                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                         June 26, 2012 Session

                  DAVID G. ROGERS, EX. REL. KAREN WRIGHT v.
                           AUTOZONE STORES, INC.

                   Appeal from the Circuit Court for Montgomery County
                    No. MCCCCVOD07976 Hon. Ross H. Hicks, Judge




                   No. M2011-02606-COA-R3-CV - Filed August 21, 2012




This is a premises liability case in which Karen Wright alleged that she slipped in a puddle
of water and fell on the floor while exiting an Autozone store. She filed suit against
Autozone Stores, Inc., claiming negligence. Autozone Stores, Inc. filed a motion for
summary judgment, asserting that Karen Wright could not prove that it caused the condition
which led to her fall or that it had actual or constructive notice of the condition prior to her
fall. Autozone Stores, Inc. also alleged that Karen Wright could not recover because she was
50 percent or more at fault for her injuries. Following a hearing, the trial court granted the
motion for summary judgment and dismissed the case. Karen Wright appeals. We affirm
the decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J, and D. M ICHAEL S WINEY, J., joined.

Aubrey T. Givens and John Jay Clark, Nashville, Tennessee, for the appellant, David G.
Rogers, ex. rel. Karen Wright.1

Stephen B. Morton and Joseph C. Johnsen, Nashville, Tennessee, for the appellee, Autozone
Stores, Inc.




1
 Karen Wright filed a petition for bankruptcy; therefore, the proper party of interest is the bankruptcy trustee,
David G. Rogers.
                                                 OPINION

                                           I. BACKGROUND

        It was raining on November 28, 2006, when Karen Wright entered Autozone Stores,
Inc. (“Autozone”) through the designated entrance, obtained the items she needed, borrowed
a funnel from the clerk, and left the store through the designated exit. After using the funnel,
she inserted a paper towel into the funnel to clear it of excess oil. She then walked from her
car to the store, entering the store through the designated exit.2 After returning the funnel to
the clerk, she turned around and proceeded to walk away from the counter to leave the store
through the designated exit. As she was walking, she slipped in a puddle of water and fell,
landing on her left knee.

       Thereafter, Ms. Wright filed a complaint against Autozone, alleging negligence.
Specifically, Ms. Wright claimed that Autozone was negligent by failing to maintain the
premises and by failing to warn customers of the dangerous condition caused by the wet floor
near the designated exit. Autozone denied liability, asserting that Ms. Wright was at least
50 percent at fault for the damages she sustained and that she could not prove that it breached
any duty to her or that the “alleged actions or omissions” of its employees caused her injuries.

        Autozone employees, Danny Austin and Claudette Rhoten, provided deposition
testimony in August 2010. Mr. Austin testified that he was the store manager of Autozone
when Ms. Wright visited the store in 2006. As store manager, he ensured that his store was
maintained in a safe manner. He stated that employees at the store were advised to clean up
any spills that they found and that while the floor was mopped whenever it needed to be
mopped, there was not a set time for the employees to inspect the floor. He could not recall
any other slip and fall incidents at his store prior to Ms. Wright’s fall. He stated that he
usually left warning signs near the front of the store because customers often approached the
counter with items like brake fluid. He opined that in this case, the water was located in front
of the counter on the white tile floor and that it was unlikely that the employee behind the
counter could see the area in which Ms. Wright fell because of the height of the counter. He
could not recall how many times that area had been checked for spills prior to the fall but
claimed that he had likely looked over the area a few times prior to the fall. He related that
he did not see Ms. Wright fall but that he approached her after she fell and talked with her
briefly while filling out an incident report.

       Ms. Rhoten testified that Autozone did not have a policy regarding the inspection of
the floor but that she cleaned up any spills that she found. She could not recall a single


2
    At this point, she had used the designated entrance one time and the designated exit two times.
                                                      -2-
incident prior to Ms. Wright’s fall. She stated that she was working at the register when Ms.
Wright approached the counter and fell onto the tile floor three or four feet from the counter.
She could not see Ms. Wright on the floor because of the height of the counter. After Ms.
Wright fell, she inspected the floor and found a spot of water that was “maybe the size of a
dime.” She stated that she had not seen the spot prior to the fall and that she had to get down
on her hands and knees to find the spot. She said that Ms. Wright also had to walk around
a warning sign to approach the area of the fall. She stated that the sign was placed in that
area because it had been raining outside.

