White v. BI-LO, LLC, No. M2007-02698-COA-R3-CV (Tenn. App. 9/26/2008)

• Decision Date: 26 September 2008
• Docket Number: No. M2007-02698-COA-R3-CV.,M2007-02698-COA-R3-CV.
• Parties: MARY HELEN WHITE v. BI-LO, LLC, D/B/A BI-LO.
• Court: Tennessee Court of Appeals

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MARY HELEN WHITE v.BI-LO, LLC, D/B/A BI-LO.

No. M2007-02698-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

July 11, 2008 Session.

Filed September 26, 2008.

Appeal from the Circuit Court for Coffee County;No. 35,797, Jerry Scott, Sr. J.

Judgment of the Circuit Court Affirmed.

Liberti A. Snider, Shelbyville, Tennessee, for the appellant, Mary Helen White.

Andy Rowlett and Patrick Witherington, Nashville, Tennessee, for the appellee, BI-LO, LLC, d/b/a BI-LO.

Frank G. Clement, Jr., J., delivered the opinion of the court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

OPINION

FRANK G. CLEMENT, JR., JUDGE.

Plaintiff, who was injured in a slip and fall, appeals the dismissal of her claim for personal injuries against a grocery store.The trial court awarded summary judgment based upon a finding that there were no genuine issues of material fact and that plaintiff had failed to establish the elements of a premises liability action.Plaintiff appeals arguing that there is a sufficient dispute of material fact over whether the grocery store had actual or constructive notice that a dangerous condition existed.We affirm the trial court's finding that the grocery store is entitled to judgment as a matter of law because there is no evidence in the record that the grocery store had actual or constructive notice of the dangerous condition.

The claim of Mary White, the plaintiff, arises from an incident which occurred on May 7, 2004 when she was shopping at the BI-LO grocery store in Tullahoma, Tennessee.Ms. White and her ex-husband had stopped at the store to pick up some soda that was on sale.As they were walking down one of the aisles, Ms. White stepped on an unseen spice bottle causing her to fall and injure her left knee.Neither Ms. White nor her ex-husband noticed any BI-LO employees on the aisle prior to her fall.

Ms. White timely filed this action against BI-LO alleging that the presence of the spice bottle on the floor constituted a dangerous condition and that BI-LO had constructive knowledge of the dangerous condition because the spice bottle had been on the floor a sufficient period of time to have been discovered in the exercise of due care.She also contended that BI-LO breached its duty to her by failing to remedy the situation before her injury.Following discovery, BI-LO moved for summary judgment alleging that Ms. White had failed to establish the essential elements of a premises liability claim, specifically that BI-LO had actual or constructive notice of the spice bottle being on the floor.

Discovery revealed that BI-LO performed hourly inspections of the aisles in the store.In support of its motion for summary judgment, BI-LO produced an inspection report from the day of the incident showing that the store manager had performed hourly inspections, the last of which occurred at 9:26 a.m. and that the aisle was clean of any merchandise or debris at that time.Ms. White's incident occurred nineteen minutes later, at 9:45 a.m.It is undisputed that the spice bottle fell or was dropped during the nineteen minute interval.Why it fell or who caused it to drop is unknown, and there is no evidence that a BI-LO employee caused the spice bottle to be on the floor or that any employee had actual knowledge that it was on the floor prior to Ms. White's fall.

Following the hearing on BI-LO's Motion for Summary Judgment, the trial court stated the key issue was whether Ms. White had alleged facts that BI-LO's conduct fell below the standard of care amounting to a breach of its duty of care.The trial court found that she had failed to assert facts which demonstrated actual or constructive notice and, therefore, BI-LO was entitled to summary judgment.Ms. White appeals.

STANDARD OF REVIEW

The issues were resolved in the trial court upon summary judgment.Summary judgments do not enjoy a presumption of correctness on appeal.BellSouth Adver. & Publ'g Co. v. Johnson,100 S.W.3d 202, 205(Tenn.2003).This court must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied.Hunter v. Brown,955 S.W.2d 49, 50-51(Tenn.1997).We consider the evidence in the light most favorable to the non-moving party and resolve all inferences in that party's favor.Godfrey v. Ruiz,90 S.W.3d 692, 695(Tenn.2002).When reviewing the evidence, we first determine whether factual disputes exist.If a factual dispute exists, we then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial.Byrd v. Hall,847 S.W.2d 208, 214(Tenn.1993);Rutherford v. Polar Tank Trailer, Inc.,978 S.W.2d 102, 104(Tenn. Ct. App.1998).

