# Janine Halterman-Scott v. Tennessee Society of Certified Public Accountants

> Court of Appeals of Tennessee · September 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10586292

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** September 17, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Jeffrey Usman
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10586292

## How later opinions describe it (automated extraction)

- concluding that the nonmoving party substantially complied with the Rule by adequately setting forth the undisputed facts and adequately setting forth facts in dispute with citations to the record
- affirming the trial court’s decision to address the motion on the merits despite allegedly insufficiently specific citations to the record, and observing the court could waive the Rule if it found the responses sufficient
- reversing summary judgment because, given the time required for moss to grow, constructive notice could be inferred under the theory that there was a pattern of conduct, recurring incident, or general continuing condition

## Opinion text

09/17/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 5, 2024 Session

JANINE HALTERMAN-SCOTT v. TENNESSEE SOCIETY OF
CERTIFIED PUBLIC ACCOUNTANTS

Appeal from the Circuit Court for Williamson County
No. 22CV-470 Joseph A. Woodruff, Judge
___________________________________

No. M2024-00373-COA-R3-CV
___________________________________

The Plaintiff was injured as a result of stepping into a hole in the grass on the Defendant’s
property and brought a premises liability action. The trial court granted summary judgment
to the Defendant, finding that the Plaintiff’s responses to the Defendant’s statement of
undisputed material facts established that the Defendant had no actual or constructive
notice of the dangerous condition. On appeal, the Plaintiff asserts there is evidence from
which notice could be inferred. We conclude that the trial court properly granted summary
judgment. The judgment is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JEFFREY USMAN, J., delivered the opinion of the court, in which ANDY D. BENNETT and
KENNY W. ARMSTRONG, JJ., joined.

Jonathan H. Wardle, Lebanon, Tennessee (on appeal), and Phillip S. Georges (at trial and
on appeal), Nashville, Tennessee, for the appellant, Janine Halterman-Scott.

Anthony M. Berry, Nashville, Tennessee, for the appellee, Tennessee Society of Certified
Public Accountants.

OPINION

I.

The primary question in this appeal is whether the Plaintiff, Janine Halterman-Scott,
is bound by the admissions made in her responses to the Defendant’s statement of
undisputed material facts. We conclude that she is, and we accordingly affirm the trial
court’s order granting summary judgment to the Defendant, Tennessee Society of Certified
Public Accountants (TSCPA).

Ms. Halterman-Scott was injured while providing catering services to TSCPA on
its premises. Ms. Halterman-Scott was walking outdoors, moved off the sidewalk and into
the grass, and stepped into a hole. In her deposition, she described the hole as four or five
inches deep and eight inches long. A photograph included in the record shows a grassy
spot between the sidewalk and the building, with a darker area of the grass circled.

After discovery, TSCPA moved for summary judgment, arguing that Ms.
Halterman-Scott could not prevail because she could not show that TSCPA either caused
the condition or had actual or constructive knowledge of it. TSCPA set forth a statement
of undisputed material facts supporting its motion, and Ms. Halterman-Scott responded to
the statement as follows:

7. Plaintiff has no evidence that Defendant was ever put on notice regarding
the presence of the hole.

ANSWER: Admit.

8. Plaintiff had walked by the hole earlier in the day herself and did not see
it.

ANSWER: Admit in part and Deny in part, the Plaintiff went by the
area before that day but was not looking in the grass nor walking in the
grass, she was taking equipment and pushing carts.

9. Plaintiff has no evidence regarding the hole’s origin or what caused it.

ANSWER: Admit.

10. Plaintiff has no evidence revealing how long the hole was present in the
ground at the time of her accident.

ANSWER: Admit.

11. Plaintiff has no evidence that anyone else walked into the hole before she
did.

ANSWER: Admit.

(Citations to record omitted.) Ms. Halterman-Scott had been to that same location no more
than five or ten times since 2008 and had never experienced an issue with holes in the
-2-
ground on the property.

