Carol Mooney v. Genuine Parts Company d/b/a National Automotive Association, Inc. ("NAPA")

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 20, 2016 Session

CAROL MOONEY, ET AL. v. GENUINE PARTS COMPANY d/b/a

NATIONAL AUTOMOTIVE ASSOCIATION, INC. (“NAPA”), ET AL.

Direct Appeal from the Circuit Court for Crockett County

No. 3306 Clayburn Peeples, Judge

No. W2015-02080-COA-R3-CV – Filed May 11, 2016

This appeal arises out of a premises liability case involving a plaintiff who fell while

exiting an auto parts store. The trial court granted the defendants‟ motion for summary

judgment. We affirm and remand for further proceedings.

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

Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ANDY D. BENNETT

and KENNY ARMSTRONG, JJ., joined.

J. Mark Patey, Jackson, Tennessee, for the appellants, Carol Mooney and Joey Mooney.

Brian Kirk Kelsey, Collierville, Tennessee, for the appellees, Genuine Parts Company

d/b/a National Automotive Association, Inc. (“NAPA”), Genuine Parts Company d/b/a

NAPA Auto & Truck Parts/NAPA Auto Parts Store #07038, and Wayne Climer.

OPINION

I. FACTS & PROCEDURAL HISTORY

On October 19, 2011, Carol Mooney visited the NAPA Auto Parts store in Alamo,

Tennessee, in order to inquire about a job opening. She was told that the position had

been filled and left the store within five to fifteen minutes of entering. As she exited

through the same double doorway she had entered, she lost her balance and fell onto the

concrete outside the store, suffering injuries.

On October 17, 2012, Mrs. Mooney and her husband (collectively, “Plaintiffs”)

filed this lawsuit against Genuine Parts Company d/b/a National Automotive Association,

Inc. also d/b/a Napa Auto & Truck Parts/Napa Auto Parts – Store # 07038 (“NAPA”).

Plaintiffs also named as a defendant the property owner, Wayne Climer. According to

the complaint, while Mrs. Mooney was carefully exiting the store, she pushed open one

of the glass doors toward the outside and fell due to a precipitous three-and-one-half-inch

drop-off from the level of the interior floor to the level of the exterior concrete surface.

Plaintiffs alleged that the decline in elevation or drop-off adjacent to the bottom of the

metal door frame was hazardous and could have been remedied by a ramp, contrasting

floor material or paint, handrails, or warning signs. Plaintiffs alleged that NAPA and Mr.

Climer (collectively, “Defendants”) were negligent in failing to either repair the

dangerous condition or warn customers of its existence. Plaintiffs sought $750,000 in

damages for injuries allegedly suffered by Mrs. Mooney and $100,000 in damages for

loss of consortium for Mr. Mooney.

Defendants filed an answer, and discovery ensued. On June 4, 2015, Defendants

filed a motion for summary judgment. Among other things, Defendants claimed that they

had no duty to warn Mrs. Mooney of the three-and-one-half-inch step-down at the

doorway because it was not foreseeable that anyone would fall because of it. Defendants

submitted discovery responses and deposition testimony in support of their motion for

summary judgment. In particular, Defendants submitted the deposition testimony of the

store manager, who testified that no one had ever fallen while exiting the doorway in his

26 years of employment. Defendants also noted that Mrs. Mooney had walked over the

step without incident only minutes earlier when she entered the store. They submitted

her deposition testimony that she was not looking down at the step when she exited the

door and fell. Additionally, Defendants noted Mrs. Mooney‟s testimony that her vision

was unimpaired, and it was a clear, sunny day. In sum, Defendants claimed that they had

no notice of any probability of harm to Mrs. Mooney, and therefore, Plaintiffs possessed

insufficient evidence to demonstrate the duty element of their negligence claim.

Plaintiffs filed a response in opposition to the motion for summary judgment along

with an affidavit of Mrs. Mooney and several full-length depositions. Plaintiffs argued

that genuine issues of material fact existed regarding whether Defendants had knowledge

of a dangerous condition and a duty to correct the condition or warn Mrs. Mooney of its

existence. Plaintiffs relied on Mrs. Mooney‟s testimony about the circumstances

surrounding her fall and her opinion that the drop-off was not noticeable. They also

relied on the testimony of the store manager, who admitted that he had stumbled going

out the doorway, even though he had never fallen. Finally, Plaintiffs submitted the

deposition testimony of another store employee who was asked “could you see” where a

decline or incline as one opens the door could cause someone to fall, and he responded,

“Sure.” Plaintiffs claimed that this evidence created a genuine issue of material fact for

resolution by a jury.

