                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE


AMY TYLER,

            Plaintiff/Appellant,
                                  )
                                  )                      FILED
                                  ) Williamson Circuit No. 96361
                                  )                     November 24, 1998
VS.                               ) Appeal No. 01A01-9711-CV-00661
                                  )                      Cecil W. Crowson
LARRY MORGAN, d/b/a LARRY         )                    Appellate Court Clerk
MORGAN CONST. COMPANY,            )
UNITED CITIES GAS CO., ROGER P. )
DYE, d/b/a ROGER DYE CONST.       )
CO., MURRAY TATUM, QUAD           )
STATES, INC.,                     )
                                  )
            Defendants/Appellees. )


         APPEAL FROM THE CIRCUIT COURT OF WILLIAMSON COUNTY
                       AT FRANKLIN, TENNESSEE
               THE HONORABLE CORNELIA A. CLARK, JUDGE

WILLIAM B. BRADLEY
BARRY GARDNER
Brentwood, Tennessee
Attorneys for Appellant

DOUGLAS FISHER
HOWELL & FISHER, PLLC
Nashville, Tennessee
Attorney for Appellees Larry Morgan
d/b/a Larry Morgan Const. Co. And
United Cities Gas Co.

JAMES D. KAY, JR.
BRIDGETT A. WOHLPART
Nashville, Tennessee
Attorneys for Appellee Roger P. Dye
d/b/a Roger P. Dye Const. Co.

KENT E. KRAUSE
SHARON E. ENGLAND
BREWER, KRAUSE & BROOKS
Nashville, Tennessee
Attorneys for Appellees Murray Tatum
and Quad States, Inc.

AFFIRMED

                                                     ALAN E. HIGHERS, J.


W. FRANK CRAWFORD, P.J., W.S. - DISSENTS

DAVID R. FARMER, J. - CONCURS
       In this personal injury action, Plaintiff Amy Tyler appeals the trial court’s final order

entering summary judgment in favor of the Defendants/Appellees and dismissing Tyler’s

complaint. For the reasons hereinafter stated, we affirm the trial court’s judgment.



       At about 9:00 on the evening of May 27, 1995, Tyler was walking down a sidewalk

at the Southwind Apartments in Franklin when she tripped and fell, breaking both of her

arms. After her fall, Tyler discovered that she had tripped over a string which had been

stretched across the sidewalk. Earlier that day, Defendants Murray Tatum and Quad

States, Inc., had poured a new sidewalk on the portion of the sidewalk where Tyler fell.

Although the newly-poured concrete was dry, the wooden forms that Tatum and his

workers used to pour the concrete were still in place. The string was attached to two

wooden stakes which made up part of the forms.



       As a result of her injuries, Tyler filed this lawsuit against the following parties:

(1) United Cities Gas Company, which had contracted to have a natural gas line installed

under the sidewalk; (2) Larry Morgan, the contractor responsible for installation of the gas

line; (3) Roger P. Dye, Morgan’s subcontractor who actually performed the installation of

the gas line; (4) Murray Tatum, Dye’s subcontractor who poured the new sidewalk after the

gas line was installed; and (5) Quad States, Inc., Tatum’s employer. Tyler also sued

Southwind Limited Partnership, the owner of the apartment complex; however, she later

agreed to dismiss Southwind from this lawsuit. The remaining Defendants moved for

summary judgment, and the trial court granted their motions. This appeal followed.



       We begin our analysis with the well-established rule that “the party seeking

summary judgment has the burden of demonstrating to the court that there are no

disputed, material facts creating a genuine issue for trial.” Byrd v. Hall, 847 S.W.2d 208,

215 (Tenn. 1993). Once the party seeking summary judgment makes a properly supported

motion, the burden shifts to the nonmoving party to present evidence or to point to specific

evidence in the record demonstrating the existence of a disputed material fact which needs

to be resolved by the trier of fact. Id. In evaluating a motion for summary judgment, the



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court is required to view the evidence in the light most favorable to the nonmoving party

and to draw all reasonable inferences from the evidence in the nonmoving party’s favor.

Id.