Although TSCPA’s motion for summary judgment analyzed and cited to caselaw
requiring the property owner in a premises liability action to have actual or constructive
notice, Ms. Halterman-Scott did not in her briefing in opposition to summary judgment
assert that the TSCPA had such notice. Instead, Ms. Halterman-Scott’s brief asserted that
“[t]he issue in this case is not whether the Defendant had notice of the dangerous condition,
in this case the hole, but rather the lack of due diligence to discover, maintain and correct
the dangerous condition.” The brief rejected the necessity of notice, stating, “Whether the
Defendant had notice of the hole or not does not change the existence of the hole on the
property.”

Ms. Halterman-Scott did not submit her own statement of undisputed material facts.
She cited in her briefing in opposition to summary judgment to the opinion of her expert
Mr. Frank Burg that “allowing a hole of five to six inches to form” and “subjecting invitees
to the danger of that hole without a proper warning” violated the standard of care. The
expert report noted that the hole was not visible. The expert opined that TSCPA “violated
the standard of ordinary care when they did nothing to protect people walking on their
property from this hidden danger” and that TSCPA “failed to be proactive.” The report
cited various regulations and rules generally discussing worker safety. The report stated
that a cone or cover would have prevented the damage and that TSCPA “must maintain
their lawn and their property, conduct inspections, and assure that their property is free of
recognized hazards which will injure their employees, subcontractors, and patrons.”
Notably, the expert’s report, however, did not address notice. The brief also referenced a
photograph and an accident report from the caterer, which reiterated that Ms. Halterman-
Scott injured her ankle walking through the grass and recounted the steps taken to address
the injury.

Ms. Halterman-Scott’s briefing in opposition to summary judgment relied on
McCormick v. Warren County Board of Education, No. M2011-02261-COA-R3-CV, 2013
WL 167764, at *8 (Tenn. Ct. App. Jan. 15, 2013), in which this court affirmed a trial court’s
finding that the property owner had constructive notice of a hole in a football field when
the plaintiff introduced proof that the area was mowed one to three times per week. Ms.
Halterman-Scott argued, “Just as in McCormick, the area in question here was a large hole,
located in a place where the grass is cut regularly,” citing to the photograph of the hole.
Ms. Halterman-Scott, however, failed to cite to any evidence related to the approach to
grass cutting in the area around the hole. TSCPA replied, arguing that Ms. Halterman-
Scott was required to establish notice, that the expert’s report constituted circular
reasoning, and that McCormick could be distinguished because the plaintiff there presented
evidence regarding the maintenance of the field.

The trial court granted summary judgment. In its factual recitation, the trial court
relied on the responses to the statement of undisputed material facts to find that Ms.
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Halterman-Scott had “no evidence that the [TSCPA] was ever put on notice regarding the
presence of the hole.” The trial court’s order noted that Ms. Halterman-Scott’s counsel at
the summary judgment hearing indicated he intended to concede only actual rather than
constructive notice.1 However, the trial court found that the written admission was not
qualified or limited, and that “[t]herefore, despite the argument of her counsel, Mrs.
Halterman-Scott’s response was clearly to ‘[a]dmit’ that she had no evidence that the
[TSCPA] was ever put on notice regarding the presence of the hole.” The court also found
that Ms. Halterman-Scott had “no evidence regarding the hole’s origin or what caused it,”
“no evidence revealing how long the hole was present in the ground,” and “no evidence
that anyone else walked into the hole before she did.”

The court rejected Ms. Halterman-Scott’s reliance on McCormick, noting that it
could not accept Ms. Halterman-Scott’s assumptions regarding the facts surrounding the
hole in place of clear admissions in the response to the statement of undisputed facts.
Regarding the expert report, the trial court stated in a footnote that the expert’s “opinions
were never identified by Mrs. Halterman-Scott in her response to the [TSCPA’s] Rule
56.03 statement as evidence with which she intended to rely for carrying her burden of
proof that the [TSCPA] was put on notice regarding the presence of the hole.” In a separate
footnote, the court concluded that it would exclude the expert’s report under Tennessee
Rule of Evidence 702 because the expert could not say with any reasonable degree of
professional certainty that an inspection would have uncovered the hole and the report
therefore did not substantially assist the trier of fact.