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After a hearing, the trial court entered an order on September 25, 2015, granting

the motion for summary judgment filed by Defendants. The trial court concluded that it

was not reasonably foreseeable that a normal person would fall traversing the doorway in

question. Plaintiffs timely filed a notice of appeal.1

II. ISSUE PRESENTED

On appeal, Plaintiffs argue that the trial court erred in granting summary judgment

to Defendants when genuine issues of material fact existed. For the following reasons,

we affirm the decision of the chancery court and remand for further proceedings.

III. STANDARD OF REVIEW

We review a trial court‟s ruling on a motion for summary judgment de novo

without a presumption of correctness. Estate of Brown, 402 S.W.3d 193, 198 (Tenn.

2013). 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. The party moving for summary

judgment 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). When a motion for summary judgment is

properly supported as provided in Tennessee Rule of Civil Procedure 56, in order to

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 Rule 56, set forth specific facts at the summary judgment stage showing that

1

We note that Plaintiff‟s counsel filed a motion for an extension of time to file his brief on appeal,

claiming that he was delayed because the trial court clerk had inadvertently failed to include the

deposition of the store manager, Mr. Woodward, in the record on appeal. Plaintiff sought and was

granted additional time to file his brief on this basis, and the trial court clerk supplemented the record at

the request of Plaintiff‟s counsel with an additional volume containing Mr. Woodward‟s deposition.

However, our review of the record on appeal indicates that the original record already contained Mr.

Woodward‟s deposition, which spans the last sixty pages of volume two of the technical record. The

record now contains two copies of the same deposition. It also contains unanswered written discovery,

notices of depositions, a proposed but unsigned order, and other documents that are specifically excluded

from the record on appeal by Rule 24 of the Tennessee Rules of Appellate Procedure. We have called

attention to these deficiencies not to embarrass or berate the parties or their counsel but to remind litigants

of this Court‟s Rules so as to serve the interests of judicial economy and promote the expediency of

appeals. See, e.g., Douglas v. Caruthers & Assocs., Inc., No. W2013-02676-COA-R3-CV, 2015 WL

1881374, at *7 (Tenn. Ct. App. Apr. 24, 2015) (noting similar errors in the record for these reasons).

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there is a genuine issue for trial. Id. at 265. Summary judgment should be granted if 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. Id. (citing Tenn. R. Civ. P.

56.04, 56.06).

As a general rule, negligence cases are not amenable to disposition on summary

judgment; however, summary judgment “may be used to conclude any civil case,

including negligence cases, that can be and should be resolved on legal issues alone.”

Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997). Summary judgment is appropriate in a

negligence case if the facts, together with the inferences to be drawn from the facts, are

so certain and uncontroverted that reasonable minds must agree. Keene v. Cracker

Barrel Old Country Store, Inc., 853 S.W.2d 501, 502-03 (Tenn. Ct. App. 1992). “Courts

need not submit to the jury negligence cases containing only a spark or glimmer of

evidence that requires the finder-of-fact to make a leap of faith to find the defendant

liable for the plaintiff‟s injury.” Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d 860, 866

(Tenn. Ct. App. 2001) (citing Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47

(Tenn. Ct. App. 1995); Underwood v. HCA Health Servs. of Tenn., Inc., 892 S.W.2d 423,

427 (Tenn. Ct. App. 1994)).

IV. DISCUSSION

In a recent appeal involving premises liability, this Court summarized the

following standards that are equally applicable to our analysis in this case:

Negligence cannot be presumed by the mere happening of an injury

or accident. Brackman v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App.

1971). Simply put, “[p]eople fall all the time but this does not perforce

mean that the fall was due to another‟s negligence[.]” Anderson v. Wal-

Mart Stores East, L.P., No. 2:12-00037, 2013 WL 3010696, at *3 (M.D.

Tenn. June 18, 2013). A plaintiff must establish the following elements to

prove a negligence claim: “(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 the duty; (3) an injury or loss; (4) causation in

fact; and (5) proximate causation.” Rice v. Sabir, 979 S.W.2d 305, 308

(Tenn. 1998).

