda Michelle ARMES, An Infant age 20 months, by next friend, natural guardian and father, Paul E. ARMES, Plaintiff/Appellant, v. Louise HULETT and Ron Shuler d/b/a Mr. Rooter, Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 427

843 S.W.2d 427

Amanda Michelle ARMES, An Infant age 20 months, by next friend, natural guardian and father, Paul E ARMES, Plaintiff/Appellant, v. Louise HULETT and Ron Shuler d/b/a Mr. Rooter Defendants/Appellees.

Court of Appeals of Tennessee,

Middle Section,

at Nashville.

July 31, 1992.

Application for Permission to Appeal

Denied by

Supreme Court

Nov. 23, 1992.

Jack Green, Nashville, for plaintiff/appellant.

Thomas Pinckney, Howell, Fisher & Branham, Nashville, for defendants/appellees.

OPINION

TODD, Presiding Judge.

The plaintiff, Amanda Michelle Armes, a minor suing by next friend, has appealed from a summary judgment dismissing her suit against the defendant, C & C Nashville Enterprises, Inc., for negligent infliction of personal injury.

The following facts are uncontroverted:

On March 15, 1989, plaintiff resided with her parents in an apartment in the basement of a house located at 2203 Maplehurst Drive, Nashville, Tennessee, and owned by Mrs. Louise Hulett, who is not involved in this appeal. At about 5:30 p.m. on said date, an employee of defendant was attempting to clear an obstruction in the plumbing serving the main floor of the house when a break occurred in a pipe in the ceiling structure of the basement apartment, causing sewage to leak and fall upon the minor plaintiff. Plaintiff received emergency room attention promptly after the incident and was subsequently treated for an ear infection.

The Trial Court entered partial summary judgment dismissing plaintiff's claim for the ear infection because plaintiff was unable to produce competent evidence of proximate cause. No complaint is made on appeal as to this action of the Trial Court.

Subsequently, the Trial Court entered summary judgment dismissing plaintiff's suit in its entirety, and it is this action which is the basis of plaintiff's complaints in this appeal. As stated in plaintiff's brief, the issue on appeal is:

Was summary judgment appropriate with regard to the infant's being damaged with sewerage from the plumbing broken by Defendant with resulting medical attention and pain and suffering.

At first blush, it would appear that the issue in this appeal is whether a plaintiff suffers a compensable injury from being deluged with sewage which does not cause any infection. However, the briefs do not discuss this issue, but concentrate upon the burden of introducing evidence in support of and in opposition to a motion for summary judgment, and, in particular, evidence of negligence of defendant.

T.R.C.P.Rule 56.03 states in pertinent part as follows:

The judgment sought shall be rendered forthwith 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 judgment as a matter of law.

Nothing in the quoted rule places upon a plaintiff faced with a motion for summary judgment the initial burden of producing some evidence of every necessary element of his case in the same manner as is required at trial to avoid a directed verdict at the close of plaintiff's evidence.

In seeking a summary judgment, the defendant must produce or point out evidence in the record which, if uncontradicted, entitles defendant to judgment as a matter of law. If the plaintiff offers no evidence to contradict such evidence, then defendant is entitled to summary judgment. If the plaintiff offers evidence to contradict or otherwise avoid the effect of the evidence offered by defendant, then there is no uncontradicted evidence to entitle defendant to judgment as a matter of law.

Having contradicted or avoided the evidence offered by defendant, the plaintiff is not obligated to offer evidence of other elements of his case as to which defendant has offered no evidence.

Defendant cites Moman v. Walden, Tenn.App.1986, 719 S.W.2d 531, wherein the Court stated:

Under Rule 56.03, upon motion, summary judgment shall be entered against a party who failed to make a showing sufficient to establish the existence of an essential element to that party's case and on which the party will bear the burden of proof at trial. If the non-moving party fails to establish the existence of an essential element, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Momans admit the execution of the "Suretyship Agreement" but allege that it was executed under economic duress and therefore void. The burden of showing economic duress is on the Momans. If they are unable to show that economic duress was used to obtain the "Suretyship Agreement," then summary judgment is appropriate.

Following our review of the record, we concur with the Chancellor in his finding that the Momans failed to establish that the Bank used economic duress.

