Marquica L. Beasley v. Jae Nails Bar, LLC

12/11/2023

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 3, 2023 Session

MARQUICA L. BEASLEY ET AL. v. JAE NAILS BAR, LLC

Appeal from the Circuit Court for Davidson County

No. 19C1530 Thomas W. Brothers, Judge

___________________________________

No. M2022-01330-COA-R3-CV

___________________________________

This is a premises liability action in which the plaintiff slipped and fell while she was

walking to a pedicure station in a nail salon. Two principal issues are presented. First, the

plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion

for spoliation of evidence by finding that the defendant was not put on notice that a video

recording from a surveillance camera in the nail salon was relevant to pending or

reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by

summarily dismissing her complaint on the basis that there was no proof that the defendant

had created the allegedly hazardous condition in the nail salon or that the defendant had

actual or constructive notice of the condition. We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Luvell L. Glanton, Nashville, Tennessee, for the appellants, Marquica L. Beasley and Trent

Beasley.

Colin B. Calhoun, Nashville, Tennessee, for the appellee, Jae Nails Bar, LLC.

OPINION

FACTS AND PROCEDURAL HISTORY

Marquica Beasley (“Mrs. Beasley”) and her husband, Trent Beasley (“Mr.

Beasley”) (or collectively “Plaintiffs”), brought this personal injury action on the basis of

negligence and loss of consortium after an incident that occurred at a nail salon owned and

operated by Jae Nails Bar, LLC (“Defendant”).1 On July 12, 2018, Mrs. Beasley and her

1

Defendant provides manicure and pedicure services.

16-year-old daughter were at Jae Nails Bar when Mrs. Beasley was called back to receive

a pedicure. As she walked to the pedicure station, Mrs. Beasley slipped on the tile floor.

The salon manager, Kiet Luc (“Mr. Luc”), heard “what sounded like a fall” and observed

Mrs. Beasley sitting on the tile floor of the salon. Mr. Luc offered to assist Mrs. Beasley in

getting up, but she declined, getting up on her own.

Mrs. Beasley did not leave immediately following her fall; instead, she remained at

the salon and received a pedicure. Mrs. Beasley later testified that by the time her pedicure

service was complete, “the right side of my ankle and right side of my foot . . . the whole

area [was] swollen. . . . I just remember my foot wouldn’t go all the way back into my shoe

and it was time for me to go to the doctor.”

Mrs. Beasley also testified to a “dust” or “residue . . . all on the palm of my hand,

on the back of my pants, on my elbows, . . . on the bottom of my shoes, everywhere.” Mrs.

Beasley’s daughter testified to seeing “dust on my mother’s clothes, hands, and arms” and

that she “helped brush some of the debris off her clothes.” As she was leaving the salon,

Mrs. Beasley took a photo of the residue on the floor, which was later introduced as an

exhibit. However, Mrs. Beasley stated that the photo did not reveal the amount of dust that

was on the floor at the time that she fell. She did not take photographs of the dust on her

clothing.

Mr. Luc testified that he “inspected the floor and did not observe any slippery or

dangerous condition on the surface of the tile floor where Mrs. Beasley’s fall occurred.”

Angie Hoang, the owner of the salon, arrived at the salon after Mrs. Beasley’s fall and had

the same observations about the floor as Mr. Luc.

Mrs. Beasley never returned to Defendant’s salon and neither she nor her counsel

communicated with Defendant following the incident until after this action was

commenced.

On June 28, 2019, Plaintiffs filed their complaint, asserting a claim based on

premises liability and loss of consortium. Defendant filed its answer on March 23, 2020,

asserting as defenses, inter alia, failure to state a claim, assumption of risk, and lack of

notice of the dangerous condition.

During discovery, Plaintiffs learned that Defendant had a surveillance camera that

monitored the interior of the salon, but that the video recording of the day in question was

overwritten as a matter of course six months after the incident. Consequently, in December

2021, Plaintiffs filed a “Motion for Curative Action to Remedy TRCP 34A.02 Violations,”

alleging spoliation of video evidence from cameras that monitored the nail salon.

