Kenneth Larry Mangum v. Golden Gallon Corporation

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FILED

March 5, 1999

Cecil Crowson, Jr.

KENNETH LARRY MANGUM, ) Appellate Court Clerk

)

Plaintiff/Appellant, )

) Franklin Circuit

VS. ) No. 9739-CIV

)

) Appeal No.

GOLDEN GALLON CORPORATION, ) 01A01-9709-CV-00459

)

Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT FOR FRANKLIN COUNTY

AT WINCHESTER, TENNESSEE

THE HONORABLE BUDDY PERRY, JUDGE

For the Plaintiff/Appellant: For the Defendant/Appellee:

James D. Lane, II H. Richard Marcus

Ray, VanCleave & Jackson Fleissner, Cooper, Marcus & Quinn

Tullahoma, Tennessee Chattanooga, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This premises liability action involves a disabled person who was injured when he

tripped on a floor m at while entering a conv enience m arket in De cherd. Th e patron’s su it

against the mark et, originally filed in the Cha ncery Co urt for Franklin County but later

transferred to the Circuit Court for Franklin County, alleged that the market had created a

dangerous condition, especially for patrons us ing crutches, by placing the floor mat at its

entrance. The market moved for summary judgment, relying on the deposition testimony of

the patron, two employees of the market, and the market's surveillance camera videotape of

the patron’s fall. The trial court granted the motio n, and th e patron has app ealed. W e have

determined that the market is entitled to a judgment as a matter of law and, accordingly,

affirm the su mma ry judgm ent.

I.

Mr. Mang um is an accountant employed by Aerospace Center Support at the Arnold

Engineering Development Center near Tullahoma. For many years, he has been requ ired to

wear leg braces a nd to use L oftstrand crutches because of a congenital birth defect that

caused deformity and muscle weakness in his legs. Mr. Mangum ’s disability makes it

difficult for him to lift up his legs when he walks, and he must carefully negotiate steps,

doorways, and other obstacles to avoid falling. He has, howev er, becom e adept at us ing his

crutches. He is also a ware of h is limitations and tries to avoid situations that might cause

him to fall.

In addition to his regular employment, Mr. Mangum performs accounting work for

private clients. He took a vac ation day fro m wo rk on No vembe r 10, 1995 , to meet w ith one

of these clients. After concluding his meeting around mid-day, he stopped at the Golden

Gallon Marke t on High way 41 A in De cherd to use the restroom and to purchase a beer that

he planned to drink later with his lunch.

Patrons enter the Golden Gallon Market through double glass doors that o pen only to

the outside . Just inside the doors is a heavy, rubber-backed red floor mat with a black rubber

border that is plainly visible through the glass do ors. The m at, which is a pproxim ately six

feet long and four feet wide, is supplied by National Dust Control Service. It is placed at the

front door to protect the tile floor from heavy foot traffic and to provide the pa trons with

somewh ere to wipe the ir shoes in inc lement w eather. The edge of the mat is app roximate ly

one inch from the metal d oor jam o f the front do ors. The m at itself consists of industrial

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grade carpet with little or no nap. The market’s emp loyees are responsible for keeping the

mat clean and for making sure that it is lying flat on the floor without wrinkles or creases that

migh t cause p atrons to fall.

Mr. Mangum parked his automobile close to the market’s front doors. After

discarding some tras h in an outside container, he entered the market through the right hand

glass door. Mr. Mangum pulled the door toward him, held the door open with this right

crutch, and then p laced his left crutch inside the store. Then he pulled his feet inside the

store and brought his right crutch into the market. Immediately after Mr. M angum began to

move forward, the toe of his left shoe caught the edge of the mat and he fell forward into the

market. He fractured his left shoulder in the fall. The entire incident was videotaped by the

mark et’s surv eillance came ra.

The employees of the market came to M r. Mangum ’s assistance. H e declined th eir

offer to summon an ambulance. After collecting himself on the floor for several minutes,

Mr. Mang um ask ed the em ployees to a ssist him to arise from the floor, to bring him the beer

he had originally stopped to purchase, and to return to his automobile. Although shak en, Mr.

