                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                 On-Briefs December 28, 2001

  CANDACE FLECK v. COOPER REALTY MANAGEMENT COMPANY,
                          ET AL.

                  A Direct Appeal from the Circuit Court for Shelby County
                   No. 95815 T.D.    The Honorable D'Army Bailey, Judge



                    No. W2001-00465-COA-R3-CV - Filed February 7, 2002


         Plaintiff allegedly sustained injuries at Mid Memphis Tower Building when she exited an
elevator which failed to level. She and her husband sued the building’s management company and
the company that owns the manufacturer of the elevator. The suit against the elevator company
alleges that the company was negligent “by failing to insure that the elevator in question was
properly inspected, maintained, and repaired.” The elevator company’s interrogatories, inter alia,
requested the identity of any expert witness the plaintiffs planned to use at trial. Plaintiffs answered
this interrogatory in December, 1998: “Plaintiffs have not identified such individuals at this time.”
The interrogatories were never supplemented, and the case was set for trial on December 1, 1999.
In October, 1999, the elevator company filed a motion for summary judgment on the ground that the
lack of an expert witness prevented plaintiffs from proving essential elements of the case. Plaintiffs
were granted additional time within which to obtain an expert witness and subsequently announced
that plaintiffs did not intend to have an expert witness. The trial court granted summary judgment
to the elevator company. Subsequently, the building’s management company settled its case and
upon dismissal of that suit, the grant of summary judgment became final. Plaintiff-wife appealed.
We reverse.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS ,
J. and DAVID R. FARMER , J., joined.

Christopher L. Taylor, Memphis, For Appellant, Candace Fleck

John S. Golwen, John W. Campbell, Memphis, For Appellee, Schindler Elevator Corporation



                                              OPINION
        Plaintiffs, Candace Fleck and husband, Daniel Fleck1, sued Cooper Realty Management Co.
and Schindler Elevator Corporation, d/b/a Miller Elevator Service Company. The complaint alleges
that on September 29, 1997, Mrs. Fleck (hereinafter “plaintiff”) was a passenger on an elevator in
the Mid Memphis Tower, 1407 Union Avenue, Memphis, Tennessee. As plaintiff was exiting the
elevator, she fell out of the elevator after the elevator failed to stop even with the floor. She
sustained severe injuries to her spine and neck. Plaintiff avers that the building is managed by the
defendant, Cooper Realty Management Co., and that Cooper violated its duty to keep the premises
in a proper and safe working condition. The complaint alleges as to Schindler:

                  The defendant Schindler Elevator Corporation d/b/a Miller Elevator
                  Service Company purchased and owns Westinghouse Elevator which
                  was the manufacturer of the elevator. Defendant Schindler Elevator
                  Corporation d/b/a Miller Elevator Service Company was negligent by
                  failing to insure that the elevator in question was properly inspected,
                  maintained, and repaired. As a direct and proximate result of this
                  defendant’s negligence, the plaintiff suffered severe psychological
                  and physical injuries.

        Schindler’s answer admitted that it is the successor in interest of Westinghouse Elevator but
denies the remaining allegations made against it.

        Schindler filed a motion for summary judgment on the grounds that there are no genuine
issues of material fact, and Schindler is entitled to a judgment as a matter of law. The motion states:

                  The record and uncontroverted facts demonstrate that plaintiffs
                  cannot establish Schindler’s liability for their alleged injuries and
                  cannot prove the essential element of proximate causation.
                  Accordingly, summary judgment is appropriate and should be
                  granted. Schindler relies upon its supporting memorandum and upon
                  the entire record in this action in support of its motion.

       By order entered October 5, 2000, the trial court granted summary judgment to defendant
Schindler, stating:

                  [T]his court found that plaintiffs had failed to obtain an expert
                  witness to establish that Schindler was negligent in maintaining,
                  inspecting, and repairing the elevator that is the subject of this
                  litigation, and that such failure was fatal to the plaintiffs’ case against
                  Schindler. This court, therefore, found that no genuine issue of
                  material fact existed and that Schindler was entitled to summary
                  judgment in this cause.


       1
           Daniel Fleck did no t appeal.

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        Plaintiff, Candace Fleck, appeals, and the only issue for review is whether the trial court
erred in granting summary judgment to Schindler.

         A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the 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. Id. When the moving party shows that there is no
genuine issue of material fact, the nonmoving party cannot simply rely upon his pleadings but must
set forth specific facts showing that there is a genuine issue of material fact for trial. Tenn. R.Civ. P.
56.06.

        In Horton v. Hughes, 971 S.W.2d 957 (Tenn. Ct. App. 1998), the Court said:

                A party may obtain a summary judgment by demonstrating that the
                nonmoving party will be unable to prove an essential element of its
                case, see Byrd v. Hall, 847 S.W.2d 208, 212-13 (Tenn. 1993),
                because the failure of proof on an essential element of a claim
                necessarily renders all other facts immaterial. See Alexander v.
                Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn.
                1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911
                S.W.2d 727, 729 (Tenn. Ct. App. 1995).

Id. at 959.

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the
trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate
of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        Schindler presented no affidavit or other sworn proof in support of its motion for summary
judgment but rests its motion entirely on plaintiffs’ failure to have an expert witness to prove the
essential elements of her case. Schindler asserts that plaintiffs’ case against it is a products liability
action, and plaintiffs must prove by expert testimony that the elevator was defective or unreasonably
dangerous at the time it left Schindler’s possession. We must disagree. Plaintiffs’ complaint alleges
that Schindler was negligent by not properly inspecting, maintaining, and repairing the elevator. The
elements of a cause of action based on negligence are duty, breach of duty, cause in fact, loss or
injury and proximate cause. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998)(citing Haynes v. Hamilton, 883 S.W.2d 606, 611 (Tenn. 1994)).


                                                   -3-
        Under the state of this record, it is impossible to ascertain whether expert proof is or is not
essential for plaintiffs to maintain their action. Schindler denies the allegations of the complaint, and
other than that, there has been no sworn proof of any kind to negate the plaintiffs’ allegations. It is
unclear whether plaintiffs will attempt to prove that there was a negligent inspection or repair, or that
there was negligence in failing to repair when promised, or whether there was some duty to provide
continuous maintenance for the elevator, and Schindler failed to do that. The allegations of the
complaint are barely sufficient to withstand a 12.02(6) motion, and when plaintiffs’ theory of
recovery against Schindler is ascertained, it may well require expert proof. Plaintiffs have not
provided any sworn proof concerning the cause of action but, under the state of this record at this
point, such proof is not essential. Our Supreme Court stated in McCarley, supra:

                       A party seeking summary judgment must demonstrate the
                absence of any genuine and material factual issues. Byrd v. Hall, 847
                S.W.2d 208, 214 (Tenn. 1993). Mere “conclusory assertion[s] that
                the non-moving party has no evidence is clearly insufficient.” Id. at
                215. The movant must either affirmatively negate an essential
                element of the non-movant’s claim or conclusively establish an
                affirmative defense. Id. at 215 n. 5. If the movant does not negate a
                claimed basis for the suit, the non-movant’s burden to produce either
                supporting affidavits or discovery materials is not triggered and the
                motion for summary judgment fails. Id.

Id. at 588.

        We find that a grant of summary judgment at this stage was premature. Accordingly, the
order of the trial court granting summary judgment to Schindler is reversed. The case is remanded
for further proceedings consistent with this opinion. Costs of the appeal are assessed against the
appellee, Schindler Elevator Corporation, d/b/a Miller Elevator Service Company.



                                                __________________________________________
                                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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