Homer McCaig v. Roy L. Whitmore

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 19, 2016 Session

HOMER McCAIG, ET AL. v. ROY L. WHITMORE

Appeal from the Circuit Court for Carroll County

No. 13CV38 Donald E. Parish, Judge

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No. W2015-00646-COA-R3-CV – Filed February 22, 2016

_________________________________

This is a premises liability case. Appellant Homer McCaig sustained multiple injuries while

operating an all-terrain vehicle (ATV) on Appellee Roy Whitmore‘s property. The trial court

determined that Mr. Whitmore owed no duty to the McCaigs based on the Tennessee

Recreational Use Statute (―TRUS‖), Tennessee Code Annotated Sections 70-7-101 et seq.

The trial court granted summary judgment in favor of the Appellee based on its determination

that no exceptions to the statute were applicable. Discerning no error, we affirm and remand.

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

and Remanded.

KENNY ARMSTRONG, J. delivered the opinion of the Court, in which ARNOLD B. GOLDIN, and

BRANDON O. GIBSON, JJ., joined.

Adam M. Nahmias, Memphis, Tennessee, for the appellants, Homer McCaig and Kelly

McCaig.

Bradford D. Box, Nathan E. Shelby, and Adam P. Nelson, Jackson, Tennessee, for the

appellee, Roy L. Whitmore.

OPINION

I. Facts and Procedural History

The material facts in this case are not in dispute. On July 7, 2012, Appellant Homer

McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Appellee

Roy Whitmore‘s property. Mr. Whitmore‘s property consists of approximately seven acres

of land and a residence. With the exception of the residence, the property is largely

undeveloped. Mr. McCaig and his family were attending a social gathering at Mr.

Whitmore‘s home when the accident occurred. Mr. Whitmore took rides with Mr. McCaig‘s

wife and son, providing both with detailed instructions on the proper operation of the ATV.

Mr. Whitmore also provided Mrs. McCaig and her son instructions on areas to avoid

including the lawn and the concrete driveway. Mr. McCaig neither asked for nor received

the same detailed instructions from Mr. Whitmore. While riding Mr. Whitmore‘s ATV, Mr.

McCaig flipped the vehicle, which landed on top of him. Mr. McCaig sustained significant

injuries, including nerve damage to his spine, legs, feet, and hands that prevent him from

walking unassisted.

On July 3, 2013, Mr. McCaig and his wife Kelly (together, ―Appellants‖) filed the

instant lawsuit against Mr. Whitmore. The McCaigs allege that Mr. Whitmore is liable to

them for negligence as a result of failing to properly instruct Mr. McCaig on how to operate

the ATV and by failing to warn Mr. McCaig of dangerous and concealed conditions on his

property that were known to Mr. Whitmore. Specifically, the McCaigs allege that Mr.

Whitmore failed to warn Mr. McCaig to avoid bumps in the lawn, to avoid the edges of the

concrete driveway, and to avoid steel guidewires, all of which he alleges were concealed to

him, but known to Mr. Whitmore. Mrs. McCaig made claims against Mr. Whitmore for loss

of consortium, loss of companionship, loss of services, and medical expenses to the extent

that she is responsible for her husband‘s medical bills. On September 9, 2013, Mr. Whitmore

filed his answer, in which he denied any liability for Mr. McCaig‘s injuries. In his answer,

Mr. Whitmore specifically averred that ―the Recreational Use Statute, codified at Tennessee

Code Annotated [Section] 70-7-104, bars any recovery by [the McCaigs] against [Mr.

Whitmore].‖

On October 8, 2014, Mr. Whitmore filed a motion for summary judgment along with a

statement of undisputed facts alleging that he owed no duty to Mr. McCaig. The McCaigs

opposed Mr. Whitmore‘s motion, which was heard by the trial court on February 6, 2015.

The trial court granted the motion for summary judgment by order of February 25, 2015,

finding that Whitmore had negated an essential element of the McCaigs‘ claim and that he

owed no duty to the McCaigs.

II. Issues

After reviewing the record and the arguments submitted by Appellants, we

perceive the dispositive issues to be:

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1. Whether the trial court erred in finding that the ―recreational use statute‖ was

applicable to the facts in this case.

2. Whether any of the exceptions to the ―recreational use statute‖ outlined in

Tennessee Code Annotated Section 70-7-104 are applicable to the facts in this

case.

3. Whether the trial court erred as a matter of law in granting Appellee‘s motion

for summary judgment.