The trial court concluded that, based on the responses admitting that Ms. Halterman-
Scott lacked evidence to show that TSCPA had notice of the condition, lacked evidence
regarding how long the hole had existed, lacked evidence regarding the hole’s origin, and
lacked evidence that anyone else had walked into the hole, TSCPA had established that it
had no actual or constructive notice. The trial court went on to state that, based on
TSCPA’s showing, the burden would shift to Ms. Halterman-Scott to demonstrate facts
that could lead to a favorable verdict for her. The trial court observed that Ms. Halterman-
Scott filed no additional statement of material facts but referred in her brief to the expert
report, the accident report generated by the caterer, and a photograph of the hole.
Observing that “‘[j]udges are not like pigs, hunting for truffles’ that may be buried in the
record,” the court stated it would decline to “comb through” the record in search of a
genuine issue of material fact. See Cartwright v. Jackson Cap. Partners, Ltd. P’ship, 478
S.W.3d 596, 616 (Tenn. Ct. App. 2015) (quoting Flowers v. Bd. of Professional
Responsibility, 314 S.W.3d 882, 899 n. 35 (Tenn. 2010)). The trial court granted summary
judgment to TSCPA. Ms. Halterman-Scott appeals the grant of summary judgment.

II.

1
The hearing is not part of the appellate record.
-4-
Under Tennessee Rule of Civil Procedure 56.04, a court may grant a party summary
judgment on a claim 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. We review an order granting summary judgment de novo,
with no presumption of correctness. Cotten v. Wilson, 576 S.W.3d 626, 637 (Tenn. 2019).
A party seeking summary judgment who does not bear the burden of proof at trial “may
satisfy its burden of production either (1) by affirmatively negating an essential element of
the nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence
at the summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn.
2015).

A motion for summary judgment “shall be accompanied by a separate concise
statement of the material facts as to which the moving party contends there is no genuine
issue for trial,” set forth in separate numbered paragraphs and supported by citations to the
record. Tenn. R. Civ. P. 56.03. The party opposing the motion may set forth additional
facts demonstrating that there exists a genuine issue to be tried. Id. In response to a motion
for summary judgment supported under the Rule, “an adverse party may not rest upon the
mere allegations or denials of the adverse party’s pleading, but his or her response, by
affidavits or as otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party may not
merely assert “some metaphysical doubt as to the material facts.” Rye, 477 S.W.3d at 265
(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). Instead, it must “demonstrate the existence of specific facts in the record which
could lead a rational trier of fact to find in favor of the nonmoving party.” Rye, 477 S.W.3d
at 265. The evidence at a motion for summary judgment must be viewed in the light most
favorable to the nonmoving party, with all reasonable inferences drawn in that party’s
favor. Cotten, 576 S.W.3d at 637. However, a failure to set forth specific facts showing a
genuine issue for trial will result in the court granting summary judgment. Tenn. R. Civ.
P. 56.06.

III.

On appeal, Ms. Halterman-Scott asserts that the trial court erred in granting
summary judgment because there was a genuine issue of material fact regarding whether
TSCPA had constructive notice of the hole. TSCPA responds that Ms. Halterman-Scott is
bound by her admissions to the statement of undisputed material facts and that these
responses establish that TSCPA did not have actual or constructive notice of the condition.
We conclude that that Ms. Halterman-Scott is bound by her admissions and that her
admissions preclude a finding that TSCPA had constructive notice.

-5-
Ms. Halterman-Scott states on appeal that, in the trial court, she argued “strenuously
that TSCPA had constructive notice of the hole.” This is simply not so. In fact, the phrases
“constructive notice” or “constructive knowledge” do not appear at all in her written
arguments in opposition to summary judgment before the trial court. While she did address
a duty to inspect, in addressing TSCPA’s argument that it is entitled to summary judgment
based upon a lack of actual or constructive notice, Ms. Halterman-Scott’s counsel
responded in briefing that “[t]he issue in this case is not whether the Defendant had notice
of the dangerous condition, in this case the hole, but rather the lack of due diligence to
discover, maintain and correct the dangerous condition.” The briefing in opposition to
summary judgment explicitly rejects the necessity of notice, asserting, “Whether the
Defendant had notice of the hole or not does not change the existence of the hole on the
property.” While notice may not change the existence of the hole, it affects dramatically
the premises owner’s liability.

