Archie Wolfe v. William C. Felts, Jr.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 23, 2014 Session

ARCHIE WOLFE v. WILLIAM C. FELTS, JR. ET AL.

Appeal from the Circuit Court for Shelby County

No. CT00538211 Robert L. Childers, Judge

No. W2013-01995-COA-R3-CV - Filed May 29, 2014

In this premises liability action, Plaintiff/Appellant was allegedly injured when he

slipped and fell on the subject property. The trial court granted a directed verdict to the

Appellees, who are the property owners/occupiers. The basis for the directed verdict was

that Appellant failed to submit evidence from which a reasonable juror could conclude either

that the Appellees knew or should have known of a dangerous condition on the property, or

that Appellees caused or created a dangerous condition on the property. Discerning no error,

we affirm.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and D AVID R. F ARMER, J., joined.

Al H. Thomas and Joshua D. Thomas, Memphis, Tennessee, for the appellant, Archie Wolfe.

James E. Conley Jr., Memphis, Tennessee, for the appellees, William C. Felts, Jr., and Linda

M. Felts.

John H. Dotson, Memphis, Tennessee, for the appellees, Richard Johnson, Rebecca Lynn

Johnson, and Empire Hair Studios, L.L.C.

OPINION

Background

On January 9, 2011, Archie Wolfe (“Plaintiff,” or “Appellant”) was allegedly injured

when he slipped and fell on an icy street located outside property owned by William C. Felts,

Jr. and Linda M. Felts (together, the “Feltses”). The Feltses rent the subject property to

Richard Johnson and Rebecca Lynn Johnson (together, the “Johnsons”), who operate Empire

Hair Studios, L.L.C. (“Empire,” and together with the Johnsons and the Feltses,

“Defendants,” or “Appellees”) at that location.

On November 30, 2011, Mr. Wolfe filed a complaint against the Appellees, wherein

he alleged that a sprinkler system on the Appellees’ property had created a dangerous

condition on Appellees’ property. Specifically, Mr. Wolfe alleged that the sprinkler system

had begun operation despite the freezing temperatures and had caused ice to form on the

sidewalk in front of Appellees’ property. Because of the ice accumulation, Mr. Wolfe was

forced to bypass the sidewalk and walk in the street. However, ice had also accumulated on

the street, allegedly causing Mr. Wolfe to fall and sustain serious injuries. According to the

complaint, “[Mr. Wolfe’s] injuries were caused by negligent failure to properly manage the

sprinkler system.”

The case was tried to a jury on July 29, 2013. Although our record does not contain

a verbatim transcript of the hearing, it does contain portions of the deposition testimony of

Mr. Felts and Mr. Johnson. Although Mr. Felts testified at the trial, his testimony is not

contained in the record.

Mr. Felts testified that the sprinkler system required “winterization,” but he did not

elaborate concerning what “winterization” would entail. Mr. Felts further testified that he

was unaware that the sprinkler system was spraying water onto the property on the day of Mr.

Wolfe’s accident and, in fact, did not learn of the incident until he was served with the

lawsuit at issue in this appeal.

Mr. Johnson testified that although he was aware of the sprinkler system on the

property, he could not recall ever being informed that winterization of the system was

required. In addition, Mr. Johnson testified that he had never used the sprinkler system during

his tenancy on the property. Mr. Johnson also testified that from the time he rented the

property in the summer of 2010 to the date of the incident, he never observed the sprinkler

in operation other than on the date of the incident. Mr. Johnson testified that, [] on the

morning of January 9, 2011, he received a call that there had been an accident on the

property. The caller also opined that there appeared to be a burst water pipe on the property.

When Mr. Johnson arrived at the property, he discovered that the sprinkler system, and not

a burst pipe, was the cause of the water that had caused ice to form. According to Mr.

Johnson, he first turned the water off to the entire property. Mr. Johnson then proceeded to

the sprinkler system control box to investigate. He found the door of the box “ajar,” and the

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valve inside in the “open” position. Mr. Johnson used a wrench to turn the valve to the

closed position, which stopped the flow of water to the sprinkler head.