III. Standard of Review

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. We review a trial court's ruling on a motion for

summary judgment de novo, without a presumption of correctness. Bain v. Wells, 936

S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare–Memphis Hosp.,

325 S.W.3d 98, 103 (Tenn. 2010); Dick Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc.,

395 S.W.3d 653, 671 (Tenn. 2013); and Rye v. Women’s Care Center of Memphis, MPLLC,

__ S.W.3d ___, 2015 WL 6457768 at *12 (Tenn. Oct 26, 2015). In doing so, we make a

fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Rye __ S.W.3d at ___, 2015 WL 6457768, at *12 (citing

Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013); Hughes v. New Life Dev. Corp., 387

S.W.3d 453, 471 (Tenn. 2012)).

For actions initiated on or after July 1, 2011, the standard of review for summary

judgment is governed by Tennessee Code Annotated Section 20-16-101. The statute

provides:

In motions for summary judgment in any civil action in Tennessee, the 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. However, ―a moving party seeking summary judgment by

attacking the nonmoving party‘s evidence must do more than make a conclusory assertion

that summary judgment is appropriate on this basis.‖ Rye, 2015 WL 6457768 at *22. Rule

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56.03 requires that the moving party support its motion with ―a separate concise statement of

the material facts as to which the moving party contends there is no genuine issue for trial.‖

Tenn. R. Civ. P. 56.03. Each fact is to be set forth in a separate, numbered paragraph and

supported by a specific citation to the record. Id. If the moving party fails to meet its initial

burden of production, the nonmoving party‘s burden is not triggered, and the court should

dismiss the motion for summary judgment. Town of Crossville Hous. Auth., 465 S.W.3d

574, 578-79 (Tenn. Ct. App. 2014)(citing Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83

(Tenn. 2008)). As our Supreme Court recently opined:

[T]o survive summary judgment, the nonmoving party ―may not rest upon the

mere allegations or denials of [its] pleading,‖ but must respond, and by

affidavits or one of the other means provided in Tennessee Rule 56, ―set forth

specific facts‖ at the summary judgment stage ―showing that there is a genuine

issue for trial.‖ Tenn. R. Civ. P. 56.06. The nonmoving party ―must do more

than simply show that there is some metaphysical doubt as to the material

facts.‖ Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The

nonmoving party 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, 2015 WL 6457768 at *22 (emphasis in original). If adequate time for discovery has

been provided and the nonmoving party‘s evidence at the summary judgment stage is

insufficient to establish the existence of a genuine issue of material fact for trial, then the

motion for summary judgment should be granted. Id. Thus, even where the determinative

issue is ordinarily a question of fact for the jury, summary judgment is still appropriate if the

evidence is uncontroverted and the facts and inferences to be drawn therefrom make it clear

that reasonable persons must agree on the proper outcome or draw only one conclusion.

White v. Lawrence, 975 S.W.2d 525, 529-30 (Tenn. 1998).

To the extent our review requires an interpretation of the TRUS, we are guided by the

familiar principles of statutory construction. The primary objective of statutory construction

is to determine the intent of the legislature and give effect to that intent. Walker v. Sunrise

Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To achieve this objective, we

begin by examining the language of the statute in question. Curtis v. G.E. Capital Modular

Space, 155 S.W.3d 877, 881 (Tenn. 2005). This Court presumes that the legislature intended

every word be given full effect. Lanier v. Rains, 229 S.W.3d 656, 661 (Tenn. 2007).

Therefore, if the ―language is not ambiguous ... the plain and ordinary meaning of the statute

must be given effect.‖ In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007). It is a

well-settled rule of construction that ―statutes ‗in pari materia‘—those relating to the same

subject or having a common purpose—are to be construed together, and the construction of

one such statute, if doubtful, may be aided by considering the words and legislative intent

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indicated by the language of another statute.‖ Graham v. Caples, 325 S.W.3d 578, 581-82

(Tenn. 2010) (citing Wilson v. Johnson Cnty., 879 S.W.2d 807, 809 (Tenn. 1994)).

IV. Analysis

A. Applicability of the Tennessee Recreational Use Statute

The McCaigs allege that Mr. Whitmore was negligent as a result of failing to provide

Mr. McCaig with appropriate information and instructions regarding the proper and safe

operation of the ATV. They further allege that Mr. Whitmore was negligent in failing to

warn Mr. McCaig about conditions at the residence that were concealed and created

dangerous conditions on the property, including bumps in the lawn, and edges of the concrete

driveway that were higher than the grass. In order to bring a successful suit based on a claim

of negligence, the plaintiff must establish: (1) a duty of care owed by the defendant to the

plaintiff; (2) conduct falling below the applicable 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.

