                        IN THE COURT OF APPEALS

                             AT NASHVILLE




WAVELYN E. NORRIS,            )    C/A NO. 01A01-9709-CV-00506
                              )
          Plaintiff-Appellant,)
                              )
                              )
                              )
                              )    APPEAL AS OF RIGHT FROM THE
v.                            )    MONTGOMERY COUNTY CIRCUIT COURT
                              )
                              )
                              )

DORA PRUITTE,
                              )
                              )
                              )
                                                       FILED
                                   HONORABLE JAMES E. WALTON,
          Defendant-Appellee. )    JUDGE
                                                      August 24, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
For Appellant                          For Appellee

HERBERT E. PATRICK                     DAN L. NOLAN
Clarksville, Tennessee                 DAVID J. SILVUS
                                       Batson, Nolan, Brice,
GREGORY D. SMITH                         Harvey & Williamson, PLLC
Clarksville, Tennessee                 Clarksville, Tennessee

HAROLD M. JOHNS
Elkton, Kentucky




                            O P I N IO N




AFFIRMED AND REMANDED                                        Susano, J.

                                   1
            The plaintiff, Wavelyn E. Norris, sued her employer,

Dora Pruitte, seeking damages for personal injuries sustained

during the course of her employment.         The plaintiff brought suit

on a theory of common law negligence since her employment is not

covered by the Workers’ Compensation Law.1          The trial court

granted Ms. Pruitte’s motion for summary judgment, and the

plaintiff appealed.      She argues that genuine issues of material

fact exist that make summary judgment inappropriate.



            The plaintiff was hired in July, 1994, as a care-giver

for Ms. Pruitte, who had undergone surgery for a brain aneurism

the previous July.      The plaintiff stayed with, and attended to

the needs of, Ms. Pruitte from 4 p.m. Sunday to 4 p.m. Friday.

Another person was employed to care for her needs on the

weekends.



            On March 7, 1995, Ms. Pruitte directed the plaintiff to

go outside to get her mail.        It was raining at the time.         After

the plaintiff retrieved the mail from the mailbox, she was

returning to the house when she was caught by a gust of wind that

caused her umbrella to collapse around her head, forcing her to

lose her balance and fall to the concrete.           As a result of the

fall, the plaintiff suffered serious injuries.



            Ms. Pruitte’s motion is supported by the deposition of

the plaintiff, as well as those of Ms. Pruitte’s children, R.H.

Pruitte, Jr., age 58, and Linda Suchman.          Apparently, Ms. Pruitte



      1
       See T.C.A. §§ 50-6-102(a)(3)(A) and 50-6-102(a)(4).   See also Garner v.
Reed, 856 S.W.2d 698, 699 (Tenn. 1993).

                                      2
was not deposed; in any event, her testimony was not presented to

the trial court.    The testimony of the plaintiff is the only

proof in the record regarding the events of March 7, 1995.



          We begin our analysis by referring to Rule 56.04,

Tenn.R.Civ.P., the procedural rule that sets forth the general

standard by which a motion for summary judgment is to be

evaluated.    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.” Id.    A court faced

with a motion for summary judgment is required to consider the

motion in the same light as a motion for directed verdict made at

the close of the plaintiff’s proof, i.e., “the trial court must

take the strongest legitimate view of the evidence in favor of

the nonmoving party, allow all reasonable inferences in favor of

that party, and discard all countervailing evidence.”     Byrd v.

Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).    Since our review

involves only a question of law, no presumption of correctness

attaches to the trial court’s judgment.     Gonzales v. Alman

Constr. Co., 857 S.W.2d 42, 44 (Tenn.App. 1993).



             At the outset, we acknowledge that there is arguably a

dispute in the record regarding Ms. Pruitte’s mental competence

on March 7, 1995, and the extent of her authority to direct the

actions of the plaintiff; however, these disputes do not preclude

a summary disposition in favor of Ms. Pruitte if the material

facts most favorable to the nonmovant -- the plaintiff --


                                   3
conclusively show that Ms. Pruitte is “entitled to a judgment as

a matter of law.”   See Rule 56.04, Tenn.R.Civ.P.     For the purpose

of our review, we accredit the testimony of the plaintiff.

Hence, we find that Ms. Pruitte was the plaintiff’s employer;

that she had the unbridled authority to direct the plaintiff’s

activities while the latter was on the job; and that she was in

control of her mental faculties.       Construing the evidence as

strongly as possible in favor of the plaintiff, and giving her

the benefit of all reasonable inferences, these three stated

facts are accepted by us as true.       We have “discard[ed] all

countervailing evidence.”   Byrd at 210-11.      Against this

backdrop, we now examine the operative facts pertaining to the

plaintiff’s fall on March 7, 1995.



           Apparently, the plaintiff would usually retrieve the

mail for Ms. Pruitte.   On the day in question, it was raining.

It was also windy, “but not that hard” according to the

plaintiff.   When Ms. Pruitte first asked the plaintiff to go to

the mailbox, the mail had not yet been delivered.       Ms. Pruitte

asked her a second time when she saw the mailman at or near her

mailbox.   The plaintiff suggested to Ms. Pruitte that she wait

until it stopped raining.   Ms. Pruitte persisted a third time,

pointing out to the plaintiff that “that’s what you’re getting

paid for, to wait on me.”   The plaintiff testified that she

thought Ms. Pruitte’s request was an unreasonable one, but that

she went outside because she did not want to upset her.