At the close of Mr. Wolfe’s proof, Appellees moved for a directed verdict. As

grounds for the motion, Appellees asserted that Mr. Wolfe had failed to introduce any

evidence concerning what would constitute proper sprinkler management or maintenance so

as to establish that improper management or maintenance had caused the sprinkler to

malfunction. The Appellees further argued that there was no proof that the Appellees knew

or should have known of the hazardous condition, i.e., the ice, on the property at the time of

the accident. The Appellees asserted that no evidence showed any prior problems with the

sprinkler system that would put the Appellees on notice that it could malfunction. The trial

court took the matter under advisement and directed the parties to return to court to argue the

motion the following morning.

On July 30, 2013, the trial court orally granted the motion for a directed verdict in

favor of the Appellees. On August 2, 2013, the trial court entered a written order granting the

Appellees’ motion for a directed verdict and incorporating by reference its previous oral

ruling. According to the Court:

I have considered the evidence that the Plaintiff has

introduced in this case that consists of the testimony of the

Plaintiff and Mr. [] Felts [] and Mr. [] Johnson.

In a motion for [a] directed verdict, the Court is required

to indulge every reasonable inference in favor of the Plaintiff’s

theory and disregard or ignore any opposing inferences.

The Plaintiff, Mr. Wolfe, testified that he was out

walking early one morning and he saw the sprinkler system on

at the [Appellees’] premises.

Mr. Johnson’s testimony was that he has no experience

with an underground sprinkler system. He never set the clock or

did anything with the sprinkler system. He knew where the

controls were located in the corner of the yard. He never took

the top off the control box. And on January the 9th, 2011 was

the first time that he looked at the control box.

After he went to the premises on the morning of January

9th, 2011, he went to the sprinkler control box to try to figure

out why the sprinkler was going off. He discovered that the

cover was already off one of the control boxes and was laying

in the vicinity of the control box.

There is no proof in the record how the cover came off of

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the box and no proof that the [Appellees] had notice or, in the

exercise of reasonable care, should have had notice that the

cover was off of the box before the sprinkler inadvertently came

on.

Mr. Felts testified that he knew the system had to be

winterized. He did not testify or explain what winterizing means

or what is involved in winterizing. There is no proof that

winterizing includes turning the water supply off to the sprinkler

system.

Mr. Felts never testified that the water supply was turned

off when it had to be winterized. The jury would have to

speculate that winterizing means turning off the water supply to

the system.

Based on Plaintiff’s proof, the inference that the failure

to winterize, which I think I understand the Plaintiff’s theory to

be, there’s the inference that the failure to winterize caused the

system to turn on inadvertently is not a reasonable inference

absent proof of what winterizing means.

Absent that proof, the Plaintiff’s only proof is that when

he approached the premises, the sprinkler system was on.

The jury would have to speculate about the cause of the

sprinkler system inadvertently coming on. There’s no proof of

the cause of the sprinkler system coming on and no proof that

the [Appellees] had or reasonably should have had notice that

the sprinkler system had inadvertently come on on the morning

of January 9th, 2011.

The motion for [a] directed verdict is granted. . . .

Mr. Wolfe now appeals.1

1

While this appeal was pending, several procedural issues arose. First, on January 22, 2014, this

Court granted the Appellees’ Joint Motion to Correct the Record on Appeal. In this motion, the Appellees

asserted that the depositions of Mr. Wolfe and Jennifer Holbourn had been improperly transmitted to this

Court as part of the record on appeal. The Appellees asserted that these depositions were not properly

included in the record because they were not read into evidence at trial. Thereafter, on January 24, 2014, the

Appellees filed another Joint Motion to Strike References in Mr. Wolfe’s appellate brief to evidence that was

not properly part of the record. Specifically, the Appellees asserted that Mr. Wolfe’s appellate brief

contained references to Mr. Wolfe’s deposition testimony, which testimony was not properly a part of the

record on appeal. Mr. Wolfe did not timely file a response to the Motion. This Court granted the Appellees’

Joint Motion on February 13, 2014. Accordingly, in this appeal, we will not consider any references to Mr.