       A disputed fact is material if proof thereof would negate or establish an essential

element of the plaintiff’s claim. McCarley v. W est Quality Food Serv., 960 S.W.2d 585,

588 (Tenn. 1998). In the present case, in order to recover from the Defendants for injuries

caused by the alleged dangerous or defective condition, Tyler was required to establish

either (1) that the Defendants created the condition or (2) that the Defendants had actual

or constructive notice of the condition prior to Tyler’s injury.      Hardesty v. Service

Merchandise Co., 953 S.W.2d 678, 682 (Tenn. App. 1997). Accordingly, in the summary

judgment proceedings below, the parties focused on evidence that tended to support or

negate Tyler’s claim that the Defendants were responsible for placing the string across the

sidewalk.



       In moving for summary judgment, the Defendants relied on the following evidence.

Murray Tatum, the vice president of Quad States, testified in his deposition that he and

Roger Dye entered into a verbal contract for Tatum and other Quad States employees to

pour the sidewalk. The employees poured the concrete for the sidewalk between 12:00

noon and 1:00 p.m. on Friday, May 27, 1995. By 2:30 or 3:00 p.m., when Tatum left the

job site for the weekend, the employees had finished pouring and “brooming” the concrete.

Tatum testified that, by 3:30 or 4:30 p.m., the concrete would have been dry enough to

walk on.



       Tatum further testified that, when he left the job site, no one had placed a string

across the sidewalk. Tatum had been in the concrete business for over forty years, but he

never had placed a string across the sidewalk in the manner alleged by Tyler, he never had

instructed any of his workers to place a string across the sidewalk, and he never had

observed any of his workers doing so. Tatum testified that, in any event, the string depicted

in the photographs presented by Tyler was not the type of string Tatum used in his work.



                                             3
The string in the photographs appeared to be brown twine, but Tatum used only white or

fluorescent nylon string.



       Willie Whitsett, Quad States’ foreman, corroborated Tatum’s testimony. In an

affidavit, Whitsett stated that he and four to six workers formed, poured, and finished the

section of the sidewalk on a Friday in May 1995. Whitsett and his workers poured the

concrete between 12:00 noon and 1:00 p.m., and they then “broomed” the concrete.

Neither Whitsett nor anyone in his crew placed a string across the sidewalk. When

Whitsett and his workers left the job site later that afternoon, the concrete was dry enough

to walk on and there was no string on either end of the newly-poured sidewalk.



       In opposing the Defendants’ motions for summary judgment, Tyler relied on the

deposition of her uncle, Kenneth Bruce Bearden, and the affidavit of a neighbor, Frank

Schmell. Frank Schmell noticed the string stretched across the sidewalk on Friday,

May 27, 1995. As for the time frame in which Schmell observed the string, Schmell stated

only that he noticed the string “after the concrete was poured” and “during the daytime

hours.” Schmell’s affidavit did not state whether any workers were present when he

observed the string, nor did the affidavit mention even observing any workers present on

the day in question.



       Kenneth Bruce Bearden did not observe the string stretched across the sidewalk

until after Tyler fell. Bearden, who also had worked in the concrete business for a number

of years, testified that the string appeared to have dried concrete on it as if it was the same

string used by the workers to set the wooden forms for the sidewalk in place. Earlier that

day, Bearden had a conversation with the workers right after they finished pouring the

sidewalk. Bearden estimated that the conversation took place at about 5:00 or 5:30 p.m.

During their conversation, Bearden warned the workers that they had “better barricade this

up good because, . . . people travel this walk.” According to Bearden, the workers assured

him that they would put up a barricade.




                                              4
       In light of this conversation, Bearden assumed that the workers were responsible

for placing the string across the sidewalk. Bearden, however, had no personal knowledge

as to who placed the string across the sidewalk. Bearden did not witness any of the

workers place the string across the sidewalk, nor did he observe any string stretched

across the sidewalk while he was conversing with the workers. When Bearden left the

workers, the stakes were in place but there was no string across the sidewalk.



       After carefully reviewing the foregoing evidence, we affirm the trial court’s orders of

summary judgment entered in favor of the Defendants. The Defendants filed properly

supported motions for summary judgment in which they affirmatively negated an essential

element of Tyler’s claim. Both Murray Tatum and Willie Whitsett stated under oath that

neither they nor any other Quad States employee placed the string across the section of

the sidewalk where Tyler fell. In order for her claim to survive the Defendants’ motions for

summary judgment, therefore, Tyler was required to present or point to evidence which,

if proven, would establish that one of the Defendants was responsible for creating the

dangerous condition which caused her injury.



