The opinion
12/27/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 13, 2021 Session
TIMOTHY LEE MALONE v. ANTHONY VIELE, ET AL.
Appeal from the Circuit Court for Carter County
No. C14402 Jean A. Stanley, Judge
No. E2021-00637-COA-R3-CV
This is a negligence case arising out of an injury suffered by the plaintiff when he fell off
a ladder at the defendant’s cabin which was then under construction. The trial court
granted the defendant’s motion for summary judgment, holding that there was no genuine
issue as to any material fact and that the plaintiff’s evidence was insufficient to establish
his claim. The plaintiff appeals. We conclude that there is no dispute of material fact
and that summary judgment in favor of the defendant was properly granted.
Accordingly, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which KENNY
ARMSTRONG and KRISTI M. DAVIS, JJ., joined.
Donald Capparella and Kimberly Macdonald, Nashville, Tennessee, and Troy B. Jones,
Knoxville, Tennessee, for the appellant, Timothy Lee Malone.
James E. Rasnic, Bristol, Virginia, for the appellees, Anthony Viele and Pamela J.
Harper.
OPINION
I. BACKGROUND
The facts underlying this action are essentially undisputed. Appellant Timothy
Malone (“Plaintiff”) and Appellee Anthony Viele were friends who each have experience
working in construction and remodeling. Plaintiff agreed to help Mr. Viele nail two-by-
four boards diagonally across the window and door openings of Mr. Viele’s cabin which
was then under construction in Butler, Tennessee. They did the work on a sunny, clear
day in October 2017. To nail a board across the high windows, the men each had to
climb 20-foot extension ladders. One would hold the board while the other nailed the
opposite end of it into a corner of the window opening. Sometimes, Plaintiff would nail
the higher corner of the board and sometimes, Mr. Viele would. An accident occurred
when Plaintiff attempted to nail a board to the top corner of a window opening. Both
men were on ladders to reach this particular window. Plaintiff had positioned his own
customary ladder where he thought it should be placed and on reasonably flat ground, as
had Mr. Viele. Plaintiff used his own hammer during the task. Mr. Viele was holding in
position one end of the two-by-four at the bottom corner while Plaintiff nailed the top
corner. Plaintiff hit the board with his hammer, but it bounced back and knocked him off
the ladder, resulting in serious injuries.
On September 17, 2018, Plaintiff sued Mr. Viele for negligence.1 Mr. Viele
denied liability and asserted the doctrine of comparative negligence as an affirmative
defense. The case proceeded through discovery. Plaintiff testified as follows throughout
his deposition:
Q. What was [Mr. Viele] doing?
A. He was down lower holding the lower end of the two-by-four at a
diagonal across the window. I was on the upper side of it.
Q. Was he also on a ladder?
A. Yes.
...
Q. Can you tell me how this happened?
A. How the accident happened?
Q. Yes.
A. Sure. I was on the upper end of the two-by-four that was across the
window or door. I don’t remember which. Mr. Viele was to my right side
as I was facing the wall. I had some nails and a two-by-four. I’d knocked
the two-by-four into the wall. It was holding. I hit it again, and it bounced
back, hit me in the head, knocked me off balance.
Q. So you hit it with the hammer?
A. Yes. Mr. Viele was to my right. I knew I was going to fall. I tried to
push the ladder to my left away from him and turn in the air and land facing
away from the house on my feet.
Q. Okay. So you said you had hit it with one nail in the two-by-four?
A. There were several nails in the two-by-four.
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Mr. Viele and his wife, Pamela J. Harper, were originally named as defendants. The claims
against Pamela J. Harper were dismissed and this has not been appealed.
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Q. Okay. So you already had several nails in your end of the two-by-four?
A. Yes.
Q. And it was attached?
A. It was holding to the wall.
Q. And then you hit it again with the hammer?
A. Yes.
Q. And what happened after you hit it with the hammer?
A. It bounced back. It came loose and hit me in the head.
Q. The two-by-four did?
A. That’s correct.
Q. Where did it—what part of your head did it hit?
A. I don’t know. It knocked me off balance.
...
Q. About how far away from you was Mr. Viele just before this happened?
A. Oh, he was perhaps 5 or 6 feet away and 10 feet down.
...
Q. And what was Mr. Viele doing while you were attempting to attach your
end of the two-by-four to the wall?
A. He was holding the lower end.
Q. What did Mr. Viele do that caused the two-by-four to come out?
A. I don’t know.
Q. Do you know if he did anything?
A. I don’t know that he did anything.
...
