                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                             October 12, 2000 Session

  CYNTHIA JUNE BURGESS, et vir., RICKY ALBERT BURGESS, v. TIE
                         CO. 1, LLC.

                    Direct Appeal from the Circuit Court for Coffee County
                      No. 28,893    Hon. L. Craig Johnson, Circuit Judge



                   No. M1999-02232-COA-R3-CV - Filed November 15, 2000



In this slip and fall action the Trial Court granted defendant summary judgment. We vacate and
remand.


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

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR..J., and D. MICHAEL SWINEY, J., joined.

Mark A. Williams, Manchester, Tennessee, for Plaintiffs-Appellants, Cynthia June Burgess and
Ricky Albert Burgess.

Gerald L. Ewell, Tullahoma, Tennessee, for Defendant-Appellee, Tie Co. 1, LLC.



                                              OPINION


               This action resulted from a slip and fall on ice at a car wash owned by defendant. The
Trial Judge granted defendant summary judgment, and plaintiffs have appealed.

                The record establishes that on January 29, 1997, at approximately 10:30 a.m., plaintiff
slipped and fell on ice on defendant’s premises while utilizing the service of its self-service car wash.
One of the plaintiffs testified it was pretty warm that morning, and the other testified she didn’t
“think it was freezing that morning”. Defendant’s affidavits established they had no actual
knowledge of any icy condition, and that they inspected the premises every day, seven days a week.
An employee of the defendant testified that he inspected the premises at 5:00 p.m. on January 28,
and again at 5:00 p.m. on January 29, and observed no icy conditions, nor had anyone complained
about an icy condition.

                A party seeking summary judgment must establish there is no genuine issue of
material fact, and that it is entitled to a judgment as a matter of law. Byrd v. Hall, 847 S.W.2d 208
(Tenn. 1993). No presumption of correctness attaches to decisions granting summary judgments,
because they involve questions of law. Hembree v. State, 925 S.W.2d 513 (Tenn. 1996).

               As a general rule, negligence cases are not amenable to disposition on summary
judgment unless from all the facts taken together and with all the inferences to be drawn and facts
and inferences are so certain and uncontraverted that reasonable minds would agree. See Keene v.
Cracker Barrel Old Country Store, 835 S.W.2d 501 (Tenn. Ct. App. 1992).

               In deciding a motion for summary judgment, the court must view the pleadings and
evidence before it in the light most favorable to the opponent of the motion on an issue-by-issue
basis. Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276 (Tenn. Ct. App. 1977).

               We said in Martin v. Washmaster Auto Center, U.S.A., 946 S.W.2d 314 (Tenn. Ct.
App. 1996):

               In order for an owner or operator of premises to be held liable for negligence in
               allowing a dangerous or defective condition to exist on its premises, it must be shown
               that the condition (1) 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, there must be actual or constructive notice on the part of the owner or operator
               that the condition existed prior to the accident. . . . Constructive knowledge can be
               shown by proving 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 such condition. . . .

P. 318 (internal citations omitted).

               Considering the evidence in the light of the above standard, a trier of fact could
reasonably infer that the icy conditions were created during the night of January 28, 1997, or earlier.
The trier of fact could further reasonably infer that the icy conditions were not created on the
morning of the accident, because taking the strongest legitimate view of plaintiff’s testimony, it was
not freezing weather that morning.

               The evidence established that the defendant only inspected the premises at 5:00 p.m.
each day. The issue thus becomes whether in mid-winter defendant had a duty to inspect the
premises early in the morning for icy conditions, as it had a duty to maintain its premises in a
reasonably safe condition for its invitees.



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               Whether an owner has exercised the required degree of care to its invitees is a
question of fact for the jury. Kendall Oil Co. v. Payne, 293 S.W.2d 40 (Tenn. Ct. App. 1955).
Taking the strongest legitimate view of the evidence in favor of the plaintiffs, and according all
reasonable inferences in their favor, we conclude that summary judgment was inappropriate in this
case, and we vacate the Trial Court’s judgment and remand for further proceedings consistent with
this Opinion. The cost of the appeal is taxed to Tie Co. 1, LLC.




                                                     _________________________
                                                     HERSCHEL PICKENS FRANKS , J.




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