Wolfe’s deposition testimony.

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Issues Presented

Mr. Wolfe raises one issue, which is taken, and slightly altered, from his brief:

Did the Circuit Court err in granting Appellees’ motion for a

directed verdict on the basis that there was no “proof that

winterizing includes turning the water supply off to the sprinkler

system” and that, therefore, the “jury would have to speculate

that winterizing means turning off the water supply to the

system.”

Standard of Review

According to the Tennessee Supreme Court,

This Court reviews the trial court’s decision to grant a

directed verdict de novo, applying the same standards as the trial

court. Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815,

819 (Tenn. 2003). We will affirm a directed verdict “only when

the evidence in the case is susceptible to but one conclusion.”

Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (citing

Eaton [v. McLain], 891 S.W.2d [587,] 590 [(Tenn. 1994)]). We

must “take the strongest legitimate view of the evidence

favoring the opponent of the motion,” and must accept all

reasonable inferences in favor of the nonmoving party.

[Childress, 74 S.W.3d at 328.] We may affirm the motion “only

if, after assessing the evidence according to the foregoing

standards, [we] determine[ ] that reasonable minds could not

differ as to the conclusions to be drawn from the evidence.” Id.;

see also Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn.1978).

Biscan v. Brown, 160 S.W.3d 462, 470 (Tenn. 2005).

Analysis

The issue in this case concerns whether Mr. Wolfe submitted evidence from which

a reasonable juror could conclude that the Appellees were negligent. The specific issue in

this case concerns premises liability. This Court recently explained the prima facie elements

of a premises liability action:

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To establish a prima facie case for premises liability

based upon negligence, the plaintiff must prove (1) a duty of

care owed by the defendant to the plaintiff; (2) conduct by the

defendant that was below the standard of care, amounting to a

breach of a duty; (3) an injury or loss; (4) causation in fact; and

(5) proximate causation. See, e.g., Coln v. City of Savannah,

966 S.W.2d 34, 39 (Tenn. 1998), overruled on other grounds by

Cross v. City of Memphis, 20 S.W.3d 642, 644 (Tenn. 2000).

For the premises owner to be liable for a dangerous and

defective condition on his property, the plaintiff must prove

each of the elements of negligence and either (1) that the

condition was caused or created by the premises owner or his

agent, or (2) if the condition was created by someone other than

the owner or his agent, that the premises owner had actual or

constructive notice of the dangerous or defective condition prior

to the accident. Blair v. West Town Mall, 130 S.W.3d [761,] at

764 [(Tenn. 2004)]. A plaintiff can establish constructive notice

by showing “a pattern of conduct, a recurring incident, or a

general or continuing condition indicating the dangerous

condition’s existence,” making the dangerous condition

reasonably foreseeable to the premises owner. Id. at 765–66. In

the alternative, constructive notice can be established by proving

that the dangerous condition existed for a sufficient length of

time that the premises owner, by exercising due care, should

have discovered the dangerous condition. Simmons v. Sears,

Roebuck & Co., 713 S.W.2d 640, 641–42 (Tenn. 1986); see

also Blair, 130 S.W.3d at 764, 766 n.1.

Williams v. Linkscorp Tennessee Six, L.L.C., 212 S.W.3d 293, 296 (Tenn. Ct. App. 2006).

It appears that Mr. Wolfe concedes, in his brief, that none of the Appellees had either

actual or constructive notice of the dangerous condition on the property prior to Mr. Wolfe’s

accident. See Blair v. West Town Mall, 130 S.W.3d at 764. Indeed, from our review of the

record, Mr. Wolfe submitted no evidence to show that any of the Appellees had either actual

or constructive notice of the allegedly dangerous condition on the property prior to Mr.