Mangum did not leav e the mar ket until he p aid for the be er. After brie fly resting in h is

automobile, Mr. Man gum drove himself back to M urfeesboro. Upon arriving ho me, Mr.

Mangum realized that h e was inju red and d rove him self to the em ergency ro om in

Murf reesbo ro.

In April 1996, M r. Mangum filed suit against the Golden Gallon Corporation

(“Golden Gallon”) in the Chancery C ourt for Franklin County. After the suit was transferred

to the Circuit C ourt for Fran klin County, Golden Gallon moved for summary judgment

asserting that Mr. M angum could not p rove the ex istence of a d angerou s condition, th at it did

not owe a duty to warn Mr. Man gum of the con dition of the mat, and that M r. Mangum ’s

equal or superior knowledge of the mat’s condition barred his recovery. Golden Gallon

supported its motion with Mr. Mangum’s deposition, the depositions of the market’s manager

and assistant manager, and the videotape of Mr. Mangum’s fall. The trial court granted the

summ ary judgm ent, and M r. Mang um has perfected th is appeal.

II.

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We turn first to the standard by whic h we rev iew a trial cou rt’s decision to grant a

summary judgment. Summary judgments enjoy no presumption of correctne ss on appe al.

See City of Tullahoma v. Bedford County , 938 S.W .2d 408, 41 2 (Tenn. 1 997); McClung v.

Delta Square L td. Partners hip, 937 S.W.2d 891, 894 (Tenn. 1996). Accordingly, we must

make a fresh determ ination con cerning w hether the re quireme nts of Tenn. R. Civ. P. 56 have

been satisfied . See Hunter v. Brown, 955 S.W .2d 49, 50-5 1 (Tenn. 1 997); Mason v. Seaton,

942 S.W.2d 470, 472 (Tenn. 19 97). Sum mary jud gments are appropriate only w hen there

are no genuine factual disputes with regard to the claim or defense embodied in the motion

and wh en the m oving par ty is entitled to a judgment as a matter of law. See Tenn. R. Civ.

P. 56.04; Moon v. St. Thomas Hosp., ___ S.W.2d ___, ___ (Tenn. 1998)1 ; Bain v. W ells, 936

S.W.2d 618, 622 (Tenn. 19 97); Carvell v. Bottoms, 900 S.W.2d 2 3, 26 (Tenn. 1995 ).

Courts presented with a summary judgment motion must view the evidence in the

light most favo rable to the n onmov ing party and mu st also draw all reasonab le inferences in

the nonm oving p arty’s fa vor. See Robinson v. Omer, 952 S .W.2d 423, 426 (Tenn. 1997 );

Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996). Thus, a summary judgment

should be granted only when the undisputed facts reasonably support one conclusion – that

the movi ng part y is entitle d to a jud gmen t as a m atter of la w. See McCall v. Wilder, 913

S.W.2d 150, 153 (Tenn. 19 95); Carvell v. Bottoms, 900 S.W.2d at 26. A pa rty may o btain

a summary judgme nt by dem onstrating tha t the nonm oving par ty will be un able to prove an

essential eleme nt of its ca se, see Byrd v. H all, 847 S.W.2d 208, 212-13 (Tenn. 1993),

because the inability to prove an essential element of a claim necessarily renders all other

facts imm aterial. See Alexander v. Mem phis Individual Practice Ass’n , 870 S.W.2d 278, 280

(Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729

(Tenn. Ct. App . 1995).

III.

Mr. Mang um w ill recover in this premises liability action only if he proves (1) that

Golden Gallon ow ed him a duty of care , (2) that Gold en Gallon ’s conduc t fell below the

applicable standard of care and amounted to a breach of its duty, (3) that he suffered an

injury, (4) that Golden Gallon’s conduct was the cause-in-fact of his injury, and (5) that

Golden Gallon’s conduct was the pro ximate or legal c ause of his injur y. See Coln v. City of

Savannah, 966 S.W.2d 34, 39 (Tenn. 1998). Mr. Mangum’s failure to demonstrate that he

will be able to prove each of these elem ents at trial will entitle Golden Gallon to a su mmary

judgm ent. See Byrd v. Hall, 847 S .W.2d at 215- 16.

