Eltricia Laree Cook v. Gary Lynn Fuqua

01/27/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 5, 2021 Session

ELTRICIA LAREE COOK V. GARY LYNN FUQUA ET AL.

Appeal from the Circuit Court for Macon County

No. 56CC1-2019-CV-107 Clara W. Byrd, Judge

No. M2021-00107-COA-R3-CV

A woman sued a homeowner for negligence due to injuries she sustained when a pot-

bellied pig maintained on the homeowner’s property jumped on her and knocked her off of

the homeowner’s front porch. The homeowner filed a motion for summary judgment

arguing that he did not owe the woman a duty of reasonable care because she was a

trespasser. The trial court granted the motion for summary judgment, and the woman

appealed. Determining that genuine issues of material fact still exist because the

homeowner failed to establish that the woman was a trespasser, we reverse the trial court’s

judgment.

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

Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Aldo J. Stolte, Nashville, Tennessee, for the appellant, Eltricia Laree Cook.

Arthur Edward McClellan, Gallatin, Tennessee, for the appellee, Gary Lynn Fuqua.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Gary Lynn Fuqua owns real property in LaFayette, Tennessee where he resided with

his wife, Lisa Fuqua, and his adult step-son, James Allen Tipton. Mr. Tipton owned two

pot-bellied pigs that Mr. Fuqua permitted him to keep in a fenced-in area on the property.

On October 12, 2018, the pigs began running at large after Mr. Tipton intentionally released

them from the fenced-in area. Mr. Fuqua was not on the property that day and, in fact, had

not been there in approximately a month due to an order of protection being issued against

him that prohibited him from coming onto the property.

Around the time that Mr. Tipton released the pigs from the fenced-in area, Eltricia

Laree Cook was visiting her father, who lived across the street from Mr. Fuqua. Ms. Cook

heard a loud noise coming from her father’s storm door and went to investigate the source

of the noise. Upon reaching the door, she discovered that the pigs had wandered across the

street and onto her father’s property; she believed one of the pigs had caused the loud noise

by jumping against the storm door.

Ms. Cook herded the pigs back onto Mr. Fuqua’s property and went onto his front

porch to knock on the door and inform him or Mr. Tipton that the pigs were running at

large. One of the pigs, Baxter, followed her up onto the porch. While Ms. Cook was

knocking on the door, Baxter jumped against her back, causing her to fall off of the porch.1

She sustained personal injuries in the fall.2

Ms. Cook filed a complaint against both Mr. Fuqua and Mr. Tipton3 on September

18, 2019, alleging that she was injured as a result of their negligence in permitting the pigs

to run at large. Although Mr. Fuqua did not own the pigs, Ms. Cook alleged that he was

liable for her injuries because he knew prior to the incident that the pigs “got out of the

fence often” but did nothing to remedy the situation. Following discovery, Mr. Fuqua filed

a motion for summary judgment arguing that Ms. Cook was a trespasser and, as such, he

merely owed her a duty “to not cause her injury intentionally, with gross negligence, or by

willful and wanton conduct.” Because Ms. Cook failed to allege that he acted intentionally,

engaged in gross negligence, or willfully or wantonly caused her fall, Mr. Fuqua asserted,

she failed to establish that he breached a duty owed to her.

After hearing the matter, the trial court entered an order granting summary judgment

to Mr. Fuqua. The court concluded that he was entitled to summary judgment because Ms.

Cook “was a trespasser as that term is defined by Tennessee Code Annotated § 29-34-

208(a)(2); and the Complaint does not allege: that [Mr. Fuqua] was guilty of gross

negligence; that he intentionally caused the fall; and/or that he willfully and/or wantonly

caused the fall.” Thereafter, Ms. Cook filed a motion to alter or amend the judgment to

make it a final order, which the trial court granted.

On appeal, Ms. Cook presents one issue for our review: whether the trial court erred

in granting summary judgment to Mr. Fuqua.

1

Mr. Fuqua testified that the pigs weighed approximately “40 or 50 pounds” at the time of the incident.

2

It is unclear from the record what specific injuries Ms. Cook suffered in the fall.

3

Mr. Tipton failed to file an answer or appear in the trial court. He is not a party to this appeal.

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STANDARD OF REVIEW

We review a trial court’s summary judgment determination de novo, with no

presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d

235, 250 (Tenn. 2015). This means that “we make a fresh determination of whether the

requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.”

Id. We “must view the evidence in the light most favorable to the nonmoving party and

must draw all reasonable inferences in that party’s favor.” Godfrey v. Ruiz, 90 S.W.3d 692,

695 (Tenn. 2002); see also Acute Care Holdings, LLC v. Houston Cnty., No. M2018-

01534-COA-R3-CV, 2019 WL 2337434, at *4 (Tenn. Ct. App. June 3, 2019).

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. A disputed fact is material if it is determinative

of the claim or defense at issue in the motion. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76,

84 (Tenn. 2008) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). When a party

moves for summary judgment but does not have the burden of proof at trial, the moving

party must submit evidence either “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, 477 S.W.3d at 264. 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. If the moving party fails to show he or she is entitled to summary

judgment, however, “‘the non-movant’s burden to produce either supporting affidavits or

discovery materials is not triggered and the motion for summary judgment fails.’” Martin

v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008) (quoting McCarley v. W. Quality

Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)).