Q. Do you know of anything that Mr. Viele did or didn’t do that caused
your fall?
A. I don’t know.
Mr. Viele’s deposition testimony affirmed that he was “just holding the board” while
Plaintiff hammered.
Mr. Viele moved for summary judgment and filed an affidavit as well as a
statement of the material facts as to which he contended there was no genuine issue for
trial. Plaintiff responded to the statement of material facts and also filed an affidavit. In
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the affidavit, which was submitted a year after Plaintiff’s deposition testimony and over
three years after the accident, he stated as follows:
I testified in my deposition that the board bounced back, knocking me off
balance and causing me to fall off the ladder. However, Mr. Viele’s failure
to stabilize his end of the board is what caused the board to ‘bounce back,’
fall, and hit me, knocking me off the ladder on October 7, 2017. I testified
at my deposition that I did not know that Mr. Viele did anything to cause
the two-by-four to come out of the wall, which I maintain today is true.
Instead, it is the absence of his action—namely his failure to stabilize the
board—that caused my fall.
In response to Mr. Viele’s motion, Plaintiff argued that his affidavit demonstrated that
genuine issues of material fact precluded summary judgment.
The trial court heard the motion for summary judgment on April 16, 2021. By
then, Plaintiff’s claim was distilled to one for personal injury negligence. Mr. Viele
conceded at the summary judgment hearing that he assumed the duty of care to hold his
end of a two-by-four board during the task at hand. Following the arguments of counsel,
the trial court announced its ruling from the bench. The prevailing party, Mr. Viele,
prepared the trial court’s order. Plaintiff submitted a competing order. The trial court
reviewed and entered the order prepared by Mr. Viele. By order entered May 27, 2021,
the trial court granted summary judgment in Mr. Viele’s favor. The trial court
determined that no genuine issues of material fact were in dispute. The trial court found
that there was no evidence or factual allegation that Mr. Viele ceased holding the board
or that he allowed the board to move, slide, turn loose, fall, or drop. Citing Plaintiff’s
deposition testimony, the trial court determined:
To prevail, [Plaintiff] has the burden to prove that Mr. Viele breached a
duty that Mr. Viele either had or had assumed. [Plaintiff] is unable to do so
and admits that he does not know what Mr. Viele did or failed to do that
caused the accident. Therefore, Mr. Viele [has] demonstrated that
[Plaintiff’s] evidence is insufficient to establish this essential element of his
claim.
Further, the trial court reasoned that Plaintiff’s assertion in his affidavit and
arguments that Mr. Viele assumed a legal duty to “stabilize” the board, failed to do so,
and caused it to reverberate and knock Plaintiff off the ladder when he began hammering
the board was “a legal conclusion with no basis in fact or evidence to support it.”
Plaintiff appealed.
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II. ISSUES
We consolidate and restate the issues on appeal as follows:
A. Whether the trial court’s entry of summary judgment in favor of Mr.
Viele was proper.
B. Whether the trial court’s entry of a party-prepared order was in
violation of Tennessee Rule of Civil Procedure 56.04 and Smith v. UHS of
Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014).
III. STANDARD OF REVIEW
Summary judgment is appropriate “if 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.
When a party moves for summary judgment but does not have the burden of proof
at trial, the moving party must either submit evidence “affirmatively negating an essential
element of the nonmoving party’s claim” or “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). Once the moving party has satisfied this requirement, the
nonmoving party “‘may not rest upon the mere allegations or denials of [its] pleading.’”
Id. at 265 (quoting Tenn. R. Civ. P. 56.06). Rather, the nonmoving party must respond
and produce affidavits, depositions, responses to interrogatories, or other discovery that
“set forth specific facts showing that there is a genuine issue for trial.” Tenn. R. Civ. P.
56.06; see also Rye, 477 S.W.3d at 265. If the nonmoving party fails to respond in this
way, “summary judgment, if appropriate, shall be entered against the [nonmoving]
party.” Tenn. R. Civ. P. 56.06.
We review a trial court’s summary judgment determination de novo, with no
presumption of correctness. Rye, 477 S.W.3d at 250. Therefore, “we make a fresh
determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied.” Id. In reviewing a summary judgment motion on appeal,
“we are required to review the evidence in the light most favorable to the nonmoving
party and to draw all reasonable inferences favoring the nonmoving party.” Shaw v.