       We conclude that Tyler’s proof fails on this issue. Based on his conversation with

the Quad States workers, Kenneth Bruce Bearden assumed that the workers were

responsible for placing the string across the sidewalk. Neither Bearden nor Frank Schmell,

however, attested to any personal knowledge that would implicate any of the Defendants

in placing the string across the sidewalk. Bearden did not see any of the workers place the

string across the sidewalk, and when he left the workers that day, there was no string

across the sidewalk. Although Frank Schmell observed the string across the sidewalk

sometime “during the daytime hours,” he likewise did not see any of the workers place the

string across the sidewalk, nor did he observe the string in place while any of the workers

were still present.



       We recognize that a defendant’s creation or knowledge of a dangerous condition

may be proven by either direct or circumstantial evidence. Martin v. Washmaster Auto Ctr. ,



                                              5
946 S.W.2d 314, 317 (Tenn. App. 1996); Keene v. Cracker Barrel Old Country Store, Inc.,

853 S.W.2d 501, 504 (Tenn. App. 1992); Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560,

563 (Tenn. App. 1985). In the absence of proof as to when and how a dangerous

condition came about, however, the courts may not permit the jury to speculate on these

vital elements. Hardesty v. Service Merchandise Co., 953 S.W.2d 678, 683 (Tenn. App.

1997); Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47 (Tenn. App. 1995). As this

court previously stated,

                [A] case will not be submitted to a jury upon mere speculation.
                “A case does not have to be submitted to a jury where there is
                a mere spark or glimmer of evidence. There must be some
                evidence of a material and substantial nature.” Sadek v.
                Nashville Recycling Co., 751 S.W.2d 428, 431 (Tenn. App.
                1988).

Jones v. Golden, No. 03A01-9108-CV-00269, 1991 WL 238275, at *2 (Tenn. App. Nov. 18,

1991).



         Based on the evidence presented in this case, a jury could infer that somebody

placed the string across the sidewalk sometime between 5:30 p.m. and sunset. Bearden

stated that the string was not in place when he left the workers at about 5:30 p.m., but

Schmell’s affidavit revealed that he observed the string sometime “during the daytime

hours.” Moreover, because of the presence of dried concrete on the string, the jury could

infer that the string came from the construction site itself or, at the very least, from another

site where concrete had been poured. Nevertheless, we do not view this evidence as

being of a material and substantial nature because, without more, the evidence requires

the jury to speculate as to who placed the string across the sidewalk and as to when this

dangerous condition was created. Accordingly, we hold that the trial court properly granted

the Defendants’ motions for summary judgment.



         In urging this court to reverse the trial court’s summary judgments, Tyler argues that,

regardless of who placed the string across the sidewalk, the Defendants were negligent

in failing to place a barricade or warning sign at the construction site to protect the public.

We conclude that this argument is without merit. The evidence presented below indicated

that the newly-poured sidewalk did not constitute a dangerous condition for the public. It


                                                6
was undisputed that, at the time Whitsett and his workers left the construction site, the

concrete was dry enough to walk on and, thus, no barricade was needed to keep

pedestrians off of the sidewalk. Although Bearden discussed the need for a barricade with

the workers, his testimony did not contradict Whitsett’s assertion that the concrete had

dried sufficiently by the time Whitsett and the other workers left to render the use of a

barricade unnecessary. Bearden talked to the workers after they had finished pouring the

concrete, but he did not testify regarding the degree to which the concrete had dried.

Other than the string stretched across the sidewalk, therefore, the record contains no

evidence that the newly-poured sidewalk presented a dangerous condition for pedestrians.

Absent evidence that the Defendants either created or knew about the string stretched

across the sidewalk, Tyler’s claims of negligence must fail.



       Citing language in the contract between United Cities Gas Company and Larry

Morgan, Tyler alternatively argues that this contract imposed a duty upon the Defendants

to inspect the construction site and to ensure the public’s safety by erecting barricades and

taking other safety precautions. Inasmuch as Tyler has failed to allege that she was a

third-party beneficiary of the contract between the Gas Company and Morgan, however,

we reject the argument that this contractual duty extended to Tyler. Speaker v. Cates Co.,

879 S.W.2d 811, 816 (Tenn. 1994); United Am. Bank v. Gardner, 706 S.W.2d 639, 642

(Tenn. App. 1985). We likewise reject Tyler’s contention that the construction of the

sidewalk was inherently dangerous work such as to impose an absolute, nondelegable duty

on any of the parties in this case to ensure the safety of the site. Marshalls of Nashville,

Tennessee, Inc. v. Harding Mall Assocs., 799 S.W.2d 239, 243-44 (Tenn. App. 1990).