        Ms. Wright also provided deposition testimony in which she discussed the accident
and her resulting injuries. She stated that she traveled to Autozone with her daughter,
Shannon Palmore. She recalled that it was “raining really hard” when she arrived and that
it was “raining steadily” when she got out of the car to go inside the store. She entered the
store twice, once using the designated entrance and the second time using the designated exit.
On her second trip into the store, she handed the funnel back to the clerk behind the counter
and turned around to leave. As she was leaving, she slipped in the puddle of water and fell
to the floor. She stated that the floor was made of concrete and that the floor did not have
any grooves or cracks. She opined that the puddle of water was about as “wide as a plant
pot” and stated that she believed that customers had likely tracked the water into the store.
She stated that her pants “were soaking wet” from the water on the floor.

       Ms. Wright recalled that as she was walking out of the store the second time, Ms.
Palmore was walking into the store to purchase a drink. Ms. Wright testified that she fell
approximately “two or three steps” away from the path that she used the first time to exit the
store. She insisted that she did not see the water on the floor before she fell. She admitted
that some warning signs were stacked in the corner of the store but insisted that the signs
were not in the area near where she fell.

        Several months later, Autozone filed a motion for summary judgment, contending that
Ms. Wright would be “unable to meet her burden of proving that [it] was negligent or that
said negligence caused [her] alleged injuries.” Autozone claimed that Ms. Wright had not
presented proof “as to how the floor became wet immediately prior to [her] fall or for what
length of time the floor was wet immediately prior to [her] fall.” Ms. Wright responded to
the motion for summary judgment by asserting that Autozone knew or should have known
of the dangerous condition when it had been steadily raining outside and a “nice size puddle”
had formed on the floor. She alleged that the employees had been working there for such a
length of time that they should have noticed the condition and cleaned it or warned patrons
of the water on the floor. Attached to the response was an affidavit in which she stated, in
pertinent part,



                                              -3-
       The area of the slippery substance was at least as wide as a flower pot.

       There is no reason why [Autozone] would not or should not have seen the
       slippery substance that caused me to fall and in a sufficient amount of time for
       it to have been cleaned up before my fall.

       The slippery substance could have been seen without lying on the ground.

       [] I was not in a hurry, I was not rushing for any reason, I was not distracted
       by anything.

       [] I was not wearing slick bottom shoes. I was wearing a pair of denim shoes
       that only had about a half-inch heel.

       [T]he floor in which I was traveling [] was in a dangerous condition.

       The slippery substance on the floor created a defective or inherently dangerous
       condition. I believe that the slippery substance that I had not seen caused me
       to slip and fall to the ground.

       I was in pain subsequently and my daughter [] took me to [the] hospital.

       The slippery substance on the floor could have been seen by the employees
       standing behind the counter or employees inspecting the floor.

       There were no wet floor signs in the immediate area where I fell.

Following oral arguments, the trial court denied the motion, finding that Ms. Wright’s
deadline to disclose witnesses who could testify regarding Autozone’s “requisite knowledge
of the allegedly dangerous condition” had not expired.

       Approximately three months later, Autozone filed a motion to renew its previously
filed motion for summary judgment, contending that Ms. Wright had not produced any
evidence of an issue of material fact regarding Autozone’s knowledge of the allegedly
dangerous condition. Ms. Wright opposed the motion and filed two affidavits in support of
her opposition. In the first affidavit, Ms. Palmore attested that she was with Ms. Wright on
the day of the fall. She stated, “During the time [Ms. Wright] was in the store, I saw a water
puddle near the front counter where [she] fell. I also saw other puddles on the floor.” She
alleged that the employee at the counter should have seen the puddle prior to the accident
because the puddle was in the direct line of sight of the counter at which the employee was

                                             -4-
standing. She asserted that the puddle “was there at last the length of time from when [Ms.
Wright] entered the store, went to the front counter and then proceeded out of the store.” In
the second affidavit, Ms. Wright attested, in part,

       I am aware that the puddle did not occur immediately before the accident and
       therefore, the employees could have and should have cleaned the area before
       the accident and should have tried to do so.

       The water puddle was in the direct line of sight of the employee behind the
       counter. The puddle was visible to the employee behind the counter and the
       other employees in the area.

       There was an employee behind the counter the entire time of when I entered
       the premises until the time I fell.

       The employee could have and should have witnessed the puddle as it was
       created in the direct line of sight of the employee.

       When the puddle was created, [Autozone’s] employees could have and should
       have cleared it immediately. The puddle was there at least the length of time
       from when I entered the store, went to the front counter and then proceeded
       out of the store, which is enough time for the employee [] to have cleaned the
       spot or warned me of its existence.

Ms. Wright filed a second affidavit in which Ms. Palmore stated, in pertinent part,

       I did not see the puddle prior to my mother falling, but only after.

