                                                                                          03/20/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               February 21, 2019 Session

               LEAH KEIRSEY V. K-VA-T FOOD STORES INC.

                 Appeal from the Circuit Court for Hamblen County
                  No. 13-CV-136            Alex E. Pearson, Judge
                      ___________________________________

                           No. E2018-01213-COA-R3-CV
                       ___________________________________

This matter involves the grant of summary judgment to defendant, K-VA-T Food Stores
Inc. (Food City), in a slip and fall case. Plaintiff, Leah Keirsey, filed an action alleging
that, on a rainy day, defendant negligently maintained its premises and failed to warn her
of hazardous conditions. Defendant moved for summary judgment arguing that it
exercised reasonable care to prevent injury to its customers and warned them of
potentially wet conditions; its motion was granted. Plaintiff appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Troy L. Bowlin, II, Knoxville, Tennessee, for the appellant, Leah Keirsey.

J. Eric Harrison and Jeffrey M. Cranford, Morristown, Tennessee, for the appellee, K-
VA-T Food Stores Inc., d/b/a Food City.

                                        OPINION

                                             I.

       It was raining on July 12, 2012 when plaintiff drove to defendant Food City for
groceries. She brought an umbrella with her and wore flip-flop/sandal shoes. When she
arrived at the store, plaintiff noticed there was water on the floor in the entryway. She
recalled that, “[i]t was minimal. Maybe a shoe print, couple of drops. Nothing you would
get somebody and say, ‘Hey, this needs to be cleaned up.’ ” She recalled there was not a
mat on the ground near the entrance; she instead had to wipe her feet on concrete outside
before entering. Plaintiff shopped for over an hour.

                                            -1-
       When plaintiff finished shopping, she asked a store employee to help her with her
grocery bags. She stated that she “was going to pull [her] car up to the curb and load [her]
groceries since it was still raining.” A courtesy clerk subsequently assisted plaintiff by
pushing her cart toward the exit. As plaintiff proceeded toward the exit, she slipped and
fell.

       Plaintiff testified that she did not see “any puddles of water [in the lobby] until
[she] actually slipped on it and fell to the floor.” She inferred that:

              a large puddle of water mixed with dirt caused me to slip on
              the floor and fall because I ended up in a large puddle of dirty
              water that had not been there when I came into the store about
              an hour and a half earlier.

Three of defendant’s employees who were working that day testified regarding the
condition of the entryway. They also testified regarding defendant’s rainy day policy and
their alleged adherence to the policy on the day at issue.

       Monica Sena was defendant’s head cashier. She recalled the events. She testified
that it was part of her job to keep the lobby floor as clean as possible under the
circumstances. She testified that there had been three or four days of continuous rain that
week; she recalled having to take a detour home due to the atypical flooding. She testified
that the courtesy clerks wiped the shopping carts with paper towels that day to prevent
them from dripping water onto the floor. She recalled putting “wet floor signs at the
entranceways, and one in the middle.” She testified that they kept dry mops nearby to
absorb excess water. She recalled that they had placed rugs in the entranceways for
additional traction and rotated them often.

        Josh Hannah was the courtesy clerk who assisted plaintiff with her groceries. He
also testified regarding his recollection of the events. He recalled there were “wet floor”
signs, one at each entrance, and an additional one in the middle of the foyer. He
personally placed the one in the middle; he recalled “there [were] a total of three in the
lobby, one by each door, and one in the middle.” He testified that there was a mop near
the entrance “that [the courtesy clerks] had been using to spot mop the lobby to keep it
dry as much as they could.” He was behind plaintiff when she slipped, and he did not
recall seeing a “puddle” or “pool” of water on the floor where plaintiff fell.

       In addition, the on-duty assistant store manager testified. He recalled walking to
the front of the store to make sure the signs were placed. He testified that there was one at
each entrance and one in the middle. He was called to the front of the store after plaintiff
fell. He stated that he noticed some water on the floor, and described it as, “like being
tracked in…on someone’s shoes…it wasn’t puddled up.”