Business owners must exercise due care under the circumstances, but they are not
the insurers of their patrons’ safety. Williams v. Linkscorp Tenn. Six, L.L.C., 212 S.W.3d
293, 296 (Tenn. Ct. App. 2006). The duty of care includes “removing, or warning against,
any dangerous condition on the premises of which the property owner is actually aware or
should be aware through the exercise of reasonable diligence.” Parker v. Holiday
Hospitality Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014). Initially, to succeed in
a premises liability action, plaintiffs must prove the elements of negligence. Id. That is,
they must demonstrate “(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.” Id. at
250 n.7 (quoting Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn.
2008)). The duty of a premises owner to protect others stems “from the position of control
which the person in possession occupies; he is the person normally best able to prevent
harm to others.” McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980) (citing
Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn. Ct. App. 1973)). However, property
owners do not have a duty to warn against or remove latent defects or dangers about which
the owners did not know and could not have known. Parker, 446 S.W.3d at 350 (citing
Rice v. Sabir, 979 S.W.2d 305, 308-09 (Tenn. 1998)). Accordingly, in addition to the
elements of negligence, the plaintiff in a premises liability case must show that: “1) the
condition was caused or created by the owner, operator, or his agent, or 2) if the condition
was created by someone other than the owner, operator, or his agent, that the owner or
operator had actual or constructive notice that the condition existed prior to the accident.”
Blair v. W. Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). Here, the parties agree that
TSCPA did not cause or have actual notice of the condition.

Thus, for Ms. Halterman-Scott’s claim to survive, she must rely upon constructive
notice. Constructive notice is “information or knowledge of a fact imputed by law to a
person (although he may not actually have it) because he could have discovered the fact by
proper diligence, and his situation was such as to cast upon him the duty of inquiring into
-6-
it.” Parker, 446 S.W.3d at 351 (quoting Hawks v. City of Westmoreland, 960 S.W.2d 10,
15 (Tenn. 1997)). Constructive notice in premises liability cases may be established: (1)
by showing that a dangerous or defective condition existed for such a length of time that a
property owner, in the exercise of reasonable care, should have become aware of it, or (2)
by showing that the dangerous condition resulted from “a pattern of conduct, a recurring
incident, or a general or continuing condition.” Id. at 351-52 (quoting Blair, 130 S.W.3d
at 765). These avenues have been referred to as the “passage of time theory” and the
“common occurrence theory.” Mitchell v. City of Franklin, No. M2021-00877-COA-R3-
CV, 2022 WL 4841912, at *7 (Tenn. Ct. App. Oct. 4, 2022). Under the passage of time
theory, to reach an inference that the property owner should have become aware of the
condition, the plaintiff must adduce proof regarding the length of time the condition
existed. Id. “[A]s a general rule, constructive knowledge cannot be established without
some showing of the length of time the dangerous condition had existed.” Fowler v. City
of Memphis, 514 S.W.3d 732, 740 (Tenn. Ct. App. 2016) (quoting Hardesty v. Serv. Merch.
Co., 953 S.W.2d 678, 682 (Tenn. Ct. App. 1997)). “[I]n order to find constructive notice
under the common occurrence theory, the plaintiff must show that the dangerous condition
occurred in ‘the same approximate location and in such a frequent manner, that the
happening of the condition was foreseeable by the defendants.’” Fowler, 514 S.W.3d at
740 (quoting Merrell v. City of Memphis, No. W2013-00948-COA-R3-CV, 2014 WL
173411, at *7 (Tenn. Ct. App. Jan. 16, 2014)).