       At first, my mother went into [] Autozone and bought transmission fluid. She
       checked out at the front counter. She came outside and put it in the car. She
       returned inside to give the funnel back to the employee. She returned the
       funnel to the employee and turned to walk out. As she went to go out, she fell
       in a puddle.

       I had a clear view of the front area of the store during our entire visit and was
       paying attention. I was outside the store to begin with and then came inside.
       From the first time my mother entered [] Autozone until she fell was about 15
       to 20 minutes. During that time period, no one else walked through the area
       where my mother fell. There was an employee of Autozone in the area of the
       front counter during this time period. My mother did not create the puddle that

                                              -5-
       caused her to fall. Therefore, by my calculation the puddle had to be there for
       at least 15 minutes.

       Neither wet floor cones nor signs were out in the area that my mother fell.

Ms. Wright also submitted the deposition testimony of seven employees for the court’s
consideration. Only one employee, Donna Bush, spoke with Ms. Wright on the day of the
accident. Ms. Bush testified that she approached Ms. Wright, who was sitting in a chair, and
asked if Ms. Wright was hurt. She recalled that it had rained that morning and that the
warning signs had been placed near the front of the store. She did not see any water in the
area that Ms. Wright fell, and she did not remember anyone telling her that there was water
in that area prior to the accident. She stated that the employees were responsible for cleaning
the floor as needed and that they also placed the warning signs in any areas that were wet.
Victor Gray, Gene Phillips, Paul Stittums, and Robert Toro all testified that they were told
to clean the floor and place the warning signs out as needed. Tom Ward testified that he
worked in a separate area of the store as the commercial manager. He related that he did not
hear about Ms. Wright’s accident or remember anything about the day that she fell.

        The court dismissed the case, finding that Ms. Wright had not filed any additional
evidence regarding Autozone’s actual or constructive notice of the dangerous condition. The
court stated that the subsequent affidavits were contradictory to Ms. Wright’s deposition
testimony and did not provide any “proof on how the floor became wet immediately prior to
[her] fall or for what length of time it had been wet.” The court found that Ms. Wright and
Ms. Palmore were the only customers in the area where the puddle was located within the 15
to 20 minutes prior to the fall, that if the Autozone employees should have seen the spot, then
she should have also seen the spot, and that “it was entirely possible, if not probable, that the
wet spot occurred because of [her] entries and exits onto the premises.” The court concluded
that there were no genuine issues of material fact regarding Autozone’s actual or constructive
notice of the dangerous condition. This timely appeal followed.

                                         II. ISSUES

       We consolidate and restate the issues raised on appeal as follows:

       A. Whether the trial court erred in granting the motion for summary judgment
       in favor of Autozone.

       B. Whether the trial court erred in granting Autozone’s motion for summary
       judgment when Autozone failed to respond to Ms. Wright’s statement of
       undisputed material facts.

                                               -6-
                              III. STANDARD OF REVIEW

        Summary judgment is appropriate where: (1) there is no genuine issue with regard to
the material facts relevant to the claim or defense contained in the motion and (2) the moving
party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P.
56.04. A properly supported motion for summary judgment “must either (1) affirmatively
negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving
party cannot prove an essential element of the claim at trial.” Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 9 (Tenn. 2008). When the moving party has made a properly supported
motion, the “burden of production then shifts to the nonmoving party to show that a genuine
issue of material fact exists.” Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.
1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may not
simply rest upon the pleadings but must offer proof by affidavits or other discovery materials
to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the nonmoving party
“does not so respond, summary judgment, if appropriate, shall be entered.” Tenn. R. Civ.
P. 56.06.

        On appeal, this court reviews a trial court’s grant of summary judgment de novo with
no presumption of correctness. See City of Tullahoma v. Bedford County, 938 S.W.2d 408,
412 (Tenn. 1997). In reviewing the trial court’s decision, we must view all of the evidence
in the light most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim
v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support
only one conclusion, then the court’s summary judgment will be upheld because the moving
party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,
529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

                                     IV. DISCUSSION

                                              A.

                                               1.

        Ms. Wright contends that the trial court erred in granting the motion for summary
judgment because issues of material fact remained, namely whether Autozone had
constructive notice of the dangerous condition on the floor. She notes that the floor was wet
for a period of 15 to 20 minutes, that the store was relatively small, and that an employee was
standing in the direct line of sight of the puddle. She asserts that the court improperly relied
on the employees’ testimony that there were warning signs by the puddle and the fact that she



                                              -7-
could not identify the source of the puddle. Autozone responds that the trial court did not err
in dismissing the case when no issues of material fact remained.