Wolfe’s accident. Rather, Mr. Wolfe argues that the Appellees were negligent because “the

condition was caused or created by the premises owner or his agent.” Id. Specifically, in his

brief, Mr. Wolfe argues that regardless of what the term “winterizing” means, the negligence

in this case involves “allowing water to spray in freezing temperatures, something that cannot

happen if the water source to the sprinkler system is properly shut off, whether or not this is

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done as part of an overall ‘winterization’ effort.” Accordingly, Appellees argue that the trial

court’s focus on “winterization” was misplaced.

A plaintiff is not required to prove a premises owner had prior notice of a dangerous

condition if the premises owner created the condition that caused a plaintiff’s injury.

Longmire v. Kroger Co., 134 S.W.3d 186, 189 (Tenn. Ct. App. 2003) (citing Stringer v.

Cooper, 486 S.W.2d 751, 757 (Tenn. Ct. App. 1972)). As explained in American

Jurisprudence:

The rule requiring actual or constructive knowledge of

the dangerous condition on the part of the [property] owner in

order to hold him or her liable does not apply where the

dangerous condition was caused or created by the [property]

owner or by persons for whose conduct the [property] owner is

responsible; in other words, where the condition is traceable to

an act of the [property] owner or his or her employees, it is not

necessary to prove that the [property] owner was aware of the

condition in order to hold him or her liable for injuries resulting

therefrom. Thus, . . . a store owner was properly held liable for

injuries sustained by a customer in a slip-and-fall accident in

running water, where there was sufficient evidence from which

one could infer that the store’s negligent maintenance of the

drainage system in the store created the dangerous condition, so

that there was no need for proof that the owner had notice of the

condition.

62A Am. Jur. 2d Premises Liability § 482 (footnotes omitted). Accordingly, the resolution

of this case turns on whether there is “sufficient evidence from which one could infer that

the [Appellees’] negligent maintenance of the [sprinkler] system . . . created the dangerous

condition.” Id. (citing Wal-Mart Stores, Inc. v. Rolin, 813 So.2d 861 (Ala. 2001)). However,

“[w]hen there is a complete absence of proof as to when and how the dangerous condition

came about, it would be improper to permit the jury to speculate on these vital elements.”

Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47 (Tenn. Ct. App. 1995) (citing

Paradiso v. Kroger Co., 499 S.W.2d 78 (Tenn. Ct. App.1973)). “A case does not have to be

submitted to a jury where there is a mere spark or glimmer of evidence. There must be some

evidence of a material and substantial nature.” Ogle, 919 S.W.2d at 47 (citing Sadek v.

Nashville Recycling Co., 751 S.W.2d 428, 431 (Tenn. Ct. App.1988)).

Compared to cases involving allegations that a property owner had actual or

constructive notice of a dangerous condition on their property, few cases in Tennessee have

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dealt with premises liability predicated on a theory that the property owner caused or created

the dangerous condition on the property. See Workman v. Wal-Mart Stores East, Inc., No.

M2001-00664-COA-R3-CV, 2002 WL 500988, at *2 (Tenn. Ct. App. April 4, 2002) (“In

reviewing cases of this type it is rare indeed when a premises liability case is based on a

dangerous condition or defect created by the business owner. The vast majority of these cases

fall into the second category of claims, where the defect or condition is caused by someone

else and the assertion is that the business owner was negligent in failing to address the

dangerous condition or defect after he had actual or constructive notice of the dangerous

condition or defect.”). In fact, Mr. Wolfe cites no cases in his brief to support his assertion

that the directed verdict was improperly granted in this case.

In contrast, the Appellees assert that the facts presented here are analogous to the

situation presented in Hardesty v. Service Merchandise, 953 S.W.2d 678 (Tenn. Ct. App.