Ms. Halterman-Scott asserts error in the trial court’s finding that she admitted she
had no evidence of constructive notice, arguing that her admission that she had “no
evidence that Defendant was ever put on notice regarding the presence of the hole” was
regarding actual notice only. Even if we were to accept for purposes of argument Ms.
Halterman-Scott’s contention this particular admission only applies to actual notice, Ms.
Halterman-Scott’s other admissions foreclose the possibility of her demonstrating
constructive notice. As noted above, to establish constructive notice, Ms. Halterman-Scott
would have to adduce proof either that the condition had existed for sufficient time so that
TSCPA should have discovered it or that the condition resulted from a pattern of conduct,
a recurring incident, or a general and continuing condition. See id. at 737-38. Here, Ms.
Halterman-Scott explicitly conceded any sort of factual basis that could have supported the
conclusion that TSCPA had constructive notice — she admitted that she had no evidence
regarding the hole’s origin, no evidence regarding how long it had been present, and no
evidence that any other person had stepped into it. She also failed to present facts leading
to the conclusion that TSCPA should have been alerted to the existence of the hole or been
aware of its existence through some other means. Accordingly, given her admissions and
failure to present any countervailing facts, the trial court was correct that she admitted that
she could not establish constructive notice.

Nevertheless, Ms. Halterman-Scott seeks to establish notice by referencing a duty
to inspect. She asserts that she did argue below that TSCPA should have discovered the
hole through inspection. See Meadow v. D & G Ltd. Assortments, Inc., No. M2013-01627-
-7-
COA-R3-CV, 2014 WL 4536561, at *4 (Tenn. Ct. App. Sept. 11, 2014) (“Proof submitted
by a plaintiff that a defendant-owner or its agent failed to adequately perform an inspection
of its property is ‘directly relevant’ to the question of whether it had constructive notice of
the dangerous condition or defective condition resulting in injury.” (quoting Brown v.
Chester Cnty. Sch. Dist., No. W2008-00035-COA-R3-CV, 2008 WL 5397532, at *6
(Tenn. Ct. App. Dec. 30, 2008)); cf. Parker, 446 S.W.3d at 353 (concluding a hotel owner
had no duty to inspect the structural integrity of a bench and citing Smith v. Castner-Knott
Dry Goods Co., No. 01A01-9512-CV-00554, 1997 WL 203605, at *3 (Tenn. Ct. App. Apr.
25, 1997), for the proposition that a department store had only a duty to warn of dangers
that could be discovered by reasonable inspection and no duty to inspect for structural
integrity). However, “a reasonable inspection policy has no effect without proof of the
length of time the defect existed”; in other words, any duty to inspect is hollow without
some evidence that an inspection would have revealed the defect. Mitchell v. City of
Franklin, No. M2023-00736-COA-R3-CV, 2024 WL 1928839, at *10 (Tenn. Ct. App.
May 2, 2024), perm. app. denied (Tenn. Aug. 13, 2024).

In this vein, Ms. Halterman-Scott believes that notice could be established by
considering her expert’s opinion regarding inspection and duty. For the timing component,
Ms. Halterman-Scott endeavors on appeal to rely on the expert’s report regarding
inspection and argues that the trial court erred in excluding the report. A trial court’s
decision regarding the “qualifications, admissibility, relevancy, and competency of expert
testimony” is reviewed for abuse of discretion. Brown v. Crown Equip. Corp., 181 S.W.3d
268, 273 (Tenn. 2005). However, the expert’s report in this case does not offer an opinion
regarding how long the hole had been in existence or whether a reasonable inspection
would have uncovered it. Instead, the expert makes conclusory statements that the hole
was dangerous and TSCPA breached a duty by not remedying the condition or warning the
public. Ms. Halterman-Scott’s counsel acknowledged before this court that the report was
intended to establish duty and not the length of time the hole had existed.2 The report states
the hole was hidden by grass and refers to photographs, but it does not purport to opine on
how long the hole had existed. The report fails to engage with the requirement under
Tennessee law that a plaintiff must demonstrate that the property owner either caused the
condition or had actual or constructive notice of it. Accordingly, the report would not have
assisted Ms. Halterman-Scott in establishing constructive notice — which was the
dispositive issue in summary judgment — even if the court had not excluded the report.