Owners and occupiers of business premises are required to exercise

due care under all the circumstances, but they are not insurers of the safety

of their customers or the general public. Parker v. Holiday Hosp.

Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014); Plunk v. Nat’l

Health Inv’rs, Inc., 92 S.W.3d 409, 413 (Tenn. Ct. App. 2002). Property

owners are responsible for “either removing, or warning against, any

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dangerous condition on the premises of which the property owner is

actually aware or should be aware through the exercise of reasonable

diligence.” Parker, 446 S.W.3d at 350 (citing Eaton v. McLain, 891

S.W.2d 587, 594 (Tenn. 1994)). The operator of a place of business has a

duty to maintain the premises “„in a reasonably safe condition either by

removing or repairing potentially dangerous conditions or by helping

customers and guests avoid injury by warning them of the existence of

dangerous conditions that cannot, as a practical matter, be removed or

repaired.‟” Piana v. Old Town of Jackson, 316 S.W.3d 622, 629-30 (Tenn.

Ct. App. 2009) (quoting Psillas, 66 S.W.3d at 864). However, the property

owner is not responsible for removing or warning against “conditions from

which no unreasonable risk was to be anticipated.” Parker, 446 S.W.3d at

350. Liability is imposed when the condition constituted a danger from

which injury might be reasonably anticipated. Newcomb v. State, No.

M2014-00804-COA-R3-CV, 2015 WL 3956038, at *3 (Tenn. Ct. App.

June 26, 2015) (no perm. app. filed).

The issue in this case is whether a dangerous or defective condition

existed on Defendants‟ premises such that they had a duty to remove or

repair the condition or warn [the plaintiff] of its existence. See Stewart v.

Seton Corp., No. M2007-00715-COA-R3-CV, 2008 WL 426458, at *5

(Tenn. Ct. App. Feb. 12, 2008). “The determination of whether a particular

location is defective, dangerous or unsafe is a question of fact.” Christian

v. Ebenezer Homes of Tenn. Inc., No. M2012-01986-COA-R3-CV, 2013

WL 3808210, at *3 (Tenn. Ct. App. July 17, 2013), perm app. denied

(Tenn. Dec. 26, 2013) (citing Helton v. Knox County, 922 S.W.2d 877, 882

(Tenn. 1996)).

Steele v. Primehealth Med. Ctr., P.C., No. W2015-00056-COA-R3-CV, 2015 WL

9311846, at *5 (Tenn. Ct. App. Dec. 22, 2015) (no perm. app. filed).

The facts in Steele involved a deliveryman who fell on a sidewalk at a five-inch

drop-off forming one side of a wheelchair access point. As such, we discussed several

premises liability cases involving steps or drop-offs and motions for summary judgment.

A review of those cases is helpful here as well:

In Boykin v. George P. Morehead Living Trust, No. M2014-00575-COA-

R3-CV, 2015 WL 3455433, at *1 (Tenn. Ct. App. May 29, 2015) (no perm.

app. filed), the plaintiff tripped and fell on a concrete landing in a parking

lot, where the parking lot was four inches lower than the concrete landing.

The plaintiff stated that he did not notice the difference in height prior to

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the fall because he was looking straight ahead, rather than down at where

he was walking. No other accidents, incidents, or complaints regarding the

concrete landing had been reported to the owner. The plaintiff sued the

parking lot owner for negligence, alleging that the owner failed to correct

the dangerous condition of the concrete landing, i.e., the four-inch height

difference. The trial court granted summary judgment to the defendant,

concluding, among other things, that the plaintiff failed to establish that a

dangerous or defective condition existed and, therefore, the owner had no

duty to warn the plaintiff or to correct the condition. Id. at *2. On appeal,

this Court affirmed. We concluded that the plaintiff “did not present

sufficient evidence to demonstrate that the height deferential between the

concrete parking landing and the parking lot was a dangerous or defective

condition.” Id. at *3. We acknowledged that the plaintiff presented photos,

his own testimony, and a contractor‟s statement that the parking lot surface

was not flush with the concrete landing. However, we deemed this

evidence insufficient. The contractor‟s statement that the asphalt was not

even with the concrete slab failed to establish that a dangerous or defective

condition existed. The photos showed only the parking lot and the landing

as they existed at the time of the injury. We explained, “[f]or a jury to

conclude that the height differential was dangerous or defective would

require „speculation, conjecture, and guesswork.‟” Id. (quoting Nee v. Big

Creek Partners, 106 S.W.3d 650, 654 (Tenn. Ct. App. 2002)). We also

concluded that the plaintiff‟s testimony did not permit a reasonable

inference that the height differential was defective or dangerous, as he

admitted that if he had looked down where he was walking, he would have

seen the height difference and avoided the fall. Therefore, we affirmed the

grant of summary judgment to the defendant.