1997). In Hardesty, the plaintiff asserted that she tripped over a bed rail that was on display

in the defendant store. At trial, neither the plaintiff or her companion on the day of the

accident were able to testify as to how the rail came to be in the aisle. The jury subsequently

found the defendant liable for $400,000.00 in damages to the plaintiff and her husband. The

trial court, however, found that the jury verdict was “so excessive” that a new trial was

required. After the case was transferred to a different trial judge, the defendant filed a motion

for summary judgment on the plaintiff’s premises liability claim, citing the plaintiff’s trial

testimony in which she could not testify as to the cause of the rail being in the aisle. The trial

court granted the defendant’s summary judgment motion. On appeal, this Court affirmed,

concluding:

Plaintiff[] ha[s] been unable to show that [d]efendant

created the dangerous condition by placing the bed rail in the

aisle. Both [plaintiff] and her daughter . . . admitted that they did

not know who placed the bed rail in the position it was in when

[plaintiff] fell over it. Similarly, [p]laintiff[] ha[s] not produced

any evidence to suggest that [d]efendant had actual knowledge

of the condition prior to the accident nor have they shown how

long the bed rail had been in the aisle. In fact, both [daughter]

and [plaintiff] admitted at trial and in their depositions that they

did not know how long the bed rail had been in the aisle.

It appears that [p]laintiff[ is] unable to establish a prima

facie case of negligence for [plaintiff’s] injuries because they

are unable to offer any proof that [d]efendant either knew of or

had constructive knowledge of the allegedly dangerous

condition.

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Id. at 684.2 Thus, the plaintiff in Hardesty failed to present sufficient evidence to allow the

jury to conclude that the defendant had created the dangerous condition. As such, any

conclusion by the jury that the defendant had created the dangerous condition would have

been impermissible speculation. See Ogle, 919 S.W.2d at 47.

In a similar case cited in American Jurisprudence, Wal-Mart Stores, Inc. v. Rolin, 813

So.2d 861 (Ala. 2001), the Alabama Supreme Court held, in contrast to Hardesty, that the

plaintiff had presented sufficient evidence that took the question of whether the defendant

caused or created the dangerous condition out of the realm of speculation. Id. at 863–65. In

Rolin, the plaintiff sought damages from defendant Wal-Mart for injuries he undisputedly

sustained after tripping over a barbeque grill display in a Wal-Mart store. Id. at 863.

According to the Alabama Supreme Court, it was undisputed that Wal-Mart had constructed

the display using concrete stepping stones. Id. The jury eventually returned a verdict in favor

of the plaintiff and Wal-Mart appealed, arguing that “evidence demonstrated that Wal-Mart

did not create a hazard and did not know that a hazard existed.” Id.

The Alabama Supreme Court, however, disagreed. According to the Court, the

plaintiff need not show that Wal-mart had actual or constructive notice of a dangerous

condition on its property so long as the plaintiff could show that Wal-Mart or its agents

caused or created the dangerous condition. Id. at 864. Instead, in that situation, the Alabama

Supreme Court held that “the courts presume notice.” Id. at 864 (quoting Wal-Mart Stores,

Inc. v. McClinton, 631 So.2d 232, 234 (Ala. 1993)). The Rolin Court analogized the

situation to when a fixture in a store protrudes into the aisle, see McClinton, 631 So.2d at

234 (involving a gun cabinet protruding into the aisle of a store), or when the alleged defect

is part of the premises, such as loose flooring. See Mims v. Jack’s Restaurant, 565 So.2d

2

Special Judge Paul G. Summers filed a separate concurring opinion encouraging the Tennessee

Supreme Court to “revisit this area of law.” While Special Judge Summers did not disagree with the

majority’s conclusion based upon the law as it stood, Judge Summers questioned whether Tennessee law

placed an insurmountable burden on plaintiffs in premises liability action. See Hardesty, 953 S.W.2d at 685

(Summers, J., concurring) (arguing that the “rules place an insurmountable burden on the innocent injured

plaintiff”).

The Tennessee Supreme Court, however, denied certiorari in Hardesty on June 30, 1997. Further,

our courts have consistently reaffirmed the requirement in premises liability cases that the plaintiff bears the

burden to prove either that the property owner created or caused the dangerous condition or had actual or

constructive notice of a dangerous condition created by a third party. See, e.g., Blair v. West Town Mall, 130

S.W.3d 761, 764 (Tenn. 2004); Piana v. Old Town of Jackson, 316 S.W.3d 622, 630 (Tenn. Ct. App. 2009);

Berry v. Houchens Market of Tennessee, Inc., 253 S.W.3d 141, 146–47 (Tenn. Ct. App. 2007); Williams

v. Linkscorp Tennessee Six, L.L.C., 212 S.W.3d 293, 296 (Tenn. Ct. App. 2006); Lawson ex rel. Lawson

v. Edgewater Hotels, Inc., 167 S.W.3d 816, 824 (Tenn. Ct. App. 2004). Accordingly, the holding in

Hardesty remains good law.

