stating that the governmental entity “must own and control the location or instrumentality alleged to have caused the injury”
How later courts described this case
- stating that the governmental entity “must own and control the location or instrumentality alleged to have caused the injury”
- setting forth the three essential elements the plaintiff is required to prove in order to establish a cause of action under the statute
- “Summary judgments should not be used to find facts, to resolve factual disputes, or to choose among various permissible factual inferences. Thus, courts should not weigh the evidence in summary judgment proceedings, and likewise, they should not make credibility determinations.”
- an “essential ingredient” of action under section 203(a) of the GTLA is “the local government must own and control the location or instrumentality alleged to have caused the injury”
Written by the judges who cited it.
The opinion
TODD, Presiding Judge,
Middle Section, concurring.
Concurring in the result reached, I respectfully assert my conviction that, when a Defendant moves for summary judgment the burden of producing evidence to support evidence of every aspect of his case does not pass to the Plaintiff until Defendant has produced or pointed out evidence to negative every aspect of the ease. The burden shifts to the Plaintiff only to contradict the evidence offered or pointed out by Defendant.
Of course, evidence that Plaintiff cannot prove one or more aspects of his case does shift the burden to Plaintiff to show how he can prove such aspects, but proof of such inability must come from Plaintiffs admissions or equally substantive evidence. As stated in Byrd v. Hall, (Tenn.1995), 847 SW2d 208, 213 , “a conclusory assertion that the non-moving party has no evidence is clearly insufficient.”