           After the plaintiff picked up the mail, a gust of wind

came up unexpectedly, causing her to fall.       The following


                                   4
testimony of the plaintiff is particularly relevant to the events

of March 7, 1995:



          Q.   Now, what was the weather like when you -
          -

          A.   At that time?

          Q.   Yes, ma’am.

          A. It was raining. That’s why I got my
          raincoat and my umbrella.

          Q. So it was raining while you were in the
          house.

          A. Yeah. But the wind came in after I got
          out to the box and started back, just a gush
          of wind.

          Q. So are you saying that the weather got
          worse after you got outside?

          A.   Right.

          Q. And it got worse because the wind came
          up?

          A.   Yes.

          Q.   And began to gust?

          A.   Uh-huh (indicating yes).

                               *    *      *

          Q. So when you were in the house and when
          you got your raincoat, it was just raining.

          A.   Yeah, just a drizzle rain....

                               *    *      *

          Q. But when you left the door to go outside,
          you didn’t know it was dangerous, did you?

          A. Not at that time.          The wind was coming in
          but not that hard.

          Q. You didn’t in your mind say, if I go out
          this door, I might get hurt.

          A.   No, I didn’t say that.

                               *    *       *

                                    5
Q. That’s my point. You had looked outside
and you knew it was raining, hadn’t you?

A.   Yes.

Q. And you could see the weather outside,
couldn’t you?

A.   Yeah.

Q. Is there anything wrong with your mental
faculties?

A.   No.

Q.   You think fine?

A. I’d been out in storms before. And I
thought I could put my coat on and rain -- my
umbrella and go on like I had before.
Because I’d been working with home health
before.

Q. So you felt it was safe for you to go out
and get the mail.

A.   Yeah.

                  *    *   *

Q.   So you fell because of the gust of wind -
-

A. It took the umbrella over my face and
blindfolded me.

Q.   And then what happened then?

A.   I was laying on the concrete.

Q. What about the umbrella being over your
face caused you to fall?

A. It come down like that (indicating) over
me when I went down. If you was walking
along with an umbrella, and the wind --
(indicating) down over your face.

                  *    *    *

Q. If that gust of wind hadn’t come up,
would you have fallen down?

A. I don’t think so, because the umbrella
wouldn’t have come over my face.

Q. Is that what caused you to fall, the
umbrella coming over your face?

                       6
         A. (Nods head affirmatively).      I couldn’t
         see where I was going.

         Q.   And then you fell.

         A.   Right.

         Q. Did you know that gust of wind was going
         to come up?

         A. Not really. I was trying to make it back
         to the house on account of that storm.

                           *       *   *

         Q. Did she ever do anything to you that
         would indicate her judgment might not be
         good?

         A. No, not till she told me to go get the
         mail. I didn’t -- I knew I shouldn’t go out,
         but I still wanted to try to be nice to her.

         Q. Why didn’t you wait until the rain was
         over?

         A. Well, she said, that’s what you’re
         getting paid for, and I thought I had to go.

         Q. Well, had you ever on other occasions not
         done what she told you to do?

         A. Yeah, a few of them. When she wouldn’t
         put the seat belt on, I’d stop till she put
         it on. She didn’t like to wear her seat
         belt.

         Q. Why didn’t you just wait and go after the
         rain was over?

         A. I don’t know.       It just hit me one of
         those times.

                            *      *    *



          The plaintiff contends that the evidence can be

construed as indicating that the defendant breached her duty to

provide the plaintiff a safe place to work.     See Suddath v.

Parks, 914 S.W.2d 910, 913 (Tenn.App. 1995).     She finds this

breach in the fact that the defendant directed her to go out in

the rain to get the mail under an implied threat of loss of her

                                   7
job.   According to the plaintiff’s brief, the defendant

“demand[ed] that [the plaintiff] undertake unsafe work

conditions.”



           Taking the plaintiff’s testimony at face value, we do

not find a breach of Ms. Pruitte’s duty to provide the plaintiff

with a “safe working environment.”   Id.   The plaintiff’s

testimony belies her theory that it was “dangerous” to go outside

to get the mail.   She herself testified that she did not consider

it dangerous to undertake such a chore.    The facts before us

reflect, without dispute, that Ms. Pruitte did not direct her

employee to undertake a known dangerous task.    Hence, the facts

fail to show a breach by Ms. Pruitte of her duty to provide the

plaintiff a reasonably safe place to work.    The facts clearly

negate a breach of duty, an essential element of this negligence

action.   See Haynes v. Hamilton County, 883 S.W.2d 606, 611

(Tenn. 1994).   See also Byrd, 847 S.W.2d at 215, n.5.



           Even if we could construe Ms. Pruitte’s demand to be

one involving the undertaking of a dangerous employment task --

which we cannot -- we believe that the plaintiff’s testimony

clearly shows that she understood as much about the hazard of

going out during the rain as did Ms. Pruitte.    In our judgment,

reasonable minds could only conclude, based entirely on the

plaintiff’s testimony, that she was at least 50% at fault in

proceeding to the mailbox in the rain to pick up the mail.       While

comparative fault is typically a question for the trier of fact,

summary judgment is appropriate in those situations where

reasonable minds could only conclude that the plaintiff was at


                                 8
fault, and that the plaintiff’s fault was equal to or greater

than the fault of the defendant.             See   JOHN A. DAY & DONALD

CAPPARELLA, TENNESSEE LAW   OF   COMPARATIVE FAULT , p. 12-18 (1997).



           In the final analysis, there is nothing for a jury to

decide in this case.        The facts of the incident -- as taken

entirely from the plaintiff’s testimony -- are not in dispute.

Those facts support Ms. Pruitte’s motion.             They simply do not

substantiate the plaintiff’s claim that she is entitled to

compensatory damages in this case.



           The trial court’s judgment is affirmed.             Costs on

appeal are taxed to the appellant.            This case is remanded to the

trial court for collection of costs assessed there, pursuant to

applicable law.



                                             __________________________
                                             Charles D. Susano, Jr., J.


CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
Don T. McMurray, J.




                                         9