1

Moon v. St. Thomas Hosp., No. 01S01-9710-CV-00218, 1998 WL ______, at * ___ (Tenn.

Dec. 21, 1998) (For Publication).

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As in other premises liability cases, our inquiry begins with determining the existence

and nature of Golden Gallon’s duty. As a g eneral matter, the own er or possessor of the

premises owes a general duty to its customers to exercise reasonable care to make the

premises safe. See Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984). More specifically,

the owner or possessor has a duty to remove or to warn customers of any la tent or hidden

dange rous co ndition that the o wner k nows or shou ld reaso nably k now a bout. See Smith v.

Inman Realty Co., 846 S.W.2d 819, 823 (Tenn. Ct. App. 1992). Whether the owner’s or

possessor’s duty encompasses the duty to guard against the acts set forth in the complaint

involves an analysis of the foreseeablity of the risk to which the customer was expos ed. See

Coln v. City of Savannah, 966 S.W .2d at 43; Eaton v. M cClain, 891 S.W.2d 587, 594 (Tenn.

1994).

It is axioma tic that no du ty can arise in cases of this sort unless a dangerous condition

exists. Mr. Mangum’s complaint, as we understand it, contains alternative allegations

concerning the existence of a dangerous condition. First, Mr. Mangum asserts that placing

the mat at the market’s front door created a dangerous condition for the market’s patrons,

especially for its disabled patrons. Second, he asserts that the market employees had

permitted the mat to bunch up or wrinkle and, therefore, that a wrinkled mat was a dangerous

condition for all the market’s patrons.

T HE F LOOR M ATS T HEMSELVES

We can quickly dispose of Mr. Mangum’s first theory. Placing a mat at the entrance

of a business e stablishme nt does no t create a dan gerous co ndition as a matter of law. The

proof in this record, like common experience, demonstrates that mats like the one involved

in this case are ubiquitous. They are frequently placed in commercial and business

establishm ents in high traffic areas to protect the floor and to provide persons entering the

premises with somewhere to wipe their shoes. Mr. Mangum himself concedes that he

encounters these ma ts daily at his place of employment and elsewhere. Accordingly, without

some eviden ce that th ese larg e, rubbe r-back ed floo r mats, e ven w hen pro perly p laced, a re

inherently dangerous, M r. Mangum’s claim that their use creates a dangerous condition must

fail as a matter of law.2

2

The record contains evidence of only one prior incident involving a patron who tripped over

the mat. The market’s assistant manager testified that a long time before Mr. Mangum’s fall, a

female patron stumbled but did not fall when she caught the edge of the mat with her foot and

“flipped it up.” The assistant manager also stated that it was not easy to flip up the edge of the mat

because of the “real thick rubber” on the bottom of the mat. In light of the number of patrons

entering and leaving the premises on a daily basis, no reasonable person would conclude that this

single incident establishes that the mat creates a dangerous condition.

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Even if these mats are not dangero us to the gen eral public, M r. Mang um asse rts that

they are dangerous conditions for persons with disabilities. However, Mr. Mangum has

failed to demo nstrate that he will be able to substantiate this assertion at trial. He conceded

in his deposition that he encou nters these m ats on a daily basis and that he navigates across

them without incident. In ad dition, he has not proffere d any evid ence rega rding the

frequency of incidents in which mats of this sort cause persons with disabilities to fall or that

the use of m ats such as th e one invo lved in this ca se is contrary to any state or federal

accessibility requirement or building code. Thus, w e conclude that Mr. Mangum has

likewise failed to demonstrate that he will be able to prove at trial that properly placed floor

mats create a dangerous condition for persons with disabilities.

G OLDEN G ALLON’S M AINTENANCE OF I TS F LOOR M ATS

Mr. Mangum’s second theory is that Golden Gallon’ s employ ees did no t properly

maintain the mat because they permitted it to bunch up or wrin kle and tha t their failure to

maintain the mat created a dangerous condition. For the purposes of this claim, we find that

owners and possessors of property who place floor mats at the entrance to their buildings

have a duty to maintain these mats in a reasonably safe condition. We also find that an

imprope rly maintained floor mat – one that is wrinkled, bunche d up, worn throu gh, or torn

– could foreseeably cause persons, especially disabled persons with lim ited mobility,

entering or leaving the building to fall. Therefore, an improperly maintained mat could be

a dangerous condition that could expose the owner or possessor of the premises to liability.

