Keene v. Cracker Barrel Old Country Store, Inc.

• Decision Date: 31 December 1992
• Citation: 853 S.W.2d 501
• Parties: Gloria KEENE and husband, Edward Keene, Plaintiffs/Appellants, v. CRACKER BARREL OLD COUNTRY STORE, INC., Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 501

853 S.W.2d 501

Gloria KEENE and husband, Edward Keene, Plaintiffs/Appellants, v. CRACKER BARREL OLD COUNTRY STORE, INC., Defendant/Appellee.

Court of Appeals of Tennessee Middle Section, at Nashville.

Dec. 31, 1992.

Application for Permission to Appeal

Denied by Supreme Court

May 3, 1993.

Keith V. Moore, Memphis, for plaintiffs-appellants.

Martin D. Holmes, Stewart, Estes & Donnell, Nashville, for defendant-appellee.

OPINION

LEWIS, Judge.

This is an appeal by plaintiffs from the trial court's granting of the defendant's motion for summary judgment and dismissal of plaintiffs' complaint.

Plaintiffs have presented three issues, all of which raise the single issue of whether the trial court erred in granting defendant's motion for summary judgment.

This case arose out of the following facts and circumstances:

Plaintiff Gloria Keene had traveled to Knoxville and Lenoir City, Tennessee, from Memphis to visit her daughter, where she spent three days prior to 27 July 1987. Plaintiff's sister and granddaughter traveled with her. On 27 July 1987, they left East Tennessee traveling to Memphis.

On the way home they stopped at a Cracker Barrel restaurant in Nashville sometime between 11:00 a.m. and 12:00 noon on the 27th. They had stopped at this Cracker Barrel restaurant on a number of occasions in traveling from Knoxville to Memphis.

Plaintiff, together with her sister Alice Cook and her granddaughter Natalie, went inside the Cracker Barrel restaurant. Alice Cook went to the rest room and plaintiff and her granddaughter looked for a toy in the merchandise section of the store.

Plaintiff and Natalie were joined by Mrs. Cook at the hostess stand. The hostess asked where they would like to be seated, and they elected to sit in the smoking area. They were directed to follow the hostess to their seats. They walked past the kitchen area through the non-smoking area and arrived at the area where they were to be seated. They were walking in single file with the hostess leading the way with plaintiff, granddaughter and Mrs. Cook following. As they walked into the dining area, plaintiff turned to her left. As she turned, she stepped on something. Both of her feet flew from under her and she fell on her left side, causing some paralysis on the left side and causing her to be rendered unconscious for a short period of time. Plaintiff at that time told her sister that she could not move her left arm. Plaintiff became cold and clammy and was going in and out of consciousness. Thus, she is able to remember only small bits and pieces of what occurred following her fall. She became nauseated and was moved several feet along the floor and propped up against a chair. A retired nurse was present at the restaurant and informed them that plaintiff was in shock. Plaintiff became sick at her stomach and threw up. An ambulance was called and she was taken to St. Thomas Hospital in Nashville. Mrs. Cook testified that she was too busy with plaintiff and Natalie to investigate the fall. She testified that her sister was deathly ill and was hurting; that she was paralyzed on her left side and could not move her arm or leg. She testified that her sister became cold, clammy and nauseated and she was told by a nurse that her sister was going in and out of shock.

After plaintiff was taken by ambulance to St. Thomas Hospital, she was moved to a Memphis hospital where she was to undergo surgery for the broken hip. Mrs. Cook attempted to follow the ambulance to St. Thomas, but was unable to keep up since she was unfamiliar with Nashville. She stopped at another hospital where one of the hospital personnel called and located plaintiff at St. Thomas. When Mrs. Cook arrived at St. Thomas, plaintiff had been undressed, was in a gown, and was on her way to have X-rays made. Mrs. Cook was given plaintiff's handbag and found her blouse, underclothes and slacks folded at the end of the emergency room table. She did not unfold the clothes, but did take them with her to Memphis. Sometime within the next two days, Mrs. Cook unfolded plaintiff's clothes and at that time noticed a large dark or black greasy spot approximately the size of a silver dollar on the left hip area of the slacks and a smaller spot lower down about the size of a quarter. In an affidavit, she said these spots were from a food or gravy-type grease as opposed to other types of grease.

Mrs. Cook stated in her deposition that she was not thinking about the slacks as evidence and that she washed them a number of times until the spots were removed.

The evidence shows that the Cracker Barrel specializes in home-style or country cooking, utilizing a number of dishes with gravies and sauces. The food is prepared in the kitchen and is delivered to customers who have been seated at tables and have ordered from the menu. There is no occasion for customers to transport food to or from the tables. Upon completion of the meal, leftover food is removed by defendant's employees and taken back to the kitchen for disposal. The only time food is in a common area is when it is in the possession of an employee of Cracker Barrel.

Subsequent to plaintiff's first injury, a broken hip, plaintiff suffered a second broken hip when the hip first broken gave way and resulted in a fall which caused the other hip to break. Plaintiff suffers from a condition known as avascular necrosis, which is a loss or diminished supply of blood to the traumatized bone.

As a general rule, negligence cases are not amenable to disposition under Tennessee Rule of Civil Procedure 56 summary judgment proceedings unless, from all of the facts together with the inferences to be drawn from the facts, the facts and inferences are so certain and uncontroverted that reasonable minds must agree.

We vacate the summary judgments and remand since summary judgments generally are not appropriate in negligence actions. Bowman v. Henard, 547 S.W.2d 527 (Tenn.1977). The Supreme Court, in discussing duties of the trial judge when a summary judgment is sought pursuant to T.R.C.P., Rule 56 said:

Where there does exist a dispute as to facts which are deemed material by the trial court, however, or where there is uncertainty as to whether there may be such a dispute, the duty of the trial court is clear. He is to overrule any motion for summary judgment in such cases, because summary judgment proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues.

Evco Corporation v. Ross, 528 S.W.2d 20, 25 (Tenn.1975).

This court in Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476 (Tenn.App.1978), further observed:

The party who moves for summary judgment has the burden of showing that no genuine issue of material fact exists, and in ruling on the motion the court must view the record in the light most favorable to the motion's opponent. Id. at 480. [Citation omitted.]

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