In Stewart v. Seton Corp., No. M2007-00715-COA-R3-CV, 2008

WL 426458, at *1 (Tenn. Ct. App. Feb. 12, 2008), the plaintiff was injured

in a hospital parking lot when she stepped down off a curb that separated a

dirt embankment from the driveway. The curb on which she fell was

approximately three inches high, unmarked, unpainted, and the same color

as the concrete driveway as well as the adjacent ground. She sued the

hospital for negligence, alleging that the curb constituted an unsafe,

dangerous, and defective condition. The defendants filed a motion for

summary judgment, supported by the testimony of an architect, who stated

that the curb from which the plaintiff fell was not designed, constructed, or

placed in an unsafe, defective or dangerous manner. The curb was of

standard height, color, and construction, and neither the curb nor its

placement violated any building codes or standards. According to the

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architect, building codes did not require that the curb be painted, and that

type of curb was common in parking lots throughout the Nashville area.2

Still, the plaintiff argued that a jury could conclude that the unpainted curb

was dangerous. Id. at *2. The court of appeals affirmed the trial court‟s

grant of summary judgment to the property owner. The court explained, “A

trier of fact cannot conclude that an owner failed to exercise reasonable

care to prevent injury to persons on their property if there is no evidence of

a dangerous or defective condition.” Id. at *4 (citing Nee, 106 S.W.2d at

654). Although it was undisputed that the curb was unpainted and that the

plaintiff did not notice it, the court concluded that the plaintiff simply failed

to set forth specific facts to indicate that the hospital breached a duty to the

plaintiff.

In Cagle v. Gaylord Entertainment Co., No. M2002-00230-COA-

R3-CV, 2002 WL 31728866, at *1 (Tenn. Ct. App. Dec. 5, 2002), perm.

app. denied (Tenn. June 30, 2003), the plaintiff fell in a hotel parking lot

when she allegedly tripped on a long white concrete curb or barrier

separating opposing parking spaces. This Court affirmed the trial court‟s

grant of summary judgment to the hotel, finding no proof of a dangerous

condition. Id. at *4. The curb had no obvious physical or construction

defects. Id. at *2. The record contained no expert testimony that the curb or

parking lot was designed or constructed in an unsafe, perilous or dangerous

manner; it contained no evidence of other tripping accidents on any curb in

the parking lot; and it contained no evidence that any building code or

standard was violated in the construction or maintenance of the parking lot.

We explained, “[i]t is conceivable that proof could be developed that would

lead to the conclusion that the design and construction of the curb and the

lighting in the parking lot created an unsafe, dangerous, or perilous

condition. However, this record contains no such proof.” Id. at *3. The

court noted, “[t]he fact that Ms. Cagle tripped on the curb is not proof that

the curb is dangerous or unsafe. Graceful athletes often trip on yardlines in

football or on the foul line in basketball. People do trip and fall on

conditions that are not unsafe.” Id. Without some evidence in the record

that the curb was defective or dangerous, summary judgment was

appropriate.

We have reached similar results in several other cases. See, e.g.,

Grady v. Summit Food Corp., No. M2012-02493-COA-R3-CV, 2013 WL

2

We note that the parties in this case did not submit any evidence regarding compliance with building

codes. During the hearing on the motion for summary judgment, both parties‟ attorneys represented to

the trial court that the City of Alamo has not adopted a building code.