Summary judgments are proper in virtually all civil cases that can be resolved on the basis of legal issues alone, Byrd v. Hall,847 S.W.2d at 210;Pendleton v. Mills,73 S.W.3d 115, 121(Tenn. Ct. App.2001); however, they are not appropriate when genuine disputes regarding material facts exist.Tenn. R. Civ. P. 56.04.The party seeking a summary judgment bears the burden of demonstrating that no genuine disputes of material fact exist and that it is entitled to judgment as a matter of law.Godfrey v. Ruiz,90 S.W.3d at 695.Summary judgment should be granted at the trial court level when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion, which is the party seeking the summary judgment is entitled to a judgment as a matter of law.Pero's Steak & Spaghetti House v. Lee,90 S.W.3d 614, 620(Tenn.2002);Webber v. State Farm Mut. Auto. Ins. Co.,49 S.W.3d 265, 269(Tenn.2001).The court must take the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in favor of that party, discard all countervailing evidence, and, if there is a dispute as to any material fact or if there is any doubt as to the existence of a material fact, summary judgment cannot be granted.Byrd v. Hall,847 S.W.2d at 210;EVCO Corp. v. Ross,528 S.W.2d 20(Tenn.1975).To be entitled to summary judgment, the moving party must affirmatively negate an essential element of the non-moving party's claim or establish an affirmative defense that conclusively defeats the non-moving party's claim.Cherry v. Williams,36 S.W.3d 78, 82-83(Tenn. Ct. App.2000).

ANALYSIS

To prevail in a negligence action, the plaintiff must establish (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause.Satterfield v. Breeding Insulation Co.,___ S.W.3d ___, No. E2006-00903-SC-R11-CV, 2008 WL 4135605, at *4(Tenn.Sept. 9, 2008)(citingNaifeh v. Valley Forge Life Ins. Co.,204 S.W.3d 758, 771(Tenn.2006);Draper v. Westerfield,181 S.W.3d 283, 290(Tenn.2005)).

The first essential element that must be established by Ms. White, whether BI-LO owed a duty to her based on the facts of this case, is a question of law, which is to be determined by the court, not a jury.SeeSatterfield,2008 WL 4135605, at *4(citingWest v. E. Tenn. Pioneer Oil Co.,172 S.W.3d 545, 550(Tenn.2005);Bradshaw v. Daniel,854 S.W.2d 865, 869(Tenn.1993));see alsoCarson v. Headrick,900 S.W.2d 685, 690(Tenn.1995).The court serves as "a gate-keeper" and may exclude a claim if it finds, as a matter of law, that the defendant does not owe a duty to the plaintiff.¹Satterfield,2008 WL 4135605, at *13.

In its very recent opinion in Satterfield v. Breeding Insulation Company, the Tennessee Supreme Court explained that

Duty is a legal obligation to conform to a reasonable person standard of care in order to protect others against unreasonable risks of harm.Burroughs v. Magee,118 S.W.3d 323, 328-29(Tenn.2003);Staples v. CBL & Assocs.,15 S.W.3d 83, 89(Tenn.2000).As a general rule, persons have a duty to others to refrain from engaging in affirmative acts that a reasonable person "should recognize as involving an unreasonable risk of causing an invasion of an interest of another" or acts "which involve[ ] an unreasonable risk of harm to another."Restatement (Second) of Torts§§ 284, 302, at 19, 82(1965).Thus, if an individual "acts at all, [he or she] must exercise reasonable care to make his [or her] acts safe for others."Restatement (Second) of Torts§ 4 cmt. b, at 8.The core of negligence is the violation of this requirement by engaging in "behavior which should be recognized as involving unreasonable danger to others."W. Page Keeton, Prosser and Keeton on the Law of Torts§ 31, at 169 (5th ed.1984).

These rules do not, however, require that persons always act reasonably to secure the safety of others.Rather, they serve a more limited role as restraints upon a person's actions that create unreasonable and foreseeable risks of harm to others.Expounding upon this point more than a century ago, Professor Francis H. Bohlen asserted that "[t]here is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and non-feasance, between active misconduct working positive injury to others and passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant."[footnote omitted] While the primacy of this distinction is certainly subject to debate, that it has played a significant role in the formation of the law of negligence is beyond reasonable dispute.

Satterfield,2008 WL 4135605, at *4.Later in the opinion, the Supreme Court went on to explain that "[i]n most cases today, prior court decisions and statutes have already established the doctrines and rules governing a defendant's conduct.[footnote omitted] Generally, the presence or absence of a duty is a given rather than...