Rosasco v. W. Knoxville Painters, E2020-01656-SC-R3-WC

CourtSupreme Court of Tennessee
Writing for the CourtWilliam B. Acree, Sr. J.
Docket NumberE2020-01656-SC-R3-WC
Decision Date18 November 2021



No. E2020-01656-SC-R3-WC

Supreme Court of Tennessee

November 18, 2021

Session Submitted on Briefs for June 21, 2021

Mailed September 15, 2021

Appeal from the Court of Workers' Compensation Claims No. 2019-1563A; Pamela Johnson

Brett Rosasco ("Employee") was injured when he was struck by a falling tree after he tried to use a portable restroom near his worksite. The Court of Workers' Compensation Claims determined that Mr. Rosasco's injury did not "arise primarily out of and in the course and scope of [his] employment" and granted summary judgment for West Knoxville Painters, LLC ("Employer"). See Tenn. Code Ann. § 50-6-102(14). Mr. Rosasco's appeal has been referred to this Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. After reviewing the evidence, we affirm the judgment.

Tenn. Code Ann. § 50-6-225(a) Appeal as of Right; Decision of the Court of Workers' Compensation Claims Affirmed

Cary L. Bauer, Knoxville, Tennessee, for the appellant, Brett Rosasco.

J. Allen Callison, Nashville, Tennessee, for the appellee, West Knoxville Painters LLC.

William B. Acree, Sr. J., delivered the opinion of the court, in which Roger A. Page, J., and Don Ash, Sr. J., joined.


William B. Acree, Sr. J.

Factual and Procedural Background

Mr. Rosasco suffered a serious injury and filed a petition for benefit determination, After the parties exhausted the benefit review process, the Court of Workers'


Compensation Claims denied Mr. Rosasco's claim following an expedited hearing, [1] and later granted Employer's motion for summary judgment. The facts are largely undisputed.

On October 31, 2019, Mr. Rosasco was painting the exterior of a house while working for Employer. A storm system in the area had produced strong winds. Mr. Rosasco described the weather as "really, really windy," which caused him to take a break from painting. At one point, he used a portable restroom that was located on the street. While inside the portable restroom, he heard a loud crack, rushed outside, and was struck by a dead tree that had fallen.

Employer did not obtain the portable restroom for its employees. Employer's standard practice was for its employees to use the customer's restroom. Neither Employer nor Mr. Rosasco knew who placed the restroom in that location. He was unaware of the dead tree or the proximity of the dead tree to the portable restroom.

Mr. Rosasco was taken to the emergency room and underwent a multi-level fusion surgery to repair fractures in his spine. The treating surgeon, Dr. William Oros, restricted him from lifting more than ten pounds, but later modified the restriction to twenty-five pounds.

Employer denied Mr. Rosasco's workers' compensation because the injury resulted from an "act of God" and did not arise primarily out of his employment. The Court of Workers' Compensation Claims subsequently granted Employer's motion for summary judgment after finding that Mr. Rosasco failed to "show a causal connection between the work he performed and the resulting injury." Mr. Rosasco has appealed.

Standard of Review

Review of factual issues is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court's factual findings, unless the preponderance of the evidence is otherwise. See Term. Code Ann. § 50-6-225(a)(2).

Summary judgment is appropriate when "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 shall prevail on its motion for summary judgment if it: (1) submits affirmative evidence that negates an essential element of the nonmoving party's claim; or (2) demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Tenn. Code Ann. § 20-16-101; Tenn. R. Civ. P. 56.06. A trial court's ruling on a motion for summary judgment is reviewed de novo, without a presumption of correctness. Rye v. Women's Care Center of Memphis, MPLLC, Ml S.W.3d 235, 250 (Tenn. 2015).


Mr. Rosasco argues that his injuries arose primarily out of his employment because "the undisputedly dead tree could have been cut down by someone exercising reasonable foresight" and because the event "was not, by definition, an act of God."

In contrast, Employer maintains that Mr. Rosasco's injuries did not arise primarily out of his employment because they resulted from an act of God. See Hames v. State, 808 S.W.2d 41, 44 (Tenn. Ct. App. 1991) ("Any misadventure or casualty is said to be caused by the act of God when it appears by the direct, immediate, and exclusive operation of the forces of nature, uncontrolled or uninfluenced by the power of man and without human intervention."). Employer also argues that Mr. Rosasco's employment did not subject him to a hazard that was "uncommon to the general public or peculiar to the nature of the employment."

A workers' compensation injury is one that "arises primarily out...

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