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4107285, at *6 (Tenn. Ct. App. Aug. 13, 2013) (no perm. app. filed)

(affirming summary judgment to a defendant restaurant, finding the

entrance ramp did not constitute a dangerous condition where there were no

other reports of injuries at the walkway, it did not violate any applicable

building codes, and it was cleaned regularly); Christian v. Ebenezer Homes

of Tenn., Inc., No. M2012-01986-COA-R3-CV, 2013 WL 3808210, at *5

(Tenn. Ct. App. July 17, 2013), perm. app. denied (Tenn. Dec. 26, 2013)

(affirming summary judgment on a claim that windowless double doors

were a dangerous condition, where the defendant showed that the doors

were properly installed and functioning, they complied with applicable

codes and were periodically inspected, and there were no other reports of

incidents or injuries regarding the doors); Gordon v. By-Lo Markets, Inc.,

No. E2009-02436-COA-R3-CV, 2010 WL 3895541, at *3 (Tenn. Ct. App.

Oct. 5, 2010), perm. app. denied (Tenn. Mar. 9, 2011) (affirming summary

judgment to a grocery store where the plaintiff relied on a photograph of

the stained parking lot and her testimony that a slick spot caused her fall but

failed to offer any evidence demonstrating that the stained parking lot

constituted a dangerous condition); Barron v. Stephenson, No. W2004-

02906-COA-R3-CV, 2006 WL 16310, at *4-5 (Tenn. Ct. App. Jan. 4,

2006) (affirming summary judgment in a case alleging that a handicap

ramp constituted a dangerous condition, where the plaintiff alleged the

ramp was slippery but admitted the owner was not required by law to cover

the ramp‟s wooden surface, there was nothing obstructing her view of the

ramp, and there were no foreign objects on the ramp); Nee, 106 S.W.3d at

654 (affirming a directed verdict for the defendant, explaining that a jury

could not be permitted to infer that steps were dangerous from merely

examining photos).

Steele, 2015 WL 9311846, at *7-8. In Steele, we affirmed the grant of summary

judgment to the defendants because the plaintiff failed to present sufficient evidence to

demonstrate that the five-inch step at the side of the wheelchair ramp constituted a

dangerous or defective condition giving rise to a duty to remove or repair it or warn the

plaintiff of its existence. Id. at *10.

Again, in the case at bar, Defendants filed a motion for summary judgment

claiming that they had no duty to warn Mrs. Mooney of the three-and-one-half-inch drop-

off at the doorway because it was not foreseeable that she would fall because of it. Mrs.

Mooney described her fall as follows:

[A]s I was approaching the exiting front doors, it appeared that the inside

store flooring was flush, or even, with the walkway on the outside and I

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simply pushed the doors open to exit and stepped out believing my foot

would land at the same level as the exiting inside store floor, but yet there

was a drop off of several inches and it caused me to have no balance and to

fall, severely injuring myself.

Mrs. Mooney said that the drop-off “was not noticed by me and could not be noticed by

me as I exited store[.]” However, she admitted that she was looking straight forward as

she exited and not down at the step. Mrs. Mooney acknowledged that her vision was

unimpaired and that it was a clear sunny day. Defendants also noted that Mrs. Mooney

had traversed through the doorway without incident only minutes before her fall when

she entered the store. Mrs. Mooney testified that when she entered the store, “it did not

even feel as though I was entering at a higher level because it was only about three

inches.” Defendants also submitted the testimony of the NAPA store manager, Mr.

Woodward, who testified that he had been working at that same location for about 26

years. During that time, the store entrance had remained in the same condition, and no

one had ever fallen. Defendants claimed that this evidence demonstrated that they had no

notice of any probability of harm to Mrs. Mooney and therefore Plaintiffs possessed

insufficient evidence to demonstrate the duty element of their negligence claim.

Having reviewed the evidence presented at this stage of the proceedings, we

conclude that Defendants satisfied their burden of production by demonstrating that

Plaintiffs‟ evidence at the summary judgment stage was insufficient to establish their

claim for negligence. Defendants‟ evidence demonstrated that no unreasonable risk to

Mrs. Mooney was to be anticipated from the three-and-one-half-inch decline in height at

the doorway.

When faced with a properly made and supported motion for summary judgment,

the nonmoving party may not rest on its pleadings “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.‟” Rye, 477

S.W.3d at 265 (quoting Tenn. R. Civ. P. 56.06). The nonmoving party must do more

than simply demonstrate some metaphysical doubt as to the material facts; 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. Id.