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993) (citing McClenahan v. Cooley, 806

S.W.2d 767, 774 (Tenn. 1991); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn.

1985)). The first element that must be established is ―a duty of care owed by the defendant to

the plaintiff.‖ Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009). The

element of duty, and the dispositive issue in this case, is the legal obligation of a defendant to

conform to a reasonable person‘s standard of care in order to protect against unreasonable

risks of harm. Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn. 2003); McClung v. Delta

Square Ltd. P'ship., 937 S.W.2d 891, 894 (Tenn. 1996); Giggers, 277 S.W.3d at 364. ―The

existence of that duty is the initial requirement of proof to establish a negligence claim.‖

Friedenstab v. Short, 174 S.W.3d 217, 218 (Tenn. Ct. App. 2004). In considering this

element, the relevant inquiry is ―whether the particular defendant owes a duty of care to the

particular plaintiff involved.‖ Main Street Market LLC v. Weinberg, 432 S.W.3d 329, 337

(Tenn. Ct. App. 2013). ―[W]hether a defendant owes a duty of care to a plaintiff is a

question of law to be determined by the court.‖ Id. at 355 (citing West v. E. Tennessee

Pioneer Oil Co., 172 S.W. 3d 545, 550 (Tenn. 2005)). Where a Plaintiff cannot establish the

existence of a duty, his claim must fail. Satterfield v. Breeding Insulation Co., 266 S.W.3d

347, 355 (Tenn. Ct. App. 2008).

In the February 25, 2015 order granting summary judgment, the trial court found that

Mr. Whitmore ―owed no duty to the [McCaigs] based upon the Tennessee Recreational Use

Statute codified at Tenn. Code Ann. §70-7-101 et. seq.‖ That statute provides in pertinent

part as follows:

(a) The landowner, lessee, occupant, or any person in control of land or

premises owes no duty of care to keep such land or premises safe for entry or

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use by others for such recreational activities as . . . off-road vehicle riding, . . .

and nor shall such landowner be required to give any warning of hazardous

conditions, uses of, structures, or activities on such land or premises to any

person entering on such land or premises for such purposes, except as provided

in § 70-7-104.

Tenn. Code Ann. § 70-7-102 (emphasis added).

In Parent v. State, 991 S.W.2d 240, 243 (Tenn. 1999), the Tennessee Supreme Court

outlined a two-pronged analysis to determine whether immunity can be granted under the

recreational use statute. First, the court must determine whether the activity alleged is a

recreational activity as defined by the statute. Id. If the answer to the first inquiry is yes, then

the court must determine whether any of the statutory exceptions or limitations to the

immunity defense are applicable. Id. Accordingly, if the activity at issue here is included in

Tennessee Code Annotated Section 70-7-102 and no exceptions apply, Mr. Whitmore owed

no duty to Mr. McCaig. However, if section 70-7-102 is applicable, but an exception is also

applicable, Mr. Whitmore may be subject to liability. Id.

In their appeal, the McCaigs argue that the recreational use statute does not apply to

the facts in this case. Specifically, Appellants argue that they did not enter Mr. Whitmore‘s

property for the purpose of engaging in recreational activities of any kind including off-road

vehicle riding, and therefore the statute is inapplicable here. Instead, the Appellants argue

that they should be afforded the status of invitees. Generally, when determining the duty that

possessors of land owe to a particular plaintiff, the court ―balances the foreseeability and

gravity of the potential harm against the feasibility and availability of alternatives that would

have prevented the harm.‖ Hale v. Ostrow, 166 S.W.3d 713, 716-17 (Tenn. 2005) (internal

citations omitted). However, by enacting the TRUS, the legislature has replaced the common

law with a specific statutory standard when the plaintiff is engaged in recreational activities

on land owned by another.