Metro. Gov’t of Nashville & Davidson Cnty., 596 S.W.3d 726, 733 (Tenn. Ct. App. 2019)
(citations and quotations omitted).
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IV. DISCUSSION
A.
A personal injury claim is one of negligence, requiring the plaintiff to prove five
essential elements:
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. []
Once duty and breach of duty have been established, and an injury
presented, the plaintiff must establish causation.
King v. Anderson Cnty., 419 S.W.3d 232, 246 (Tenn. 2013) (quoting Giggers v. Memphis
Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009)). As to the breach of duty element, our
Supreme Court has held:
Assuming a duty is owed, it must be determined whether [the] defendant
has exercised reasonable care under the circumstances. If [the] defendant
has not, the duty has been breached. In this regard, we have observed that
“[t]he term reasonable care must be given meaning in relation to the
circumstances. Ordinary, or reasonable, care is to be estimated by the risk
entailed through probable dangers attending the particular situation and is
to be commensurate with the risk of injury.”
McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 895 (Tenn. 1996) (citations
omitted); see also West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005).
In negligence actions, “questions regarding breach of duty, causation in fact, and
legal causation are ordinarily . . . for the jury.” Rains v. Bend of the River, 124 S.W.3d
580, 588 (Tenn. Ct. App. 2003); see also Eden W. ex rel. Evans v. Tarr, 517 S.W.3d 691,
695 (Tenn. Ct. App. 2015). “However, even these questions may be decided at the
summary judgment stage if the evidence is uncontroverted and if the facts and the
inferences drawn reasonably from the facts permit reasonable persons to draw only one
conclusion.” Rains, 124 S.W.3d at 588. “Tennessee courts have ‘always been
empowered to decide legal questions upon agreed facts.’” Rye, 477 S.W.3d at 262
(quoting Judy M. Cornett, Trick or Treat? Summary Judgment in Tennessee After
Hannan v. Alltel Publishing Co., 77 Tenn. L. Rev. 305, 311–12). “Tennessee Rule 56
‘simply embodies the common law’s recognition that if there is no factual dispute, there
is no need for trial.’” Id.
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Mr. Viele conceded that he assumed a duty to hold his end of the board at the
bottom corner. However, Mr. Viele maintains that no breach of duty on his part caused
Plaintiff’s injuries. So, we must address the question of whether Plaintiff has presented
sufficient evidence to advance his claim past the summary judgment stage on the element
of breach of duty. To do so, Plaintiff as 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, 477 S.W.3d at 265.
In his affidavit, Plaintiff posited that Mr. Viele’s “failure to stabilize the board . . .
caused [his] fall.” On appeal, relying on Hoynacki v. Hoynacki, No. E2015-02084-COA-
R3-CV, 2016 WL 6427857 (Tenn. Ct. App. Oct. 31, 2016), Plaintiff presses that “Mr.
Viele’s legal duty was to hold the board and keep it steady during [the] task.” Hoynacki
is distinguishable from the case before us. In Hoynacki, the plaintiff used a ladder to help
the defendant wax his recreational vehicle. Id. at *1. The ladder fell with the plaintiff on
it, causing him injury. Id. It was undisputed that “[w]hen the RV’s height required the
use of a ladder, [the] plaintiff got on it to wax the top parts, and [the] defendant stayed on
the ground to help stabilize and secure the ladder.” Id. For purposes of summary
judgment, it was taken as true that, right before the accident, the defendant placed the
ladder on sloping ground such that the ladder’s left side was lower than its right side. Id.
The defendant then ceased holding the ladder and walked away to the other side of the
RV. Id. Based on the parties’ testimony, we held that the “defendant assumed a duty to
stabilize and secure the ladder while [the] plaintiff was working on it.” Id. at *6
(emphasis added). In vacating the trial court’s grant of summary judgment under the
circumstances of that case, we concluded that whether the Hoynacki defendant breached
that duty was a determination for the trier of fact. Id.
Here, Mr. Viele’s duty to hold the board is unchallenged. However, Plaintiff cites
no evidence in the record indicating that it was Mr. Viele’s end of the board that moved
or became unsteady. Unlike in Hoynacki, there is no factual assertion that Mr. Viele
walked away or otherwise ceased to hold the board. Plaintiff cannot set forth any specific
fact as to what Mr. Viele was doing when the board bounced back after Plaintiff hit it
with a hammer. This is because Plaintiff was not looking at Mr. Viele who, by Plaintiff’s
own testimony, was “5 to 6 feet away and 10 feet down” from where Plaintiff was
working. Plaintiff testified that the top end of the board was “holding to the wall” once
he nailed it in. He hit it again with the hammer and it bounced back and knocked him off
the ladder. In other words, the undisputed facts establish that the accident occurred not
when Mr. Viele’s end of the board moved but when Plaintiff’s end of the board bounced
back and hit his head.