Specifically, in response to Defendant’s statement that it was “not in possession of any

footage captured in July of 2018, as the captured video is automatically overwritten every

six months,” Plaintiffs argued that “at the time the evidence was destroyed, Jae Nails Bar,

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LLC knew or should have known that the evidence was relevant to reasonably foreseeable

litigation.” Plaintiffs also argued that “Defendant either intentionally caused and/or

negligently or inadvertently allowed for critical evidence of camera footage showing the

fall and surrounding conditions to conveniently disappear or be discarded.” Then on June

21, 2022, Plaintiffs filed a second “Motion for Spoliation and Curative Action to Remedy

TRCP 34A.02 Violations” that included additional testimony from Mr. Luc regarding the

surveillance system, stating that he “almost never checks” and “never watched any” of the

camera footage.

Pursuant to an order entered on July 26, 2022, the court found that “Rule 34A.02

sanctions are not appropriate” in this case because

there is nothing in the record to suggest that Jae Nails Bar knew or should

have known that the video tape in the case at hand was relevant to pending

or reasonably foreseeable litigation as they were not put on notice that the

Plaintiff was injured to the extent that she planned to file a lawsuit.

Furthermore, the court noted that the complaint “was not filed until almost a year

after the fall at issue and [neither] the Plaintiff nor her counsel contacted the defendant

after the date of injury to let them know that a lawsuit was imminent.” The court further

found “no evidence that the video tape was erased with any intentional or fraudulent intent

to conceal any evidence.”

In the interim, on May 13, 2022, Defendant filed a motion for summary judgment

on the ground that “it did not have actual or constructive knowledge of any hazardous

condition on the surface of the tile floor which allegedly caused Mrs. Beasley’s fall.”

Plaintiffs timely filed a response in opposition to the motion.

Pursuant to an order entered on August 23, 2022, the trial court granted Defendant’s

motion for summary judgment. The relevant portion of the trial court’s order granting

summary judgment reads as follows:

Reviewing the evidence in the light most favorable to the non-moving party,

and drawing all reasonable inferences in favor of the non-moving party, the

Court finds as follows:

In order for an operator or owner of a property to be held liable

for negligence in allowing a dangerous of defective condition,

the plaintiff must show that the condition was caused or created

by the owner, operator or agent or if the condition was created

by someone else that the owner or operator had actual or

constructive knowledge that the condition existed prior to the

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accident. Blair v West Town Mall, 130 S.W.3d 761, 764 (Tenn.

2004).

The Court finds that it is undisputed that the defendant

remodeled the premises. The Court also finds that it is

undisputed that the remodeling was completed in May of 2018.

(Deposition of Angie Hoang page 9, line 15.) The incident in

the case at hand occurred on July 12, 2018. The Court further

finds that it is disputed what if any substance was on the floor

which made the Plaintiff fall, however, the Court does not need

to determine this issue as the Court finds that there is no proof

that the defendant created the condition or had actual or

constructive notice of any condition. Even taking as true the

Plaintiff's statement that there was a residue of some sort on

the back of her black pants and shirt, the Court finds that there

is no proof how long any alleged dust and/or other fibrous

substance was on the floor or how it got on the floor. Based on

all of the foregoing, the Court finds that there is no genuine

issue of material fact and that Defendant has negated an

essential element of Plaintiffs’ claim. Therefore, Defendant is

entitled to judgment as a matter of law.

This appeal followed.

ISSUES

The issues presented, which we have rephrased and consolidated, are:2

1. Whether the trial court abused its discretion and erred in denying Plaintiffs’

Motion for Spoliation and Curative Action to Remedy Tenn. R. Civ. P.

34A.02 Violations?

2

Plaintiffs raised a third issue, “Did the trial court error by granting Defendant’s motion for

summary judgment by making a finding that was not argued by Defendant and was not supported by the

record?” However, Plaintiffs failed to present a meaningful argument with citations to authorities in their

brief. See Tenn. R. App. P. 27(a)(7)(A). Thus, this issue is waived. See Sneed v. Bd. of Prof’l Resp. of Sup.

Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate, to research or

construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in

support of his or her contention or merely constructs a skeletal argument, the issue is waived.”); see also

Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006) (holding that the failure of a party to

cite to any authority or to construct an argument regarding his or her position on appeal constitutes waiver

of that issue).

.