ANALYSIS

Ms. Cook’s claim is one of negligence. To establish prima facie proof of

negligence, a plaintiff must prove five essential elements: “(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 that duty; (3) an injury or loss; (4) causation in fact; and (5)

proximate or legal cause.” Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn. 2005). This case

concerns the duty element. The existence of a duty is a question of law. Id. The trial court

concluded that Mr. Fuqua owed Ms. Cook no duty of care “except to refrain from willfully,

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with negligence so gross as to amount to willfully, intentionally, or wantonly causing [her]

injury” because she was a trespasser at the time of the incident. Tenn. Code Ann. § 29-34-

208(b). Therefore, in analyzing this issue, we must first consider the definition of a

trespasser.

More than one hundred and fifty years ago, our Supreme Court defined “trespass”

as “every entry upon the soil of another, in the absence of a lawful authority, without the

owner’s license.” Norvell v. Gray’s Lessee, 31 Tenn. 96, 103 (Tenn. 1851); see also State

v. Christensen, 517 S.W.3d 60, 76 (Tenn. 2017). The General Assembly codified this

definition in 2012 with the adoption of Tenn. Code Ann. § 29-34-208(a)(2), which defines

“trespasser” as “a person who enters or remains on the real property of another without

actual or implied permission, or a person who engages in conduct that constitutes a criminal

trespass offense under [Tenn. Code Ann. §§ 39-14-405 to -407].” Relying on this

definition, the trial court found that Ms. Cook was a trespasser because Mr. Fuqua had not

given her permission, actual or implied, to come onto the property.

Ms. Cook does not dispute that Mr. Fuqua did not, at any time, give her actual

permission to enter onto the property. Instead, she contends that the trial court erred in

finding that she was a trespasser because she had Mr. Fuqua’s implied permission to come

onto the property. We agree. Consent to go onto another person’s property “may be

implied from custom, usage and conduct.” State v. Walker, C.C.A. No. 41, 1989 WL

100825, at *2 (Tenn. Crim. App. Sept. 1, 1989). For example,

the custom in this country is for a person to enter the premises of another for

a lawful purpose without first obtaining express consent. The entry may

consist of using the driveway for a vehicle, walking to a door of the dwelling

and ringing the doorbell; or it may consist of similar appropriate use of the

premises outside of the dwelling in connection with contacting the occupant.

In the absence of an indication such an entry is prohibited[,] the visitor has

the occupant’s implied consent and is not a trespasser.

Id. Moreover, a landowner’s consent or permission may be implied in the following

circumstance:

when the owner’s conduct would warrant a reasonable person to believe that

the owner had given consent to enter the premises, even in the absence of an

invitation to enter. For instance, one who engages in a conversation with an

entrant and does not ask that person to leave may not later complain about a

trespass.

The landowner’s knowledge of the entries and of the trespassers’

resulting behavior is a key factor. Actual willingness to allow entry may be

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inferred from inaction in the face of a prior entry, but only if the owner had

actual knowledge of the trespasser’s intention to enter.

75 AM. JUR. 2D Trespass § 76 (2021) (footnotes omitted).

According to Ms. Cook, she went onto the property in connection with contacting

either Mr. Fuqua or Mr. Tipton about the pigs running at large. Nothing in the record

indicates that Mr. Fuqua prohibited such an entry. Indeed, Mr. Fuqua testified that Ms.

Cook had been on his property prior to the date of the incident, and he admitted that he did

not object to her being there on that prior occasion. In light of Mr. Fuqua’s inaction after

the prior entry, it may be implied that Ms. Cook had his permission to come onto the

property on the day of the incident. We, therefore, conclude that the trial court erred in

determining that Mr. Fuqua established that Ms. Cook was a trespasser and that he merely

owed her the limited duty of care set out in Tenn. Code Ann. § 29-34-208(b).4

What duty of care then, if any, did Mr. Fuqua owe to Ms. Cook? Because “prior

court decisions and statutes have already established the doctrines and rules” governing

duty determinations, “the presence or absence of a duty is [generally] a given rather than a

matter of reasoned debate, discussion, or contention. Satterfield v. Breeding Insulation

Co., 266 S.W.3d 347, 365 (Tenn. 2008). For instance, our Supreme Court has held that a

defendant ordinarily owes a duty to protect a plaintiff against unreasonable risks of harm.

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). A risk is unreasonable “if the

foreseeable probability and gravity of the harm posed by the defendant’s conduct outweigh

the burden upon defendant to engage in alternative conduct that would have prevented the

harm.” Id. Tennessee courts have also held that premises owners have a duty “to maintain

the premises in a reasonably safe and suitable condition” by “either removing or warning

against any latent dangerous condition on the premises of which [the premises owners]

were aware or should have been aware through the exercise of reasonable diligence.”