719 S.W.2d at 533.

It is obvious from the above that the admission by the defendants of the execution of the surety agreement entitled the plaintiff to summary judgment unless defendants offered evidence of an affirmative defense to avoid the conclusive effect of plaintiff's evidence; for example, fraud in procurement of the agreement. Under these circumstances, the rule stated in Moman was applicable. That is, the defendants had the burden of producing evidence to contradict or avoid the evidence relied upon by plaintiff.

In Celotex Corp. v. Catrett, cited in Moman, the defendant had elicited from plaintiff the admission that she was unable to produce evidence to support a vital element of her case, i.e., connection of defendant with the injury claimed. Under these circumstances, the rule stated in Moman and adopted from Celotex was applicable, for, having admitted that she had no evidence to establish liability, plaintiff had the burden of contradicting her admission by producing evidence sufficient to establish liability.

In Owen v. Stanley, Tenn.App.1987, 739 S.W.2d 782, this Court said:

A motion for summary judgment can put the plaintiff's case to the test. After a plaintiff has been given a reasonable opportunity to substantiate its claims, a summary judgment may be entered if the plaintiff has failed to establish an essential element of his case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-25, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Moman v. Walden, 719 S.W.2d 531, 533 (Tenn.Ct.App.1986).

Since the proponents of Mr. Pope's will proved that it was properly executed, the burden shifted to the contestants to prove their claims that Mr. Pope lacked the mental capacity to execute a will and that he was unduly influenced by Mrs. Owen. In re Estate of Elam, 738 S.W.2d 169, 172 (Tenn.1987); Taliaferro v. Green, 622 S.W.2d 829, 835 (Tenn.Ct.App.1981). The contestants came forward with no proof on either the undue influence or the lack of testamentary capacity issues. Each, in turn, conceded that they had no factual basis for their claims other than their assertion that Mr. Pope was upset about his son's illness and would not have disinherited his dying son had it not been for his daughter's influence....

739 S.W.2d at 787.

In the cited case, the moving party proved due execution of the will which raised a presumption of regularity. This presumption served as evidence to support the motion for summary judgment until contradicted or otherwise avoided by evidence which was not produced. Therefore, under the uncontradicted evidence, the proponent was entitled to judgment as a matter of law, that is, the stated rule was applicable to the circumstances of the case.

In Goodman v. Phythyon, Tenn.App.1990, 803 S.W.2d 697, this Court said:

In the case at bar, the plaintiff simply failed to controvert Wolfson's affidavit testimony that the standard of care in the practice of ophthalmology is to accord the anesthetic team the supervision and control of the patient's sedation and failed to controvert that Wolfson conformed to that standard. Plaintiff's complaint is subject to summary dismissal if the plaintiff, after being given a reasonable opportunity, has failed to establish an essential element of the case in which the plaintiff will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Stanley v. Joslin, 757 S.W.2d 328, 330 (Tenn.App.1987); Moman v. Walden, 719 S.W.2d 531, 533 (Tenn.App.1986).

803 S.W.2d at 703.

In the cited case, plaintiff sued an ophthalmologist (M.D. eye surgeon) for negligence in permitting an inexperienced anesthetist to attend the patient and in failing to properly respond to an emergency during surgery. The defendant filed his affidavit which negatived negligence on his part. The plaintiff undertook to contradict the affidavit of the defendant by that of an anesthesiologist who admitted that he was not familiar with the standard of care required in the practice of ophthalmology. This Court held simply that the (plaintiff's) affiant anesthesiologist disqualified himself as an expert on the subject of his affidavit which was therefore not a competent and effective contradiction of defendant's competent affidavit. Therefore, the evidence requiring summary judgment was uncontradicted, and defendant was entitled to summary judgment.

In the same opinion, this Court said:

... In ruling on a motion for summary judgment, the trial court and the Court of Appeals must consider the matter in the same manner as a motion for a directed verdict made at the close of the plaintiff's proof, i.e., all the evidence must be viewed in the light most favorable to the opponent of the motion and all legitimate conclusions of fact must be drawn in favor of the opponent. It is only when there is no disputed issue of material fact...