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2. Whether the trial court erred in granting Defendant’s Motion for Summary

Judgment on the basis that there was “no proof” regarding how long any

debris had been present on the floor, despite the fact that Tennessee case law

allows a jury to consider contextual facts beyond merely the exact time an

unreasonably unsafe condition was created on a floor?

ANALYSIS

I. SPOLIATION OF EVIDENCE

Plaintiffs contend that the trial court abused its discretion when it denied their

Motion for Spoliation and Curative Action to Remedy Tennessee Rule of Civil Procedure

34A.02 Violations. More specifically, Plaintiffs submit that the trial court abused its

discretion by reaching a decision based on a “clearly erroneous assessment of the

evidence,” citing Wright ex rel. Wright v. Wright, 337 SW 3d 166, 176 (Tenn. 2011).

Tennessee Rule of Civil Procedure 34A.02 provides that “Rule 37 sanctions may be

imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or

conceals evidence.”3 Tennessee courts may impose a range of sanctions under Rule 37.02

for violation of a discovery order. Tatham v. Bridgestone Americas Holding, Inc., 473

S.W.3d 734, 744 (Tenn. 2015); see Tenn. R. Civ. P. 37.02. These sanctions may include,

inter alia, an order precluding the offending party from maintaining a claim or defense, an

order establishing certain facts as true, an order striking pleadings or portions of pleadings,

and entry of a default judgment against the disobedient party. Id. In Tatham, our Supreme

Court stated as follows:

The determination of whether a sanction should be imposed for the spoliation

of evidence necessarily depends upon the unique circumstances of each case.

3

As is explained in Tatham, 473 S.W.3d at 744:

Prior to Rule 34A.02, Rule 37 sanctions were limited to failures to comply with discovery

orders and, therefore, generally were not available for the spoliation of evidence occurring

prior to any such order. See Tenn. R. Civ. P. 37; Alexander, 156 S.W.3d at 15 (noting that

Rule 37 does not “explicitly provide for sanctions for discovery abuse absent a court

order”). Notably, however, in Mercer and Lyle, this Court upheld the inherent power of

trial courts to impose sanctions to prevent abuse of the discovery process even while

recognizing the fact that such sanctions were not expressly authorized by the Rules of Civil

Procedure. Mercer, 134 S.W.3d at 133; Lyle, 746 S.W.2d at 699; see also Alexander, 156

S.W.3d at 15. Thus, the adoption of Rule 34A.02 effectively codified the inherent authority

already recognized by Tennessee courts to impose sanctions during the discovery process.

See Gross, 2007 WL 3171155, at *6 (noting that, although Rule 34A.02 did not apply at

the time of trial, “under both the pre-amendment and post-amendment rule, the court has

broad discretion in deciding what sanctions, if any, are appropriate”).

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Factors which are relevant to a trial court’s consideration of what, if any,

sanction should be imposed for the spoliation of evidence include:

(1) the culpability of the spoliating party in causing the

destruction of the evidence, including evidence of intentional

misconduct or fraudulent intent;

(2) the degree of prejudice suffered by the non-spoliating party

as a result of the absence of the evidence;

(3) whether, at the time the evidence was destroyed, the

spoliating party knew or should have known that the evidence

was relevant to pending or reasonably foreseeable litigation;

and

(4) the least severe sanction available to remedy any prejudice

caused to the non-spoliating party.

473 S.W.3d at 746–47 (footnote omitted).

It is within the broad discretion of a trial court to impose sanctions for the purpose

of preserving the integrity of the discovery process. Id. at 742 (citing Mercer v. Vanderbilt

Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004)). The authority of the trial court to impose

sanctions “is rooted in the trial court’s inherent power to ensure the proper administration

of justice.” Id. (citing Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1998)). “Trial court

decisions on pretrial discovery disputes are reviewed using an abuse of discretion

standard.” Funk v. Scripps Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019) (citing Lee

Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). Thus, we review a trial court’s

discretionary decision concerning the spoliation of evidence pursuant to the abuse of

discretion standard of review.

Discretionary decisions must take the applicable law and the relevant facts

into account. An abuse of discretion occurs when a court strays beyond the

applicable legal standards or when it fails to properly consider the factors

customarily used to guide the particular discretionary decision. A court

abuses its discretion when it causes an injustice to the party challenging the

decision by (1) applying an incorrect legal standard, (2) reaching an illogical

or unreasonable decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.