“[S]ummary judgment may be granted when the evidence supporting the plaintiff‟s claim

„is merely colorable or is not significantly probative.‟” Steele, 2015 WL 9311846, at *13

(quoting Rye, 477 S.W.3d at 252 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249-50 (1986))).

The mere existence of a scintilla of evidence in support of the plaintiff‟s

position will be insufficient; there must be evidence on which the jury

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could reasonably find for the plaintiff. The judge‟s inquiry, therefore,

unavoidably asks whether reasonable jurors could find by a preponderance

of the evidence that the plaintiff is entitled to a verdict[.]

Id.

In response to the Defendants‟ motion for summary judgment, Plaintiffs filed an

affidavit of Mrs. Mooney and several depositions in an effort to demonstrate that genuine

disputes of material fact existed for determination by a jury. First, they pointed to Mrs.

Mooney‟s testimony about the circumstances surrounding her fall. Mrs. Mooney testified

that as she approached the doorway, the interior tile appeared to be flush with the

concrete outside, so she thought that the surface was even. Mrs. Mooney testified that

when she stepped out, “both feet just fell” and she lost her balance because there was “a

three inch drop.”

Plaintiffs also submitted the deposition testimony of the store manager, Mr.

Woodward. As noted above, he testified that no one had fallen at the doorway in his 26

years of employment. However, when Plaintiff‟s counsel asked if anyone had ever

tripped or slipped while exiting, Mr. Woodward said that he had stumbled while going

out the doorway. Mr. Woodward was asked if he could see how someone could stumble

and fall if they forgot that the step-down existed, opened the door, and encountered an

immediate step. He acknowledged that “anything is possible” but said the chance of that

happening would be “[o]ne in a million.” Finally, Plaintiffs relied on the deposition

testimony of a former employee of the NAPA store, who was asked if he could see how a

decline or incline of three and a half to four inches could cause someone to fall when

stepping down or coming up, and he responded, “Sure.” Plaintiffs argued that this

evidence demonstrated Defendants‟ knowledge of a dangerous or defective doorway and

created a genuine issue of fact for trial.

After carefully reviewing the evidence submitted in response to the motion for

summary judgment, we conclude that Plaintiffs failed to demonstrate that a genuine issue

of material fact existed regarding whether Defendants had knowledge of a dangerous

condition. The scant evidence presented by Plaintiffs would require a fact finder to

speculate in order to find that the condition of the NAPA entryway was dangerous or

defective. As we explained in Steele,

[A] property owner is not responsible for removing or warning against

“conditions from which no unreasonable risk was to be anticipated.”

Parker, 446 S.W.3d at 350. “The duty applicable to premises owners only

requires them to remove or warn against conditions that are, in fact,

dangerous.” Newcomb, 2015 WL 3956038, at *3 (citing Parker, 446

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S.W.3d at 350). A premises owner is not under a duty to warn of every

aspect of a premises that may be unfamiliar. Norfleet v. Pulte Homes Tenn.

Ltd. P’ship, No. M2011-01362-COA-R3-CV, 2011 WL 5446068, at *5

(Tenn. Ct. App. Nov. 9, 2011). “„To hold otherwise would necessarily cast

the premises owner in the role of an absolute insurer of the social guest‟s

safety, which is not contemplated by our negligence law.‟” Id. (quoting

Eaton v. McLain, 891 S.W.2d 587, 595 (Tenn. 1994)). Consequently, in

order to hold a premises owner liable for an injury, there must be some

evidence that a dangerous condition actually existed on the premises. Nee,

106 S.W.3d at 653. “A condition is dangerous „only if it is reasonably

foreseeable that the condition could probably cause harm or injury and that

a reasonably prudent property owner would not maintain the premises in

such a state.‟” Newcomb, 2015 WL 3956038, at *4 (quoting Stewart, 2008

WL 426458, at *4). “The fact that an injury is simply possible, as opposed

to probable, does not make a condition dangerous.” Newcomb at *4; see

also Christian, 2013 WL 3808210, at *3 (“probability, not possibility,

governs; that it is possible does not make it dangerous”).

2015 WL 9311846, at *9. We recognize that “„[t]here are circumstances in which stairs

or steps may constitute dangerous conditions that give rise to a duty to warn.‟” Brown v.

Mercer-Defriese, No. E2015-00755-COA-R3-CV, 2016 WL 286456, at *7 (Tenn. Ct.