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609, 610 (Ala.1990) (involving a loose threshold at the door of the defendant’s restaurant).

Because it was undisputed that Wal-Mart created the display that allegedly caused the

plaintiff to trip, the Alabama Supreme Court held that the plaintiff had made out a prima

facie claim for premises liability against Wal-Mart. Rolin, 813 So.2d at 864–65.

Accordingly, the Court held that the trial court properly allowed the issue to be considered

by the jury. Id.

Turning to the facts in this case, we must agree with the trial court that Mr. Wolfe

failed to submit any evidence that would take the question of negligence out of the realm of

speculation. The record on appeal contains the deposition testimony of both Mr. Felts and

Mr. Johnson. Mr. Felts testified that he was aware of the sprinkler system and was aware that

the sprinkler system required winterization. However, neither Mr. Felts nor any other witness

testified as to what was required to winterize a sprinkler system. Although Mr. Johnson

testified that he had a “general conversation” with Mr. Felts regarding the sprinkler system,

nothing in Mr. Johnson’s testimony indicates that he was aware of any need to winterize the

system or that he was aware of how to perform that action prior to Mr. Wolfe’s accident.

Accordingly, the trial court correctly concluded that the jury would be required to speculate

as to what was required in order to winterize a sprinkler system.

Further, Mr. Johnson’s undisputed testimony indicates that the sprinkler was operating

on the day of the incident because the control valve was in the “open” position, rather than

the “closed” position. Unlike in Rolin, here it is disputed as to what caused the sprinkler

system to turn on, resulting in the dangerous condition on the date of the incident. While Mr.

Wolfe asserts that the condition was created by a malfunction in the sprinkler system that

could have been averted by turning the water supply to the sprinkler system off, there is

simply no affirmative evidence in the record to support that assertion. Having considered Mr.

Johnson’s testimony, the cause of the sprinkler system turning on may possibly have been

the result of a malfunction, or possibly the result of the actions of a third party. Indeed,

because the evidence shows that the tenant of the property did not utilize the sprinkler

system, there is no evidence in the record that the water supply to the sprinkler system was,

in fact, not turned off by one of the Appellees prior to the incident at issue, and then turned

on by a third party. As such, it would be pure speculation for the jury to conclude that the

dangerous condition (i.e., the sprinkler operating in freezing conditions) was actually caused

or created by any negligence on the part of the Appellees. Consequently, this case is more

closely analogous to Hardesty, where there was simply no evidence presented by the plaintiff

regarding the cause of the dangerous condition. Under these circumstances, the jury would

be required to speculate as to the cause of dangerous condition. We recognize, as did Special

Judge Summers in the Hardesty Opinion, that the prevailing law creates a stringent

framework that a plaintiff must navigate in order to prevail in a premises liability action,

particularly for Mr. Wolfe, who was allegedly injured as a result of the dangerous condition

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and is unable, himself, to testify as to the cause of that condition. See Hardesty, 953 S.W.2d

at 685 (Summers, J., concurring). However, applying well-established Tennessee law to the

facts of this case, even considering Mr. Wolfe’s evidence in the light most favorable to his

case, and disregarding any countervailing proof, the evidence simply does not allow a

reasonable trier of fact to make a reasonable inference that the dangerous condition was

caused or created by the Appellees. Accordingly, the judgment of the trial court is affirmed.

Conclusion

The judgment of the Circuit Court of Shelby County is affirmed and this cause is

remanded to the trial court for further proceedings consistent with this Opinion. Costs of this

appeal are taxed to Appellant Archie Wolfe, and his surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

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