To avoid result-oriented decisions or seemingly irreconcilable precedents,

reviewing courts should review a lower court’s discretionary decision to

determine (1) whether the factual basis for the decision is properly supported

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by evidence in the record, (2) whether the lower court properly identified and

applied the most appropriate legal principles applicable to the decision, and

(3) whether the lower court’s decision was within the range of acceptable

alternative dispositions.

Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305 (Tenn. 2020)

(quoting Lee Med., Inc., 312 S.W.3d at 524–25 (citations omitted)).

In Mrs. Beasley’s affidavit in support of her motion, she testified that she yelled

when she fell, at which time her daughter and Mr. Luc came to her assistance. As Mrs.

Beasley explained in her deposition, she remained at the salon and received a pedicure,

during which she informed her attendant that she was experiencing pain and requested that

the attendant avoid rubbing the swollen area of her foot.4 This was supported by the

testimony of Mrs. Beasley’s daughter, who testified that Mrs. Beasley complained about

being injured while they remained at the nail salon.

It is undisputed, however, that no one notified Defendant, either on the day of the

incident or at any time prior to the commencement of this action, that a claim or law suit

was contemplated. Moreover, it is undisputed that no one notified Defendant to preserve

any evidence in anticipation of a possible law suit.

For its part, Defendant insists that Plaintiffs’ contentions lack a compelling

reasoning for the imposition of sanctions for several reasons, including, but not limited to,

the following:

4

Mrs. Beasley’s deposition testimony on this issue reads:

Q. Did you tell [Mr. Luc] that, you felt you were injured?

A. I don't remember having a conversation with [Mr. Luc], you know, after that. Maybe I

had told him I was going to the doctor, but I can’t remember if my leg was swelling or if I

mentioned it to the pedicure lady. I can’t recall that part.

Q. So at the time of the fall you had not actually had the pedicure, correct?

A. Correct.

Q. And that is the purpose you were there to get a pedicure?

A. Correct.

Q. And did you go ahead and proceed with getting the pedicure?

A. I did, and I told her she had to speed the pedicure up and stop touching the right part of

my ankle. As she was doing it, that’s when the swelling was getting more severe.

Q. So you told her to not touch where?

A. I told her she had to hurry up, I’m going – that’s when I’m thinking I told her I was

going to have to go to the doctor because she couldn’t touch the area anymore.

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(1) At no point in time after Mrs. Beasley’s fall did she or anyone acting on

her behalf contact Defendant and advise that she would be pursuing a

personal injury claim;

(2) At no point in time after Mrs. Beasley’s fall did she or anyone acting on

her behalf submit an “evidence preservation request” to Defendant regarding

video surveillance camera footage or anything else;

(3) Defendant had no notice that Plaintiffs were pursuing personal injury and

loss of consortium claims against it until 2020;5 and

(4) Any video surveillance camera footage capturing Mrs. Beasley’s fall

would have been overwritten after six months as a matter of routine operating

procedure;

In its order denying the motion, the trial court stated that it considered the factors

set forth in Tatham, 473 S.W.3d at 734, and concluded that Rule 34A.02 sanctions were

not appropriate for the following reasons:

Pursuant to the Tatham case, the Court must look at the totality of the

circumstances. The Court finds that there is nothing in the record to suggest

that Jae Nails Bar knew or should have known that the video tape in the case

at hand was relevant to pending or reasonably foreseeable litigation as they

were not put on notice that the Plaintiff was injured to the extent that she

planned to file a lawsuit. The Complaint in the case at hand was not filed

until almost a year after the fall at issue and [neither] the Plaintiff nor her

counsel contacted the defendant after the date of injury to let them know that

a lawsuit was imminent. In addition, the Court finds that there is no evidence

that the video tape was erased with any intentional or fraudulent intent to

conceal any evidence.

As noted earlier, Plaintiffs submit that the trial court abused its discretion by

reaching a decision based on a “clearly erroneous assessment of the evidence.”

