Berry v. Houchens Market of Tennessee, Inc.

• Decision Date: 15 November 2007
• Docket Number: No. M2006-02103-COA-R3-CV.,M2006-02103-COA-R3-CV.
• Parties: Vicky BERRY v. HOUCHENS MARKET OF TENNESSEE, INC., d/b/a Save-a-Lot Stores, and J.D. Eatherly Properties.
• Court: Tennessee Court of Appeals

253 S.W.3d 141

Vicky BERRY v. HOUCHENS MARKET OF TENNESSEE, INC., d/b/a Save-a-Lot Stores, and J.D. Eatherly Properties.

No. M2006-02103-COA-R3-CV.

Court of Appeals of Tennessee, Eastern Section, at Nashville.

June 29, 2007 Session.

November 15, 2007.

Permission to Appeal Denied by Supreme Court April 7, 2008.

Michael H. Sneed, Nashville, Tennessee, for appellant.

Joseph M. Huffaker and Mary Beth Haltom, Nashville, Tennessee, for appellee.

OPINION

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY, J., joined, and SHARON G. LEE, J., dissented and filed an opinion.

Plaintiff fell in a puddle of oil in the parking lot near the Save-a-Lot Market. The Trial Court granted the market and the owner of the parking lot summary judgment. On appeal, we affirm.

In this action, the plaintiff alleges she slipped and fell in the parking lot of a Save-A-Lot market in Nashville, Tennessee and sustained personal injuries. The Save-A-Lot is owned by defendant Houchens Market of Tennessee, Inc. ("Houchens") The Save-A-Lot is located in a shopping center, which, along with the parking lot is owned by defendant J.D. Eatherly Properties ("Eatherly").

Defendants filed a Motion for Summary Judgment, arguing that Houchens owed no duty of care to plaintiff, plaintiff could not prove an essential element of the premise liability claim against Eatherly, and plaintiff's negligence equaled or exceeded the negligence of the defendant. The Motion was supported by the deposition of plaintiff and an affidavit of J.D. Eatherly. In plaintiff's response, she said that defendant owed a duty under the premise liability "method of operation" theory pursuant to Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004). She also filed her affidavit and two photographs of the parking lot. She also filed affidavits of Jasmine Compton and Clarence Edward Simpson.

At the hearing on the motion, the Trial Judge granted Houchens' Motion, but the Motion on behalf of Eatherly was denied.

Subsequently Eatherly filed a Motion to reconsider, and in its memorandum in support it urged the Court to consider the premise liability principles set forth by this Court in Thompson v. Ruby Tuesday, No. M2004-01869-COA-R3-CV, 2006 WL 468724 (Tenn.Ct.App. Feb.27, 2006). The Trial Court then granted Eatherly's Motion and dismissed the action on May 5, 2006.

On June 5, 2006 plaintiff filed a Motion to Alter or Amend on the ground that she had new evidence that suggested both defendants had notice of the defective condition. Eatherly responded that the Motion did not set forth why the "new evidence" could not have been produced and presented before defendant's motion was heard and adjudicated. This motion was denied and plaintiff appealed.

Essentially, the facts regarding the accident are gleaned from the deposition of the plaintiff, and the evidence regarding the status of ownership of the parking lot and the agreement of lease between Houchens and Eatherly are set forth in the affidavit of J.D. Eatherly and the attached lease.

On the date of the accident, plaintiff had two nieces, ages nine and ten, in the car when she stopped at the Save-A-Lot with the intent of purchasing picnic supplies. She had not been to this particular store for approximately two years before the accident, and drove her car into the parking lot and parked in a space in front of the store. She got out of the car, closed the door and started slowly to walk around her car. She walked approximately three to four feet and slipped and fell in a puddle of oil in the parking lot. She claims to have not seen the oil on the ground before stepping in it. She fell on her back in the puddle of oil and injured her right leg. She testified that the back of her body, including her hair, was soaked in oil. Two elderly men, who had been sitting in their cars in the lot, observed her fall and helped her to her feet. These men advised plaintiff that a young man had just finished changing the oil in his car in the parking lot.