App. Jan. 25, 2016), perm. app. filed (Mar. 24, 2016) (quoting Norfleet, 2011 WL

5446068, at *6) (emphasis omitted). However, “because steps are not inherently

dangerous, a plaintiff cannot establish a „defective or dangerous condition‟ merely by

alleging that he or she tripped or fell on a step or set of stairs, without further proof.” Id.

at *7.

The record before us simply contains insufficient evidence to allow a jury to

reasonably find that the three-and-one-half-inch step at NAPA was unreasonably

dangerous or defective. The proof does not reasonably lead to the conclusion that the

step-down was dangerous in the sense that it was reasonably foreseeable to Defendants

that it would probably cause harm or injury. No one had fallen because of the step-down

in the past 26 years, and Mrs. Mooney traversed over the step without any trouble when

she entered the store. Although Plaintiff cited the store manager‟s acknowledgment that

he had stumbled while exiting the store, he did not state when this occurred or how many

times it occurred over the 26-year period. More importantly, Mr. Woodward testified

that when he had stumbled exiting the store, he stumbled because he had something in his

hands, was looking at something else, or tripped over his own feet. He specifically

denied that he had ever stumbled because of the step. Moreover, the evidence regarding

Mr. Woodward stumbling only demonstrates that he stumbled, not that the step had ever

caused any harm or injury. Mr. Woodward testified that when he stumbled, he was not

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injured. “A condition is dangerous „only if it is reasonably foreseeable that the condition

could probably cause harm or injury and that a reasonably prudent property owner would

not maintain the premises in such a state.‟” Newcomb, 2015 WL 3956038, at *4 (quoting

Stewart, 2008 WL 426458, at *4). The evidence submitted by Plaintiff fails to establish

reasonable foreseeability that the step-down at the NAPA doorway would probably cause

harm or injury.

The same holds true for the employees‟ answers regarding whether it would be

possible for the step-down to cause injury to someone who forgets about it. The

employees acknowledged the remote possibility of an injury occurring but did not

establish that it was probable. In fact, Mr. Woodward estimated the probability at one in

a million.

Finally, we conclude that Plaintiffs did not create a genuine issue of material fact

simply by pointing to the testimony of Mrs. Mooney that she did not notice the step-

down. She testified that she was not looking down at the step-down when she exited the

doorway.

While these facts demonstrate that an unfortunate accident occurred, they do not

demonstrate that a dangerous or defective condition existed on Defendants‟ premises

such that they had a duty to remove or repair the condition or warn Mrs. Mooney of its

existence.3 We agree with the trial court‟s conclusion that it was not reasonably

foreseeable that someone would fall traversing the doorway in question. Accordingly, we

affirm the trial court‟s order granting summary judgment to the Defendants.

V. CONCLUSION

For the aforementioned reasons, the decision of the circuit court is hereby affirmed

3

During oral argument in this case, Plaintiff‟s counsel argued that this case was comparable to Brown v.

Mercer-Defriese, 2016 WL 286456, recently decided by the Eastern Section of this Court. However, we

consider it factually distinguishable. Brown was a premises liability case involving a three-inch threshold

or step between two interior rooms in a rental home. Id. at *1. The Court of Appeals concluded that

reasonable minds could differ on the question of whether the step was dangerous due to the testimony of

expert witnesses on both sides that the step was a “trip hazard,” one expert‟s opinion that the unusually

short size of the single step between two interior rooms was dangerous and “high-risk,” the plaintiff‟s

testimony, and photographs of the accident scene. Id. at *7. The evidence presented by Plaintiffs does not

rise to that level and does not allow reasonable minds to reach different conclusions.

Plaintiffs also compared their facts to those in Walden v. Central Parking System of Tennessee,

Inc., 471 S.W.3d 818, 820 (Tenn. Ct. App. 2015). However, Walden involved a plaintiff who was

looking down where she was walking, and the Court concluded that summary judgment was inappropriate

under the summary judgment standard set forth in Hannan v. Alltel Publishing Co., 270 S.W.3d 1, 8-9

(Tenn. 2008). The Hannan standard is inapplicable to this case.

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and remanded for further proceedings. Costs of this appeal are taxed to the appellants,

Carol Mooney and Joey Mooney, and their surety, for which execution may issue if

necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

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