Furthermore, as argued in their brief on appeal, Plaintiffs contend that

[b]ecause the trial court concluded that there was not a scintilla of evidence

to suggest that Defendant was put on notice of the seriousness of Plaintiff’s

injury, the trial court deprived the Plaintiffs the right to have the trial court

determine whether Defendant’s conduct could have risen to the degree to

have warranted spoliation sanctions.

5

The action was commenced in 2019, but Defendant insists that it did not receive notice of the

filing of the complaint until 2020 due to lack of service of process.

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It is apparent that Plaintiffs have misconstrued the court’s factual findings, as the

court did not state that “there was not a scintilla of evidence.” Instead, the court found that

there is nothing in the record to suggest that Jae Nails Bar knew or should have known that

the video tape in the case at hand was relevant to pending or reasonably foreseeable

litigation as they were not put on notice that the Plaintiff was injured to the extent that she

planned to file a lawsuit. Indeed, there is evidence that Mrs. Beasley fell, that she

experienced pain, and that she planned to see a doctor. However, this evidence is

insufficient to establish that Defendant “knew or should have known that the [video

recording] was relevant to pending or reasonably foreseeable litigation.” See Tatham, 473

S.W.3d at 747.

Moreover, as Defendant correctly notes, there is no evidence of intentional

destruction of evidence. As a routing practice, digital recordings taken by the surveillance

cameras in the nail salon are automatically overwritten every six months. This is significant

because sanctions for spoliation “[do] not arise where the destruction was a matter of

routine with no fraudulent intent.” Thurman-Bryant Elec. Supply Co., Inc. v. Unisys Corp.,

Inc., No. 03A01-CV00152, 1991 WL 222256, at *5 (Tenn. Ct. App. Nov. 4, 1991); see

also Tatham, 473 S.W.3d at 741 (“Since Thurman–Bryant, the Court of Appeals repeatedly

has emphasized that such negative inference may be drawn only where ‘the spoliation

occurs in circumstances indicating fraud and a desire to suppress the truth’ but not where

‘the destruction was a matter of routine with no fraudulent intent’”) (citations omitted).

Considering the unique circumstances of this case, see Tatham, 473 S.W.3d at 746,

including the absence of evidence suggesting that Defendant was culpable for causing the

destruction of the video recording, along with the absence of evidence indicating that

Defendant knew or should have known that the video recording was relevant to pending or

reasonably foreseeable litigation, we find no abuse of discretion with the trial court’s

decision to deny Plaintiffs’ Rule 34A.02 motion.

II. SUMMARY DISMISSAL

Plaintiffs also contend that the trial court erred by granting Defendant’s motion for

summary judgment. More specifically, they contend that the court erred by finding that

there was “no proof” regarding how long any debris had been present on the floor, despite

the fact that Tennessee case law allows a jury to consider contextual facts beyond merely

the exact time that an unreasonably unsafe condition was created on a floor.

This Court reviews a trial court’s decision on a motion for summary judgment de

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citations omitted). Accordingly, this court

must make a fresh determination of whether the requirements of Tennessee Rule of Civil

Procedure 56 have been satisfied. Id.; Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997).

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In so doing, we accept the evidence presented by the nonmoving party as true, consider the

evidence in the light most favorable to the nonmoving party, and draw all reasonable

inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

Summary judgment should be granted 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 moving party has the ultimate burden of

persuading the court that there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law.” Martin v. Norfolk S. R.R. Co., 271 S.W.3d

76, 83 (Tenn. 2008) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). As our

Supreme Court explained in Rye:

[W]hen the moving party does not bear the burden of proof at trial, the

moving party 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.

477 S.W.3d at 264 (emphasis in original).

To recover under a theory of premises liability, the plaintiff must establish the

elements of negligence, including: 1) a duty of care owed by the defendant to the plaintiff;

2) conduct below the applicable standard of care that amounts to a breach of that duty; 3)

an injury or loss; 4) cause in fact; and 5) proximate, or legal, cause. See Rice v. Sabir, 979

S.W.2d 305, 308 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

For the owner or operator of a premises to be held liable for negligence in allowing

a dangerous or defective condition to exist on its premises, the plaintiff must prove, in

addition to the elements of negligence, that: 1) the condition was caused or created by the

owner, operator or his agent, or 2) if the condition was created by someone other than the

owner, operator or his agent, that the owner or operator had actual or constructive notice

that the condition existed prior to the accident. Blair v. West Town Mall, 130 S.W.3d 761,