2
Counsel made this acknowledgment in response to a direct question from this court:
Judge: Is there anywhere in the expert’s report where they indicate when the hole developed
or how — or give any facts that would say when this hole appeared or . . . some sense of
how long it had been there?
Counsel: The expert report was provided not to say how long the hole was there but to say
that you have a duty to inspect.
-8-
Turning again to the question of timing on appeal, Ms. Halterman-Scott argues that
the photograph exhibit shows that the grass on the lawn presents as a level plane, indicating
the hole was there when the lawn was last mowed. This argument is essentially an assertion
that the hole’s lifespan can be inferred from the length of the grass in the hole. While this
presents an interesting argument, the problem for Ms. Halterman-Scott is that this argument
is presented for the first time on appeal and directly contradicts her admissions in the trial
court. In essence, as framed on appeal, this is an argument that Ms. Halterman-Scott has
evidence revealing how long the hole was present in the ground at the time of her accident:
long enough for the grass to grow to fill the hole and be cut level with the surrounding
grass. However, when TSCPA presented her with the statement, “Plaintiff has no evidence
revealing how long the hole was present in the ground at the time of her accident,” she
responded, “Admit.”

In general, “when the opposing party agrees that a fact is not disputed pursuant to
Tenn. R. Civ. P. 56.03, the court may rely upon that admission in determining whether a
genuine issue of material fact exists.” Summers v. Cherokee Children & Family Servs.,
112 S.W.3d 486, 510 (Tenn. Ct. App. 2002). In fact, a trial court may even “consider
statements of fact as admitted when a non-moving party fails to respond to the moving
party’s statement of material facts.” Brennan v. Goble, No. E2020-00671-COA-R3-CV,
2021 WL 2156443, at *6 (Tenn. Ct. App. May 27, 2021). This is because Tennessee Rule
of Civil Procedure 56.03 was enacted “to prevent the trial court from having to search the
record for disputed facts when ruling on a summary judgment motion.” Id. at *7. When a
party fails to respond to the statement of undisputed facts, the trial court may deem the
statements admitted and decline to consider that party’s factual contentions,3 even if they
could be ascertained from the record. Id. The statements of material facts in a motion for
summary judgment “are, in short, roadmaps, and without them the court should not have
to proceed further, regardless of how readily it might be able to distill the relevant
information from the record on its own.” Owens v. Bristol Motor Speedway, Inc., 77
S.W.3d 771, 774 (Tenn. Ct. App. 2001) (quoting Waldridge v. American Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994)). “Although the trial court may, at its discretion, waive
the requirements of the rule where appropriate, the court may also refuse to consider the
factual contentions of a non-complying party even where such facts are ascertainable by
the record.” Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003).

Whether or not the hole’s prior existence could reasonably have been inferred from
the length of grass in the photograph in other circumstances, the trial court here was
justified in relying on Ms. Halterman-Scott’s admission that she had no evidence regarding
how long the hole had existed and on her failure to cite to evidence on the issue. This is
especially true because she never actually argued to the trial court that the photograph
showed that the hole had existed for a period of time sufficient to allow the grass to cover

3
Generally, a party is not bound by admissions of legal conclusions, only of facts. Old Hickory
Coaches, LLC v. Star Coach Rentals, Inc., 652 S.W.3d 802, 813-14 (Tenn. Ct. App. 2021).
-9-
it and grow as high as the surrounding grass. Her reference to the photograph in her
briefing in opposition to summary judgment was for the purpose of supporting the
contention that the lawn was maintained.

Nevertheless, Ms. Halterman-Scott advances the argument that the court erred when
it declined to engage in a “truffle hunt” by looking through the attachments to her briefing
in opposition to summary judgment. The trial court concluded that Ms. Halterman-Scott
had not carried her burden to demonstrate a genuine issue of material fact through her
responses to the statement of undisputed facts or through her own Rule 56.03 statement
and that she was attempting to place the burden of combing the record on the court in her
references to the expert report, the accident report, and the photograph. We note that Ms.
Halterman-Scott did not cite to the place in the deposition where she described the timing
or the circumstances surrounding the taking of the photograph. Although she argues on
appeal that the court erred in not considering the documents attached to her brief because
“[t]his was no truffle hunt,” Ms. Halterman-Scott was asking the trial court to peruse the
deposition in hopes of ascertaining what the photograph depicted and when it was taken.
We cannot say the court erred in declining to do so, particularly when presented with the
admissions at issue. See Bennett v. Trevecca Nazarene Univ., 216 S.W.3d 293, 298 n.4
(Tenn. 2007) (“A trial court should not need to sift through lengthy deposition testimony
to find any information that is essential to its summary judgment decision.”).