The McCaigs argue that Tennessee Code Annotated Section 70-7-102 does not apply

in this case because they did not enter Mr. Whitmore‘s property ―for the purpose of engaging

in recreational activities of any kind including off-road vehicle riding.‖ As set out in full

context above, the statute provides ―[t]he landowner . . . or any person in control of land or

premises owes no duty of care to keep such land or premises safe for entry or use by others

for such recreational activities as . . . off-road vehicle riding . . .‖ Tenn. Code Ann. § 70-7-

102 (emphasis added). As opposed to the conjunctive use of ―and,‖ ―[t]he disjunctive ‗or‘

usually . . . separates words or phrases in an alternate relationship, indicating that either of

the separated words or phrases may be employed without the other.‖ Pryor

Oldsmobile/GMC Co. v. Tennessee Motor Vehicle Comm'n, 803 S.W.2d 227, 230 (Tenn.

Ct. App. 1990). In interpreting statutes, we apply general principles of grammatical

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construction. McCollum v. Huffstutter, No. M2002-00051-COA-R3-CV, 2002 WL

31247077, at *4 (Tenn. Ct. App. Oct. 8, 2002). Accordingly, interpreting the ―or‖ as

disjunctive, we read the statute to confer immunity to the landowner against those who enter

or use his property for recreational use. In other words, the immunity conferred by

Tennessee Code Annotated Section 70-7-102 is not limited to situations in which a person

enters solely for the purpose of recreational activities. Thus, we conclude that Tennessee

Code Annotated Section 7-7-102 is applicable to this case. The question then becomes

whether any exception to immunity applies.

B. Exceptions to Immunity

The McCaigs argue several exceptions to immunity: (1) that the accident occurred on

the ―landowner‘s principal place of residence;‖ (2) Mr. Whitmore‘s conduct amounts to gross

negligence; and (3) Mr. Whitmore‘s conduct amounts to willful and wanton conduct. We

address each argument in turn.

Principal Place of Residence

The McCaigs argue that the ―land and premises‖ where the accident occurred was the

―landowner‘s principal place of residence‖ and is, therefore, specifically excluded from

coverage under Tennessee Code Annotated Section 70-7-101, which provides in pertinent

part:

(1)(C) … the landowner's principal place of residence and any improvements

erected for recreational purposes that immediately surround such residence,

including, but not limited to, swimming pools, tennis or badminton courts,

barbecue or horse shoe pits, jacuzzis, hot tubs or saunas.

Tenn. Code Ann. § 70-7-101(1)(C).

The McCaigs‘ complaint states that Mr. Whitmore‘s ―residence is located on

approximately seven acres of undeveloped land. . . .‖ Appellants urge this Court to interpret

the statute to include the entire seven acres of land as Mr. Whitmore‘s ―principal place of

residence.‖ The phrase ―principal place of residence‖ is not defined in the statute, nor has it

been defined by Tennessee Courts in the context of the recreational use statute. However, in

interpreting the meaning of a word or phrase in a statute, the courts may use dictionary

definitions. McGarity v. Jerrolds, 429 S.W.3d 562, 578 (Tenn. Ct. App. 2013) (citing State

v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010)); see also 82 C.J.S. Statutes § 415 (―If the

statute does not sufficiently define a word used therein, the court may consider all known

definitions of the word, including dictionary definitions, in order to determine the plain and

ordinary meaning of the word.‖) (footnotes omitted). Black's Law Dictionary defines

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―residence‖ as the ―place where one actually lives; a house or other fixed abode; a dwelling.‖

Black's Law Dictionary 1423 (9th ed. 2009).

When questioned during his deposition about where the accident took place, Mr.

McCaig testified as follows:

Q: Okay. Do you know what caused this accident?

A. No, sir.

Q. When you were talking about going over the driveway, we‘re not talking about

the parking area, are we?

A. No, sir.

Q. We‘re talking about further out from the house, right?

A. Correct. Yes, sir.

Q. So this wouldn‘t be the area that you considered the home; it was more out in

the yard or the acreage area?

A. Correct. Yes, sir.

The McCaigs contend that the issue of whether the driveway is included in the

meaning of ―principal place of residence‖ is a question of fact that precludes summary

judgment. Their position, however, is contrary to Tennessee case law. Statutory

interpretation is a question of law, which we review de novo, with no presumption of

correctness given to the courts below. Sullivan ex rel. Hightower v. Edwards Oil Co., 141

S.W.3d 544, 547 (Tenn. 2004) (citing Wallace v. State, 121 S.W.3d 652, 656 (Tenn. 2003)).

When the statutory language is clear and unambiguous, we must apply its plain meaning in its

normal and accepted use, without a forced interpretation that would limit or expand the

statute's application. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

In summary, the McCaigs argue that Mr. Whitmore‘s driveway falls within the

category of property excluded from immunity under Tennessee Code Annotated section 70-7-

101(1)(C). In this case, the provisions of the statute are clear and unambiguous.