764 (Tenn. 2004) (citations omitted). The relevant legal principles are further explained in

Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341 (Tenn. 2014) as follows:

“Business proprietors are not insurers of their patrons’ safety.” Blair v. West

Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004); McCormick v. Waters, 594

S.W.2d 385, 387 (Tenn. 1980). Property owners are, however, required to

exercise due care under all the circumstances. Blair, 130 S.W.3d at 764. This

general duty of due care imposes upon a property owner the responsibility of

either removing, or warning against, any dangerous condition on the

premises of which the property owner is actually aware or should be aware

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through the exercise of reasonable diligence. Eaton v. McLain, 891 S.W.2d

587, 594 (Tenn. 1994). A property owner’s duty does not include, however,

“the responsibility to remove or warn against conditions from which no

unreasonable risk was to be anticipated, or from those which the occupier

neither knew about nor could have discovered with reasonable care.” Rice v.

Sabir, 979 S.W.2d 305, 308-09 (Tenn. 1998) (citations and internal quotation

marks omitted). . . . Thus, persons seeking to prevail against a property owner

on a premises liability claim must prove the elements of a negligence claim,

and in addition, must prove either that “the condition was caused or created

by the owner, operator, or his agent,” or “if the condition was created by

someone other than the owner, operator, or his agent, that the owner or

operator had actual or constructive notice that the condition existed prior to

the accident.” Blair, 130 S.W.3d at 764.

Id. at 350 (emphasis in original) (footnote omitted).

As noted earlier, the trial court found that it was undisputed that Defendant had hired

a contractor to remodel the premises. However, it also found it was undisputed that the

contractor completed the remodeling in May of 2018 and Mrs. Beasley’s fall did not occur

until July of 2018.6 While Plaintiffs do not dispute that the contractor’s services concluded

in May, they contend:

that the trial court made a critical factual error by concluding that there could

have been no construction work or residue caused or created by Defendant

post-May 2018. In fact, [Mr. Luc], Defendant’s agent and business partner,

was doing construction projects inside the building and could have created

the floor residue in July 2018. The trial court did not have a factual record

before it to support a ruling as a matter of law. There is nothing in the record

that forecloses the possibility that Defendant did not create the hazard.

We respectfully disagree, because, as the trial court correctly found, there is no

evidence that Defendant created the hazard that allegedly existed on the day that Mrs.

Beasley fell. Nevertheless, Plaintiffs contend that Mr. Luc created the hazard when he

installed new countertops and did some flooring work after the contractor had finished its

work in May. However, the only evidence Plaintiffs presented concerning Mr. Luc’s work

relates to a conversation that Mrs. Beasley had with Mr. Luc during a previous visit, her

second visit to the nail salon. As Mrs. Beasley explained in her deposition testimony in

response to a question from Defendant’s counsel:

6

Specifically, the trial court found that “it is undisputed that the remodeling was completed in May

of 2018. (Deposition of Angie Hoang page 9, line 15.) The incident in the case at hand occurred on July 12,

2018.”

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Q. So you mentioned granite countertops and I think you said something else.

A. Yeah. It was new countertops and flooring type work being done and I

was just asking, hey, telling [Mr. Luc] that everything looked nice or

whatever, you know, who did the work, just kind of joking and whatever,

and he was, like, no, I did the work, and he went on to say, no, I really did

the work, you know. He didn't say if he did all the work or anything like that,

but he did say that he had did [sic] what I was talking about. He had did [sic]

the work.

The record contains no additional evidence concerning Mr. Luc’s construction

work. Thus, while there is evidence that Mr. Luc performed some construction work after

the contractor completed its work in May, there is no evidence that Mr. Luc or anyone else

performed any construction work after Mrs. Beasley’s second visit to the salon. Thus,

contrary to Plaintiffs’ contentions, there is no evidence to support a finding that Defendant

created the alleged hazard at issue.