Simpson v. Allied Van Lines, Inc., 612 S.W.2d 172, 174-75 (Tenn. App. 1980).



       Defendants Tatum and Quad States also have raised an issue on appeal,

contending that the trial court erred in denying their motion for discretionary costs. The

award of discretionary costs is governed by rule 54.04(2) of the Tennessee Rules of Civil

Procedure. Pursuant to this rule, costs not included in the bill of costs, i.e. discretionary

costs, “are allowable only in the court’s discretion.” See T.R.C.P. 54.04(2). This court will



                                             7
not interfere with an award or denial of discretionary costs except upon an affirmative

showing that the trial court abused its discretion. Perdue v. Green Branch Mining Co., 837

S.W.2d 56, 60 (Tenn. 1992); In re McCoy, No. 03A01-9604-CH-00143, 1996 WL 599703,

at *7 (Tenn. App. Oct. 21, 1996), perm. app. denied (Tenn. Apr. 7, 1997); Ashford v.

Benjamin, No. 02A01-9311-CV-00243, 1994 WL 677607, at *2 (Tenn. App. Dec. 6, 1994);

Faux v. Spears, No. 03A01-9312-CV-00433, 1994 WL 147830, at *2 (Tenn. App. Apr. 26,

1994).



         Generally, trial courts award such costs to whichever party ultimately prevails in the

lawsuit, provided the prevailing party has filed a timely, properly supported motion.

Turner v. Turner, No. 01A01-9506-CV-00255, 1997 WL 136448, at *17 (Tenn. App.

Mar. 27, 1997); Austin Powder Co. v. Thompson, No. 03A01-9607-CV-00229, 1996 WL

718291, at *2 (Tenn. App. Dec. 16, 1996); Dent v. Holt, No. 01A01-9302-CV-00072, 1994

WL 440916, at *3 (Tenn. App. Aug. 17, 1994), modified on other grounds, 1994 WL

503891 (Tenn. App. Sept. 16, 1994); Harmon v. Shell, No. 01A01-9211-CH-00451, 1994

WL 148663, at *7 (Tenn. App. Apr. 27, 1994). The successful party, however, is not

automatically entitled to an award of costs. See Benson v. Tennessee Valley Elec. Coop.,

868 S.W.2d 630, 644 (Tenn. App. 1993); Faux v. Spears, 1994 WL 147830, at *2;

Webber v. Bolling, 1989 WL 151496, at *4 (Tenn. App. Dec. 13, 1989). Instead, trial courts

are free to apportion costs between the litigants as the equities of each case demand.

Perdue v. Green Branch Mining Co., 837 S.W.2d at 60; In re McCoy, 1996 WL 599703,

at *7; Christian v. Harding, 1993 WL 156164, at *1 (Tenn. App. May 14, 1993).

Accordingly, if any equitable basis appears in the record which will support the trial court’s

apportionment of costs, this court must affirm. See, e.g., Benson v. Tennessee Valley

Elec. Coop., 868 S.W.2d at 644 (holding that trial court did not abuse its discretion in failing

to award costs to successful plaintiffs, in light of large amount of jury verdicts in plaintiffs’

favor); cf. Dent v. Holt, 1994 WL 440916, at *3 (holding that trial court abused its discretion

in denying prevailing party’s motion for discretionary costs where no basis for such denial

appeared in record). On appeal, the appellant bears the burden of showing that the trial




                                               8
court abused its discretion in its assessment of costs. Faux v. Spears, 1994 WL 147830,

at *2.



         Applying the foregoing standard, we affirm the trial court’s decision to deny Tatum’s

and Quad States’ motion for discretionary costs. After conducting a hearing on the motion

for discretionary costs, a transcript of which does not appear in the appellate record, the

trial court denied the motion. In support of its denial, the trial court reasoned that this case

was disposed of by summary judgment relatively early in the life of the lawsuit and, further,

that Defendants Tatum and Quad States were better able to afford the discretionary costs

than Tyler. Under these circumstances, Tatum and Quad States have failed to meet their

burden of showing that the trial court abused its discretion in denying their motion for costs.



         The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed

to the Plaintiff, for which execution may issue if necessary.




                                                                  HIGHERS, J.




CRAWFORD, P.J., W.S. - Dissents




FARMER, J. - Concurs




                                               9
