Opposition Brief — Brient v. Petro PSC, LP

Suprems Court, U.S.

FITTED

JUN 25 1998

No. 97-1934

In The

Supreme Court of the United States

October Term, 1997

ROBERT H. BRIENT, JR.,

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Petitioner,

PETRO PSC, LP. a Delaware Limited Partnership,

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Respondent.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

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RONALD T. Hitt

Counsel of Record for Respondent

Spicer, FLYNN & Rupstrom, PLLC

800 S. Gay Street, Suite 1209

Knoxville, Tennessee 37929

23-673-8516

QUESTION PRESENTED

Whether the decision of the Court of Appeals is

consistent with Tennessee law on the issue of duty being

a required element in a premises liability action?

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT............. 2

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TABLE OF AUTHORITIES

Page

CASES

Coln v. City of Savannah, Tn. Sup. Ct., March 30,

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Eaton v. McClain, 891 S.W.2d 587 (Tenn. 1994)......’ 3, 4

STATEMENT OF THE CASE

Petitioner’s statement of the case sets out an incom-

plete and out-of-context view of the facts relied upon by

the Court of Appeals in deciding this case. As noted

several times in the opinion of the Court of Appeals, the

court was particularly persuaded by the undisputed fact

that Mr. Brient had full knowledge and awareness of the

condition at issue in this case. The condition at issue was

a two level parking lot separated by a retaining wall. It

was undisputed that the area was well lighted. It was also

undisputed that Mr. Brient was aware of the two levels of

the parking lot as well as the retaining wall.

Furthermore, the petition states at page four that the

jury verdict was “lower than the stipulated medical dam-

7

ages alone.” To the contrary, there was a very sharp

dispute about damages allegedly sustained by Mr. Brient.

One of the petitioner’s doctors testified that Mr. Brient

did not need certain therapy requested by Mr. Brient

himself. Also, contrary to Mr. Brient’s testimony that he

was so disabled he could not even tie his own shoes,

opposing testimony by a private investigator apparently

convinced the jury that Mr. Brient’s damages were much

less than he claimed.

At page four of the petition Mr. Brient states that the

Court of Appeals held that “Mr. Brient was not entitled to

a jury trial.” Obviously, Mr. Brient received a jury trial.

The Court of Appeals held that Petro was entitled to

judgment as a matter of law because Mr. Brient did not

establish the duty element of negligence.

At page five of the petition Mr. Brient notes that he

filed a second motion to reconsider the decision of the

Court of Appeals after the Coln v. City of Savannah case

was decided by the Tennessee Supreme Court. (The Coln

decision contained as Appendix B in the petition is the

sole authority relied upon by Mr. Brient in his petition.)

At the time Mr. Brient’s petition was submitted to this

Court such second motion to reconsider was still pending

before the Court of Appeals. On June 1, 1998, the Court of

Appeals denied Mr. Brient’s second motion to reconsider

based upon the Coln case. Such order is included as

Appendix A with this brief of Petro in opposition.

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REASONS FOR DENYING THE WRIT

There are no compelling reasons for a grant of a writ

of certiorari in this case. None of the reasons cited in

Supreme Court Rule 10, indicating the character of the

reasons the Court considers, is present in this case. The

petitioner contends that the Court of Appeals has decided

this case in conflict with a decision of the Tennessee

Supreme Court. That is not even one of the reasons cited

in Supreme Court Rule 10 since this matter does not

involve a federal question. Even more importantly, the

decision of the Court of Appeals is not in conflict with a

decision of the Tennessee Supreme Court as contended by

petitioner.

Mr. Brient’s petition revolves simply around his con-

tention that the decision of the Court of Appeals is in

conflict with the decision of the Tennessee Supreme Court

in the case of Coln v. City of Savannah. (Copy of Coln

opinion included in Appendix to Mr. Brient’s petition.)

However, analysis of the opinion in Brient and the opin-

ion in Coln shows that the two cases are not in conflict.

In Brient the Court of Appeals held that Mr. Brient

could not establish the duty element of negligence. (See

opinion of Court of Appeals in Brient, reprinted at page

A-10 of the Appendix to petition.) The Tennessee

Supreme Court in Coln emphasizes that duty is still an

essential element which must be established by a plaintiff

in a premises liability action.

Perhaps the clearest way to see that the Brient opin-

ion does not conflict with the Coln opinion is to look at an

earlier Tennessee Supreme Court case which was heavily

relied upon in the Brient opinion and cited with approval

in the Coln opinion. That case is Eaton v. McClain, 891

S.W.2d 587 (Tenn. 1994). In Eaton the Tennessee Supreme

Court held that the plaintiff failed to establish the

required duty element of a negligence case. Therefore, the

Tennessee Supreme Court held that the defendant was

entitled to a directed verdict in Eaton. In Coln the Tennes-

see Supreme Court specifically stated that its analysis in

that case was consistent with Eaton. (See Coln, reprinted

beginning at B-1 in Appendix to petition, at B-24.)

Another way to demonstrate that the Brient opinion

is not in conflict with the Colm opinion is in the recogni-

tion that the Court of Appeals in no way relied upon the

opinion of the Tennessee Court of Appeals in the Coln

case. Had the Court of Appeals relied upon the erroneous

ruling of the lower court in Coln, only then might it be

said that the Brient opinion would be in conflict with the

Tennessee Supreme Court opinion in Coln. To the con-

trary, the ultimate judgment in the Brient case is wholly

consistent with the Tennessee Supreme Court cases of

Coln v. City of Savannah and Eaton v. McClain.

As pointed out at page five of Mr. Brient’s petition,

Mr. Brient filed a second motion to reconsider this case in

light of the Coln opinion. The Court of Appeals presuma-

bly agrees that its judgment in Brient is correct and is

consistent with Coln since the court denied Mr. Brient’s

second motion.

CONCLUSION

For the reasons set forth above, the writ should be

denied. Furthermore, the alternative relief sought by peti-

tioner, that the case be remanded to the Court of Appeals,

should be denied.

Respectfully submitted,

RONALD T. Hitt

Counsel of Record for Respondent

Spicer, FLYNN & Rupstrom, PLLC

800 South Gay Street, Suite 1209

Knoxville, Tennessee 37929

423-673-8516

App. 1

APPENDIX

Case No: 96-6405: 96-6494

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

(Filed Jun. 1, 1998)

ROBERT H. BRIENT, JR.

Plaintiff-Appellant Cross-Appellee

V.

PETRO PSC, LP, a Delaware Limited Partnership

Defendant-Appellee Cross-Appellant

BEFORE: BOGGS, MOORE, AND FARRIS,* Circuit

Judges.

Upon consideration of the appellant cross-appellee’s

motion to suspend rules and allow petition for rehearing,

and for en banc consideration under extraordinary cir-

cumstances,

And further considering the appellee cross-appel-

lant’s response in opposition,

It is ORDERED that the motion be and it hereby is

DENIED.

ENTERED BY ORDER OF THE

COURT

/s/ Leonard Green

Leonard Green, Clerk