Plaintiff described the oil on the ground "it wasn't no little bitty amount, it was like a puddle of oil." She described the oil as "dark black" and stated that the oil, which was darker than the gray surface of the parking lot, was clearly distinguishable from the lot. Her explanation for not seeing the oil until she was lying in it was that she was looking straight ahead and that she never looks down when she is walking. She was questioned at her deposition:

Q. But what would have kept you from seeing it had you been looking where you were walking prior to stepping in it?

A. I don't know. I don't — I have no idea. I mean, I've been like this all my life. I mean, why all of a sudden would I — oh, gee, there's oil. I mean, come on, man. I mean I've just been like this all my life. I never look down when I'm walking. I always look straight ahead.

She agreed in her deposition that she did not know whether Save-A-Lot employees or the owner of the parking lot had notice of the puddle of oil she fell into. She stated that she drove by the lot after the day of the accident and it was in "filthy" condition. She acknowledged that she could not speak to the state of the lot prior to the day of the accident as she had not been there for two years prior to the accident. In her affidavit filed in support of her response to the defendant's motion she contradicts that last statement. In paragraph 4 of the affidavit she states:

4. The area of the store was generally kept unclean. I slipped in what I assumed to be oil which caused me to fall. I did not see the puddle of oil prior to stepping on to this substance. Attached hereto are copies of the photographs taken shortly after the fall. The photographs show the general state of the parking lot. The parking lot was rarely cleaned and generally was not swept free of debris. . . .

The affidavit of Jasmine Compton, a teenager who lived near the parking lot, stated that she had observed "oil and slick oil spots in the parking area." The affidavit of Clarence Edward Simpson, Sr., an employee of Save-a-Lot at the time of plaintiff's fall, states: "[t]he lot was never paved, cleaned or monitored to prevent people from the neighborhood from performing car maintenance on the lot."

J.D. Eatherly's affidavit in support of their motion stated that Eatherly was the owner of the property at issue at the time of the accident; the property was the subject of a lease agreement with various tenants who leased store space on the property, including Houchens, and that under the terms of the lease, the landlord was responsible for keeping the parking area and other common areas of the property in orderly condition, clear of dirt, debris and snow. The tenant was responsible for keeping the sidewalks and loading docks immediately adjacent to the leased premises free and clear of dirt, debris or snow. He further stated that on September 28, 2002 the parking lot of the property at issue served multiple tenants and that the lot was under the exclusive control of J.D. Eatherly Properties. Eatherly also addressed the issue of whether Eatherly caused or had notice of the puddle of oil. He stated that neither Eatherly nor its employees had notice of the puddle of oil or of any dangerous or defective condition at the lot on the day of the accident; neither Eatherly nor its employees caused the oil spill and that Eatherly had no knowledge that any employee of Houchens caused the oil spill. Plaintiff's deposition, considered in its most favorable light, together with Eatherly's affidavit, does not establish a material issue of material fact as to actual notice of the puddle of oil.

Summary judgment is appropriate only when the moving party demonstrates that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. Tenn. R. Civ. P.56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). If both the facts and conclusions to be drawn from such facts permit a reasonable person to reach only one conclusion, summary judgment is appropriate. Robinson, 952 S.W.2d at 426 (Tenn.1997).

In Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004), the Supreme Court reiterated the standards applicable when the appellate court reviews a motion for summary judgment:

Our task is confined to reviewing the record to determine whether the requirements of Tennessee 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; 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.

When the party seeking summary judgment makes a properly supported motion, the burden shifts to the nonmoving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact.

To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party's claim or conclusively establish an affirmative defense. If the moving party fails to negate a claimed basis for the suit, the non-moving party's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim.

Blair, at p. 763-64.

In Blair the Court continued to follow the rule that a defendant who seeks summary judgment must actually...