Ms. Halterman-Scott asserts the court erred when it refused to consider the
documents attached to her briefing in opposition to summary judgment, but none of the
cases cited in her brief stand for the proposition that this was error. See TWB Architects,
Inc. v. Braxton, LLC, 578 S.W.3d 879, 889 (Tenn. 2019) (affirming the trial court’s
decision to address the motion on the merits despite allegedly insufficiently specific
citations to the record, and observing the court could waive the Rule if it found the
responses sufficient); Key v. Blount Mem’l Hosp., Inc., No. E2010-00752-COA-R3-CV,
2011 WL 2135358, at *14 (Tenn. Ct. App. May 31, 2011) (concluding that the party
substantially complied with the Rule by attaching affidavits to the motion and providing
citations, but alternatively upholding the trial court based on the discretion to consider the
material); First Citizens Bank of Cleveland v. Cross, 55 S.W.3d 564, 571 (Tenn. Ct. App.
2001) (concluding that the nonmoving party substantially complied with the Rule by
adequately setting forth the undisputed facts and adequately setting forth facts in dispute
with citations to the record); see also Nunley v. Farrar, No. M2020-00519-COA-R3-CV,
2021 WL 1811750, at *5-6 (Tenn. Ct. App. May 6, 2021) (the court abused its discretion
waiving the requirements of the Rule when the movant’s statement of undisputed facts did
not clarify which facts were material and whether they were disputed and did not contain
citations to the record); Owens, 77 S.W.3d at 775 (the trial court did not abuse its discretion
in failing to waive the “strict requirements” of the Rule). In any event, neither the
photograph, which was presented without context, the expert’s report, nor the accident
report establish constructive notice. Accordingly, we conclude that the court did not err in
relying on the admissions to TSCPA’s statement of undisputed material facts.
- 10 -
For the same reason, Ms. Halterman-Scott’s reliance on McCormick and Williams
is unpersuasive. In these cases, the plaintiffs presented arguments and introduced evidence
from which it could be inferred that the defendants should have been aware of the
dangerous condition. McCormick v. Warren Cnty. Bd. of Educ., No. M2011-02261-COA-
R3-CV, 2013 WL 167764, at *6-8 (Tenn. Ct. App. Jan. 15, 2013) (affirming the trial court’s
holding that the defendant had constructive notice of a hole in a football field it when the
field was mowed one to three times per week and the hole was so deep that the plaintiff
fell in to her knee); Williams, 212 S.W.3d at 296 (reversing summary judgment because,
given the time required for moss to grow, constructive notice could be inferred under the
theory that there was a pattern of conduct, recurring incident, or general continuing
condition). The plaintiffs in those cases did not concede that there was no evidence
regarding the bases upon which constructive notice could be established. Here, Ms.
Halterman-Scott’s sole argument pertinent to the issue of notice in the trial court consisted
of the statement that “the area in question here was a large hole, located in a place where
the grass is cut regularly,” with support for this proposition consisting solely of
uncontextualized citing to the photograph of the hole. Accordingly, she relied upon an
uncontextualized photograph, as to which she did not cite further information. Ms.
Halterman-Scott presented no argument related to how long the hole had been present and
did not present evidence actually establishing how the grass was maintained.

Ultimately, because Ms. Halterman-Scott was required to prove constructive notice
of the defect and because she conceded the factual bases for such notice in her responses
to the statement of undisputed facts, the trial court did not err in granting summary
judgment.

IV.

Based on the reasoning above, we affirm the trial court’s order granting summary
judgment. Costs of this appeal are taxed to the appellant, Janine Halterman-Scott, for
which execution may issue if necessary.

_________________________________
JEFFREY USMAN, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10586292. Public record. Not legal advice.