       In premises liability cases, liability is imposed upon property owners due to their
superior knowledge of the premises. McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn.
1980). The theory behind this tort is that “the premises owner has a duty to exercise
reasonable care under all circumstances to prevent injury to persons lawfully on the
premises.” Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App. 1999) (citing Eaton v.
McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994)). The key to premises liability is
foreseeability. Dobson, 23 S.W.3d at 331. For a plaintiff to prevail in a premises liability
case, he or she must prove that “the injury was a reasonably foreseeable probability and that
some action within the defendant’s power more probably than not would have prevented the
injury.” Id.

       A plaintiff seeking recovery under a premises liability theory must establish the
elements of negligence. It is well settled in Tennessee that the elements of a negligence
claim include:

       (1) a duty of care owed by the defendant to 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.

Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). In addition to the
elements of negligence, a plaintiff must also establish:

       (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 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).

       Ms. Wright’s claim was based upon the theory that the employees had constructive
notice of the dangerous condition. “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 cause upon him the duty of inquiring into it.” Hawks v. City of Westmoreland, 960 S.W.2d
10, 15 (Tenn. 1997); Kirby v. Macon Cnty., 892 S.W.2d 403, 409 (Tenn. 1994). A plaintiff
can establish constructive notice in one of three ways. First, the plaintiff may demonstrate

                                              -8-
that the owner or operator of the premises caused or created the condition. See Sanders v.
State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989). Second, if a third party caused or created
the dangerous condition, the plaintiff may prove constructive notice by evidence that the
condition “existed for a length of time” that the owner/occupier “in the exercise of reasonable
care, should have become aware of that condition.” Elkins v. Hawkins Cnty., No. E2004-
02184-COA-R3-CV, 2005 WL 1183150, at *4 (Tenn. Ct. App. May 19, 2005). Third, the
plaintiff may show constructive notice by proving that “a pattern of conduct, recurring
incident, or general continuing condition” caused the dangerous condition. Blair, 130
S.W.3d at 765-66. This is often called the “common occurrence” theory. All three methods
of proving constructive notice are related to the defendant’s superior knowledge of the
premises. McCormick, 594 S.W.2d at 387. By showing actual or constructive notice, a
plaintiff demonstrates that the owner had a duty to act reasonably under the circumstances
and remedy the condition that caused injury to the plaintiff. Blair, 130 S.W.3d at 766.

       Ms. Wright did not assert that the employees caused or created the condition or that
Autozone’s pattern of conduct caused the condition. Accordingly, her claim was based upon
the premise that the condition existed for such a long period of time that the employees
should have become aware of the condition. In its request for summary judgment, Autozone
asserted that Ms. Wright could not establish that Autozone had constructive notice of the
dangerous condition when there was no evidence concerning how the floor became wet or
for what length of time the floor was wet prior to the fall. Autozone noted that its employees
constantly monitored the area in which Ms. Wright fell and did not notice any water in that
area, that there were warning signs in the area that she fell, and that after she fell, the
employee who assisted her found a minuscule spot of water that could not have been seen
from behind the counter. We agree with the trial court that Autozone’s motion was properly
supported, thereby shifting the burden to Ms. Wright to show that a genuine issue of material
fact remained for trial. In response, Ms. Wright offered affidavits in which she and Ms.
Palmore attested that the puddle was large enough to be seen and that the employee behind
the counter could have seen the puddle. Ms. Wright attested that warning signs were not in
the area, while Ms. Palmore attested that the puddle remained on the floor for approximately
15 to 20 minutes prior to the fall, that Ms. Wright was the only person who walked near the
puddle during that time, and that Ms. Wright did not cause the puddle.

       “In cases such as this where liability is based upon constructive knowledge of the
dangerous or defective condition, there must be material evidence from which the trier of fact
could conclude the condition existed for sufficient time and under such circumstances that
one exercising reasonable care and diligence would have discovered the danger.” Paradiso
v. Kroger Co., 499 S.W.2d 78, 79 (Tenn. Ct. App. 1973). In addition to considering the
length of time that the condition existed, one must also consider “the nature of the business,



                                              -9-
its size, the number of patrons, the nature of the danger, [and] its location along with the
foreseeable consequences.” Id.