The mere fact that Mr. Mangum tripped and fell when he entered the market is not

proof th at Gold en Ga llon wa s neglig ent. See Williams v. Jordan, 208 Tenn. 456, 464, 346

S.W.2d 583, 586 (1961); Underwood v. HC A Health Servs. of Tenn., Inc., 892 S.W.2d 423,

426 (Tenn. Ct. App. 1994) (stating that evidence of injury alone is not sufficient to prove that

the injury was caused by someone’s negligence). Thus, even if an improperly maintained

floor mat could be a dangerous condition, Mr. Mangum cannot succeed without proof that

the Golden Gallon employees did not properly maintain the floor mat and that the floor mat

was in a dangerous co ndition when he entered the marke t. As we view this rec ord, Mr.

Mangum failed to demonstrate that he will be able to carry his burden o f proof with regard

to either issue.

Both Golden Gallon employees who were at the market whe n Mr. Mangum fell stated

in their depositions that they have a policy of making sure that the floor mat is c lean, that it

is in the proper location, and that it is lying flat on the floor. The manager testified that the

policy is to keep the mat inside the store and to make sure that it “stays swept” and “flat.”

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The assistant manager testified that she had the resp onsibility on a daily basis to inspect the

mat, to sweep it, and to “make sure . . . it's in position.” She also testified that she could see

the mat from her position at the cash register and that it had not bunched up against the door

when M r. Mang um ente red the m arket.

The videotape of Mr. Mangum’s fall buttresses the employees’ testimony. It begins

five minutes before M r. Mangum entered the market and contains a clear view of the mat on

the floor adjacent to the door. The mat is lying flat on the floor without any apparent

wrinkles or creases and without being bunched up against the door jam. Prior to Mr.

Mangum ’s arrival at the m arket, four cu stomers e ntered or exited the market without

difficulty and without d isturbing the m at.

Mr. Mangum entered the market through the right hand door. He held the door open

with this right crutch and then moved his left crutch inside the door. As he brought his feet

into the market, the toe of his left shoe dragged unde r the front edge of the m at. When M r.

Mangum moved his weight forward, both of his feet became entangled in the mat, causing

him to lose his footing and to fall on his left shoulder. The videotape shows that the mat

returned to its original position after Mr. Mangum fell. Mr. Mangum remained in the market

for approximately eleven minutes following his fall. After paying for his beer, he left the

store unaided by walking across the mat where he had tripped and out the same door through

which he had entered.

Mr. Mangum could not refute the testimony of the market’s employees that the mat

was lying fla t on the f loor. He admitted that he could not state under oath whether the mat

was flat or not. However, he believes that the mat “must have been up some” because, as he

explained, “I walk over those m ats every day in going in and out of stores of this type, going

in and out of my office, any kind of department stores, and I’ve never pushed one of them

[the mats] up before.” Mr. Mangum also conceded that if there were no wrinkles or creases

in the m at, Gold en Ga llon did not do a nythin g that w ould ha ve cau sed him to fall.

We have considered the undisputed facts in the light most fa vorable to Mr. Mangum

and have determined that reasonable minds can only conclude, based on these facts, that

Golden Gallon’s p lacemen t and ma intenance o f the floor m at at the entran ce to its mar ket did

not create a dangerous condition. In the absence of proof of a dang erous con dition on its

premises, Golden Gallon is entitled to a judgment as a matter of law because Mr. Mangum

has failed to demonstrate that he will be able to prove one of the essential elements o f his

claim o n whic h he w ill bear th e burde n of pro of at trial.

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IV.

We affirm the su mma ry judgm ent and remand the case to the trial court for further

proceedin gs consisten t with this opinion. We tax the costs of this appeal to Ke nneth Larry

Mangum and his surety for which execution, if necessary, may issue.

_____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

____________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

____________________________________

WALTER W. BUSSART, SPECIAL JUDGE

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