Eaton v. McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994). Regarding domesticated animals,

we have previously stated that the owner owes the following duty of care:

The owner of a domesticated animal may be held liable for the harm

the animal causes if he or she negligently failed to prevent the harm. Thus,

the owner of a domesticated animal must exercise such reasonable care to

prevent the animal from injuring another as an ordinarily careful and prudent

person would exercise under the same circumstances. The owner cannot

permit the animal to run at large and cannot knowingly or negligently permit

the animal to escape and fail to make reasonable efforts to capture it.

4

In connection with the trespass issue, Ms. Cook makes an agency theory argument in her appellate

brief. Because we have determined that Mr. Fuqua failed to establish that she was a trespasser, this issue

is pretermitted.

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Stinson v. Carpenter, No. 01A01-9601-CV00036, 1997 WL 24877, at *4 (Tenn. Ct. App.

Jan. 24, 1997) (citations omitted); see also Tenn. Code Ann. §§ 44-8-109 to -110 (requiring

that owners of “notoriously mischievous stock, known to be in the habit of throwing down

or jumping fences” keep such livestock confined on their premises or suffer liability for

damages to enclosure or crops of another); McElroy v. Carter, No. M2005-00414-COA-

R3-CV, 2006 WL 2805141, at *4 (Tenn. Ct. App. Sept. 29, 2006) (stating that “as a general

rule, where an owner of animals negligently allows them to run at large, he or she is liable

for damages caused by that negligence”).

Mr. Fuqua argues that he did not owe Ms. Cook a duty of reasonable care because

it is undisputed that he did not own the pigs and that he had not been “in possession” of the

premises for approximately a month prior to the incident due to the order of protection.

The parties have not cited to any Tennessee cases directly on-point with these facts, and

this Court is unaware of any. The facts of this case, however, share some similarities with

cases involving a landlord who leases property to a tenant who maintains a vicious dog on

the property. Therefore, we look to those cases for guidance in determining whether the

risk of harm from the pigs running at large was an unreasonable risk that gave rise to Mr.

Fuqua owing a duty of reasonable care to Ms. Cook. In those cases, although the

landowner/landlord does not own the animal nor does he or she have possession of the

leased property, the landowner/landlord may be held liable for the acts of the animal if he

or she “had knowledge of the propensity of the [animal] to violence and that he [or she]

retained sufficient control over the . . . premises to afford an opportunity for the

[landowner/]landlord to require the tenant to remove the [animal].” Langford v. Darden,

No. M2004-00158-COA-R3-CV, 2005 WL 378774, at *2 (Tenn. Ct. App. Feb. 16, 2005).

In other words, a duty of reasonable care arises from the landowner/landlord knowing of

the unsafe condition on the premises created by the animal. See McKenna v. Jackson, No.

01-A-01-9510-CV00438, at *2 (Tenn. Ct. App. Mar. 29, 1996).

Applying this principle to the facts in the present case, it is clear that issues of

material fact remain in dispute. Regarding prior notice, Ms. Cook submitted the affidavit

of Ms. Fuqua stating that the pigs had run at large “[o]n more than ten (10) occasions” prior

to the incident at issue in this case and that the pigs “had a bad habit of jumping up on

things.” Ms. Fuqua further stated that Mr. Fuqua “was fully aware” of both of those facts.

Additionally, Mr. Fuqua admitted during his deposition that the pigs had been on the

property long before the incident occurred and that he told Mr. Tipton “he needed to get

rid of them” because “they [were] going to cause trouble.”

Although the order of protection prohibited Mr. Fuqua from coming onto the

property, he still should have retained sufficient control over it to force Mr. Tipton to

remove the pigs or to keep them properly secured in the fenced-in area because the order

of protection did not constitute a lease entitling Mr. Tipton to exclusive possession of the

property. Mr. Fuqua still retained his legal rights over the property and could have sought

removal of the pigs without stepping foot on the property. See Langford, 2005 WL 378774,

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at *2 (“It is settled in law in this jurisdiction that “[a] tenant is entitled to the exclusive

possession of the leased premises against the landlord for a landlord retains no rights over

leased premises, except such as are reserved and clear in express terms.”). Based on the

foregoing facts, we conclude that issues of material fact remain in dispute regarding

whether Mr. Fuqua had sufficient knowledge of the pigs’ harmful behaviors and whether

he had sufficient control over the property allowing him an opportunity to remove or secure

the pigs. As a result, we conclude that the trial court erred in granting summary judgment.5

CONCLUSION

The judgment of the trial court is reversed, and the matter is remanded for further

proceedings consistent with this opinion. Costs of this appeal are assessed against the

appellee, Gary Lynn Fuqua, for which execution may issue if necessary.

_/s/ Andy D. Bennett_______________

ANDY D. BENNETT, JUDGE

5

In his appellate brief, Mr. Fuqua argues that this appeal is utterly devoid of merit and seeks an award

of damages pursuant to Tenn. Code Ann. § 27-1-122. In light of our decision to reverse the trial court’s

judgment, it is clear that the appeal has merit. Mr. Fuqua’s request is denied.

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