Improvements erected for recreational purposes surrounding the residence are excluded from

coverage under the statute. Tenn. Code Ann. §70-7-101(1)(C). Applying the plain meaning

of the terms, we do not conclude that a driveway is an ―improvement erected for recreational

purposes.‖ Although the list of improvements contained in the statute is not exclusive, a

driveway on a seven acre tract of land is not in any way analogous to a swimming pool, a

tennis or badminton court, barbecue or horse shoe pit, jacuzzi, hot tub or sauna. Accordingly,

we conclude that the facts here do not constitute an exception as argued by Appellants.

Gross Negligence Exception

The immunity described in section 70-7-102 does not limit the liability that otherwise

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exists for ―[g]ross negligence, willful or wanton conduct that results in a failure to guard or

warn against a dangerous condition, use, structure or activity.‖ Tenn. Code Ann. § 70-7-104.

The McCaigs argue that the gross negligence exception set out in section 70-7-104 is

applicable in this case, and specifically, that Mr. Whitmore‘s failure to warn Mr. McCaig

about the ―dangerous conditions existing on his property‖ constitutes gross negligence.1

The trial court determined that the allegations against Mr. Whitmore do not constitute

gross negligence even if taken as ―absolutely true.‖ Ordinarily, a determination of ―gross

negligence‖ is a question of fact that should be presented to a jury. However, a question of

fact does not have to be reserved for trial if ―the evidence contained in the record could only

bring reasonable minds to reach one possible conclusion.‖ Rewcastle v. State, No. E2002-

00506-COA-R3-CV, 2002 WL 31926848, at *5 (Tenn. Ct. App. Dec. 31, 2002) (citing

Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000)); see also Davis v.

Campbell, 48 S.W.3d 741, 747 (Tenn. Ct. App. 2001).

In order to prevail on a claim of gross negligence, a plaintiff must prove that the act

was ―done with utter unconcern for the safety of others, or one done with such a reckless

disregard for the rights of others that a conscious indifference to consequences is implied in

law.‖ Leatherwood v. Wadley, 121 S.W.3d 682, 693-94 (Tenn. Ct. App. 2003)(citations

omitted). Gross negligence is ―a conscious neglect of duty or a callous indifference to

consequences.‖ Conroy v. City of Dickson, 49 S .W.3d 868, 871 (Tenn. Ct. App. 2001)

(citations omitted). see also Thrasher v. Riverbend Stables, LLC, No. M2008-02698-COA-

RM-CV, 2009 WL 275767, at *4 (Tenn. Ct. App. Feb. 5, 2009).

Gross negligence in relation to TRUS claims has only been found in the most

egregious cases. In Sumner v. United States, 794 F. 1358 (M.D. Tenn. 1992), the plaintiff

was injured by unexploded ordnance on a firing range on the military installation at Fort

Campbell. Id. at 1361. The District Court explained that the Army had created the hazard

and knew that it had to keep trespassers off the range. Id. at 1362. In Sumner, the District

Court held that a failure to maintain a clear legible sign warning of such a known danger

under the facts of that case constituted gross negligence. Id. at 1367.

During his deposition, Mr. McCaig testified as follows:

1

During the ruling, which is incorporated into its February 25, 2015 order, the trial court observes that the

Appellants do not plead gross negligence in their complaint. However, in the Parent case, the Tennessee

Supreme Court concluded that a party is not required to specifically plead the exceptions delineated in

Tennessee Code Annotated Section 70-7-104. ―Section 104 merely operates to: (1) negate the recreational use

defense, and (2) allow a claimant to pursue a cause of action for which a recreational use defense has been

raised.‖ Parent, 991 S.W. 2d at 242-43. Therefore, the failure to plead the exceptions to the TRUS does not

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Q. So after you get on the four-wheeler, what happened?

A. After I got on, Kelly was also on the other one. We were just

going around the house on the four-wheeler. She was a little bit

ahead of me, so I went across the driveway.

When I went over the first bump – when I first went over the

driveway, I just was kind of losing control of it. So I

accidentally hit the gas, and it sped up a little bit.

So I went over the driveway, and then I made like a turn. And

when I made that turn, I must have hit something to make it go

up. Honestly, to my knowledge sir, I don‘t remember what I hit.