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“The nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Rye, 477 S.W.3d at 265 (quoting
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Because of the absence of evidence that Mr. Viele did anything besides hold the board
coupled with Plaintiff’s unequivocal testimony that he does not know what Mr. Viele did
or did not do to cause his fall, Plaintiff is unable to prove that Mr. Viele breached his duty
of care. By submitting evidence that he held the lower end of the board in place while
Plaintiff hammered his end of the board, Mr. Viele affirmatively negated an essential
element of Plaintiff’s claim and demonstrated that Plaintiff’s evidence at the summary
judgment stage was insufficient to prove his claim of negligence. See Rye, 477 S.W.3d at
264. In response, Plaintiff failed to demonstrate, by affidavits or otherwise, that there
was a genuine issue of material fact to necessitate a trial. See id. at 265. Therefore,
summary judgment was properly entered and we affirm the trial court’s decision granting
Mr. Viele’s motion for summary judgment.
B.
Plaintiff contends that the final order does not reflect the trial court’s independent
judgment because the court entered “the order drafted by defense counsel, even though it
differed from the trial court’s findings and conclusions as stated in the transcript [of] the
hearing.”
Tennessee Rule of Civil Procedure 56.04 provides that “[t]he trial court shall state
the legal grounds upon which the court denies or grants the motion [for summary
judgment], which shall be included in the order reflecting the court’s ruling.” In Smith v.
UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014), our Supreme Court explained the
application of this rule in the context of party-prepared orders on summary judgment:
At the outset, we do not find that Tenn. R. Civ. P. 56.04 is in any way
inconsistent with the custom of permitting trial courts to request and
consider proposed orders prepared by the prevailing party. However, as we
emphasized in the context of the findings of fact and conclusions of law
required by Tenn. R. Civ. P. 52.01, Tenn. R. Civ. P. 56.04 must be
interpreted in a way that assures that a trial court’s decision whether to
grant or deny a motion for summary judgment is its own. Delevan-Delta
Corp. v. Roberts, 611 S.W.2d at 53.
Smith, 439 S.W.3d at 316 (footnote omitted). The Supreme Court concluded “that Tenn.
R. Civ. P. 56.04 requires the trial court, upon granting or denying a motion for summary
judgment, to state the grounds for its decision before it invites or requests the prevailing
party to draft a proposed order.” Id. (footnote omitted). As to party-prepared orders
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generally, these are permitted if “two conditions are satisfied. First, the findings and
conclusions must accurately reflect the decision of the trial court. Second, the record
must not create doubt that the decision represents the trial court’s own deliberations and
decision.” Id. at 315–16.
Our review of the summary judgment hearing transcript indicates that the trial
court clearly stated the legal grounds upon which Mr. Viele’s summary judgment motion
was granted. Tenn. R. Civ. P. 56.04. In its ruling from the bench, the trial court
specifically referenced Plaintiff’s deposition testimony that he did not know what caused
the two-by-four board to “come out” and what action or inaction by Mr. Viele caused his
fall. The order drafted by Mr. Viele’s counsel both incorporated the trial court’s findings
made in its oral ruling and properly drew from Plaintiff’s admissions set forth in his
response to the statement of material facts. See Tenn. R. Civ. P. 56.04 (“[T]he judgment
sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file . . . show that there is no genuine issue as to any
material fact[.]”). The trial court then reviewed the order and corrected a minor error
within it. Reading the transcript and the final order together, we discern that the order’s
findings and conclusions accurately reflect the trial court’s decision. Smith, 439 S.W.3d
at 316. Further, the record does not create doubt that the decision represents the trial
court’s own deliberations and decision. Id. As such, we find and hold that the trial court
complied with Tennessee Rule of Civil Procedure 56.04 and with Smith v. UHS of
Lakeside, Inc.
V. CONCLUSION
We affirm the trial court’s judgment. The case is remanded for such further
proceedings as are necessary and consistent with this opinion. Costs of the appeal are
taxed to the appellant, Timothy Lee Malone.
_________________________________
JOHN W. McCLARTY, JUDGE
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