        In viewing this case in the light most favorable to Ms. Wright, we can find no proof
in the record that could potentially establish that Autozone had constructive knowledge of
the puddle that caused Ms. Wright to fall. Even taking into consideration the fact that the
puddle was the size of a plant pot and that the employee could have seen the puddle from the
counter, we do not believe that there is any evidence to infer that Autozone should have
discovered the puddle’s existence when Ms. Wright was the only person in the front of the
store during the 15 to 20 minutes prior to the fall. While the employees were not tasked with
patrolling the store for spills at set times, they had been instructed to clean any spills that they
encountered. We do not believe that a lapse of approximately 20 minutes between general
inspections was unreasonable when, according to Ms. Palmore, there was only one customer
in the front of the store during that time period. Additionally, we cannot say that an
employee would have discovered the puddle when Ms. Wright, who admitted that she was
only a few steps away from the puddle when she first left the store, did not even notice the
puddle in her successive trips in and out of the store. Without any additional evidence
regarding the source of the puddle or the actual length of time that the puddle was present,
we hold that there was not any material evidence from which the trier of fact could infer that
the dangerous condition existed for such a length of time that one exercising reasonable care
would have discovered it. Accordingly, we conclude that the trial court did not err in
granting the motion for summary judgment.

                                                 2.

        Autozone alternatively asserts that summary judgment was appropriate because Ms.
Wright was 50 percent or more at fault for her accident when she was the only person in the
area but still failed to see the dangerous condition. Ms. Wright responds that her comparative
fault is not a proper issue before this court because the trial court did not base its opinion on
her comparative fault. In the event of further appellate review, we acknowledge that the
court’s opinion was not based upon Ms. Wright’s alleged comparative fault and hold that this
is not a proper issue for our review. Specifically, the court’s statement that it was “entirely
possible, if not probable that the wet spots occurred because of Ms. Wright’s entries and exits
onto the premises” was insufficient to support a finding that Ms. Wright was at fault for her
injuries. This statement was superfluous and should be discarded when the court was tasked
with considering the evidence in the light most favorable to Ms. Wright, who, according to
Ms. Palmore, did not cause the puddle. The remaining trial court findings support the court’s
ultimate conclusion that Ms. Wright failed to submit any material evidence that Autozone
had constructive notice of the dangerous condition that caused her to fall.



                                               -10-
                                               B.

       Ms. Wright contends that her statement of undisputed material facts should be deemed
admitted because Autozone failed to respond to the statement. She asserts that Autozone
should have responded to her statement even though Autozone “was not technically required”
to respond. The rule at issue provides,

       In order to assist the Court in ascertaining whether there are any material facts
       in dispute, any motion for summary judgment made pursuant to Rule 56 of the
       Tennessee Rules of Civil Procedure shall be accompanied by a separate
       concise statement of the material facts as to which the moving party contends
       there is no genuine issue for trial. Each fact shall be set forth in a separate,
       numbered paragraph. Each fact shall be supported by a specific citation to the
       record.

       Any party opposing the motion for summary judgment must, not later than five
       days before the hearing, serve and file a response to each fact set forth by the
       movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact
       is undispusted for purposes of ruling on the motion for summary judgment
       only, or (iii) demonstrating that the fact is disputed. Each disputed fact must
       be supported by specific citation to the record. Such response shall be filed
       with the papers in opposition to the motion for summary judgment.

       In addition, the non-movant’s response may contain a concise statement of any
       additional facts that the non-movant contends are material and as to which the
       non-movant contends there exists a genuine issue to be tried. Each such
       disputed fact shall be set forth in a separate, numbered paragraph with specific
       citations to the record supporting the contention that such fact is in dispute.

       If the non-moving party has asserted additional facts, the moving party shall
       be allowed to respond to these additional facts by filing a reply statement in the
       same manner and form as specified above.

Tenn. R. Civ. P. 56 (emphasis added). As can be discerned from the plain text of the rule,
the moving party is allowed to respond to the non-moving party’s statement of additional
facts but is not required to issue a response. We decline to hold that a moving party’s failure
to issue a response deems the non-moving party’s statement of facts admitted when the
moving party is not required to issue a response. Moreover, the record does not reflect that
this issue was raised in the trial court. A party may not offer a new issue for the first time
on appeal. See Lane v. Becker, 334 S.W.3d 756, 764 (Tenn. Ct. App. 2010) (citing Campbell

                                              -11-
Cnty. Bd. of Educ. v. Brownlee-Kesterson, Inc., 677 S.W.2d 457, 466-67 (Tenn. Ct. App.
1984)). Accordingly, this issue is without merit.

                                   V. CONCLUSION

      The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, David G.
Rogers, ex. rel. Karen Wright.


                                          ______________________________________
                                          JOHN W. McCLARTY, JUDGE




                                            -12-