I just remember going up like this. And the next thing I

remember, sir, I was on my back with a four-wheeler on top of

me.

***

Q. So is it fair to say that the route that you took was the same route

that your wife had taken directly in front of you?

A. Yes, sir.

Q. Okay. Do you know what caused this accident?

A. No, sir.

As previously stated, gross negligence may be decided as a matter of law when the

material facts are not in dispute and when these facts, and the conclusions reasonably drawn

from them, would permit a reasonable person to reach only one conclusion. Leatherwood,

121 S.W.3d at 693 (affirming summary judgment dismissing gross negligence claim); and

Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn.Ct.App.1990) (affirming summary judgment

dismissing gross negligence claim). We have reviewed the entire record in this case and find

no facts from which a reasonable fact finder could conclude that Mr. Whitmore is guilty of

gross negligence.

Willful Wanton Exception

Like gross negligence, ―willful or wanton conduct that results in a failure to guard or

warn against a dangerous condition, use, structure or activity‖ is also excluded from

immunity under Tennessee Code Annotated Section 70-7-102. Tenn. Code Ann. § 70-7-104.

The McCaigs take issue with the fact that in reviewing the exceptions to the recreational use

statute, the trial court focused exclusively on gross negligence. In its ruling, the trial court

stated, ―It‘s not argued here that the willful or wanton conduct exception is relevant. Rather,

it is argued here that the [Appellee‘s] conduct constitutes gross negligence.‖ According to

prohibit their application to the case at bar.

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the trial court, the McCaigs did not argue that Mr. Whitmore is guilty of willful or wanton

conduct. Further, the McCaigs‘ complaint does not allege willful or wanton conduct. It is

well settled that issues not raised at the trial level are considered waived on appeal. Tenn. R.

App. P. 36(a) (―Nothing in this rule shall be construed as requiring relief be granted to a party

responsible for an error who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error.‖). See Waters v. Farr, 291 S.W.3d 873, 918

(Tenn. 2009); PNC Multifamily Capital Institutional Fund XXVI Ltd. P'ship v. Mabry, 402

S.W.3d 654, 660 (Tenn. Ct. App. 2012). Additionally, the record does not contain a

transcript of the hearing. Although the record contains an excerpt of the hearing on the

summary judgment motion, the portion of the transcript provided contains only the trial

court‘s ruling. The burden is upon the appellant to show that the evidence preponderates

against the judgment of the trial court. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct.

App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d 259, 266 (Tenn. Ct. App. 1969)).

―In the absence of a transcript of the evidence, there is a conclusive presumption that there

was sufficient evidence before the trial court to support its judgment, and this Court must

therefore affirm the judgment.‖ Coakley, 840 S.W.2d at 370 (citing McKinney v. Educator

and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. App. 1977)). Because we can

make no meaningful review absent a transcript, we assume that the statement of the trial

court is correct. Consequently, we affirm the ruling of the trial court that the ―exceptions

provided in the Tennessee Recreational Use Statute are inapplicable to this case.‖

C. Whether the trial court erred as a matter of law in granting Appellee’s

motion for summary judgment.

The McCaigs also argue that the trial court erred in granting Mr. Whitmore‘s motion

for summary judgment. The two-prong test outlined by our supreme court in Parent v. State,

991 S.W.2d 240, 243 (Tenn. 1999), is instructive here. In this case, the activity of off-road

vehicle riding is specifically named in Tennessee Code Annotated Section 70-7-102. Thus,

the first prong of the test, whether the activity is a recreational activity as defined by statute,

is answered in the affirmative. The next inquiry is whether any of the statutory exceptions or

limitations to the immunity defense are applicable. We have determined that there are no

applicable exceptions presented by the facts in this case. Accordingly, we conclude that Mr.

Whitmore owed no duty to Mr. McCaig pursuant to Tennessee Code Annotated Section 70-7-

101 et seq. To survive summary judgment, the Tennessee Supreme Court requires the

Appellants to ―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, 2015 WL 6457768 at

*22. When viewing the facts in the light most favorable to the McCaigs, we conclude that

summary judgment is appropriate in this case. Accordingly, we affirm the decision of the

trial court.

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V. Conclusion

For the foregoing reasons, we affirm the order of the trial court granting summary

judgment in favor of the Appellee. This case is remanded to the trial court for such further

proceedings as may be necessary and are consistent with this opinion. Costs of the appeal are

assessed against the Appellants, Homer and Kelly McCaig and their surety, for all of which

execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

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