There being no proof that Defendant created the alleged hazard, we must consider

whether Defendant had actual or constructive notice of the alleged condition. See Blair,

130 S.W.3d at 764. In this regard, the trial court made the following findings:

Court finds that there is no proof that the defendant created the condition or

had actual or constructive notice of any condition. Even taking as true the

Plaintiff’s statement that there was a residue of some sort on the back of her

black pants and shirt, the Court finds that there is no proof how long any

alleged dust and/or other fibrous substance was on the floor or how it got on

the floor. Based on all of the foregoing, the Court finds that there is no

genuine issue of material fact and that Defendant has negated an essential

element of Plaintiff’s claim.

The record contains no evidence upon which to conclude that Defendant or its

agents or employees had actual knowledge of the existence of a hazardous condition on the

day in question. Thus, our final consideration is whether Defendant had constructive notice

of the alleged hazard. “Constructive notice” is explained in detail in Parker as follows:

“Constructive notice” is defined as “information or knowledge of a fact

imputed by law to a person (although he may not actually have it) because

he could have discovered the fact by proper diligence, and his situation was

such as to cast upon him the duty of inquiring into it.” Hawks v. City of

Westmoreland, 960 S.W.2d 10, 15 (Tenn. 1997) (quoting Kirby v. Macon

Cnty., 892 S.W.2d 403, 409 (Tenn. 1994)). Constructive notice may be

established by showing that a dangerous or defective condition existed for

such a length of time that a property owner, in the exercise of reasonable

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care, should have become aware of it. Blair, 130 S.W.3d at 764; Simmons v.

Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986). Constructive

notice may also be established by showing that the dangerous condition

resulted from “a pattern of conduct, a recurring incident, or a general or

continuing condition.” Blair, 130 S.W.3d at 765.

446 S.W.3d at 351–52.

Here, Plaintiffs contend that Defendant had constructive notice because its

employees should have been aware of the alleged hazard due to the location of the area

where Mrs. Beasley fell. Mrs. Beasley testified that the debris on the floor covered a 10 by

9 foot area of the nail salon. Further, Mr. Luc testified that the size of the store itself was

1,400-1,500 square feet. Mrs. Beasley also testified that she fell in the area located between

the manicure stations and the pedicure stations, which Defendant’s employees must

regularly walk across to do their jobs. Thus, Plaintiffs argue that when the evidence is taken

in the light most favorable to them, a jury could reasonably infer that Defendant should

have known of the hazard because the area with the debris was frequently trafficked and

large relative to the small size of the business.

We respectfully disagree. The record contains no evidence that the alleged

hazardous condition existed for such a length of time that Defendant, in the exercise of

reasonable care, should have become aware of it. Blair, 130 S.W.3d at 764 (“Constructive

notice can be established by proof that the dangerous or defective condition existed for

such a length of time that the defendant, in the exercise of reasonable care, should have

become aware of the condition”) (citation omitted). Nevertheless, where there is no proof

as to the length of time a defective condition existed, a plaintiff may prove constructive

notice by showing “a pattern of conduct, a recurring incident, or a general continuing

condition indicating the dangerous condition’s existence.” Id. at 765–66 (quoting Martin,

946 S.W.2d at 320). In Blair, the court explained that “allowing plaintiffs to prove

constructive notice in this manner relieves plaintiffs of the difficult burden of showing the

duration of a particular occurrence[.]” Id. at 766. Thus, “when a dangerous condition occurs

regularly, the premises owner is on constructive notice of the condition’s existence” and

the premises owner has a duty “to take reasonable steps to remedy this commonly occurring

dangerous condition.” Id.

However, the record before us contains no evidence that the dangerous condition

resulted from “a pattern of conduct, a recurring incident, or a general or continuing

condition.” See Id. at 765. It is undisputed that the contractor’s construction work

concluded in May 2018, and there is no evidence that Mr. Luc did any construction work

after Mrs. Beasley’s second visit to the nail salon. Thus, Plaintiffs cannot establish

constructive notice on this basis.

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Accordingly, we affirm the trial court’s decision to summarily dismiss Plaintiffs’

complaint.

IN CONCLUSION

The judgment of the trial court is affirmed in all respects and costs of appeal are

assessed against the appellants, Marquica L. Beasley and Trent Beasley.

________________________________

FRANK G. CLEMENT, JR., P.J., M.S.

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