                                             -2-
       After her fall, Plaintiff’s ex-husband took her to an emergency room. She had a
“gaping wound on [her] knee that was bleeding pretty profusely.” She had an x-ray of her
knee and an MRI of her neck. She received stitches in her knee; she was given a brace for
her neck. The stitches were removed a week later; she used the neck brace for one day.
She did not break or otherwise damage any bones. Plaintiff states that for, “several
months after this accident, I had orthopedic manual therapy…for my knee, hip and lower
back which did help some but did not resolve all the pain I was having.” Plaintiff
received injections in the “inflamed and painful areas.” Her daily activities were
hindered.

       Plaintiff filed a complaint alleging that defendant was negligent by failing to
maintain the premises and by failing to warn customers of the dangerous conditions
caused by the wet floor. Defendant denied liability alleging that its employees were not
negligent in the maintenance of the premises, that defendant properly warned its
customers of potentially dangerous conditions due to the weather, and that plaintiff failed
to take reasonable care to avoid injury and is at least fifty percent at fault for the injuries
she sustained.

       In the course of discovery, defendant produced a surveillance videotape of the
incident. The trial judge watched the recording; he discussed his observations:

              there was a "wet floor" sign, "caution/wet floor" sign in the
              video. It was placed originally on...sort of towards the
              center...it's hard to tell from the angle of the video but
              towards the center of the entryway of Food City. And what I
              say by the "entryway" there are two doors that you can come
              in Food City and the "wet floor" sign we can see is fairly
              close it appears to the center of both of those doors as you
              would come in through the foyer and then come into Food
              City proper, the actual store. The outside area, I think there's
              probably or it looks like there were some kids that were
              playing... But this "wet floor" sign is as you come into Food
              City. And that's present. It does get moved at different times
              during the video and Mr. Bowlin is correct that at the
              conclusion of all the cleanup and after Ms. Keirsey is gone
              the "wet floor" sign is then closer to the left side of the video
              screen than it initially was…

              Ms. Keirsey was aware it had been raining. She observed it.
              Obviously she had an umbrella. She observed water in the
              floor as she first came in.


                                              -3-
                       *      *      *


There was testimony from Food City about all...essentially all
their witnesses through deposition that there was this rainy -
day policy about all the things that they were supposed to be
doing, what their policy was, about mops and where they
should put buggies and then if they were bringing them in that
they should dry them off if they didn't leave them outside to
dry off. Which you can't really see that on the videotape. I
mean, you don't...you don't know what happened because we
just don't have that portion of the videotape.

But where the...and Food City was obviously aware it's
raining as well.

Here you have Ms. Keirsey after she spends as she says an
hour to an hour and a half in the store. We don't know exactly
how long. She’s exiting. She's got her groceries. She's
leaving. She has an umbrella in her hand and she asks one of
the courtesy clerks if he will assist her with taking her
groceries out to the car because it's still raining. And so I
presume she's going to go get the car and bring that up and
then that way they can put the groceries in and not get all her
groceries wet...

So there's no question that Ms. Keirsey knew that it was still
raining. That was the reason she wanted the courtesy clerk to
accompany her outside the store.

And there's no question that when it's raining out and you
have people coming in a Food City you're going to have
water tracks in the floor. Now Ms. Keirsey makes a statement
as I took it from her deposition…that she didn't see any mats.
Well there is a mat that you can see on the videotape. Now
I'm talking about a mat inside the store. I...there was
testimony from Food City there should have been mats
outside the store but Ms. Keirsey says she scrapped or
cleaned her feet if you will on the concrete and not on the
mat. But regardless of that there was a mat that you can see in
the video and you can see the mat removed from the


                              -4-
              videotape as they're cleaning the area and then you can see
              the mat put back in that area.

              So as the Court thinks through this case Ms. Keirsey, she
              knew the floor was wet. There were numerous patrons
              coming in and out of that location. There was a "wet floor"
              sign and it might very well be...it was clearly there. It might
              very well be that she didn't pay any attention to it. I'm
              certainly not accusing her of any dishonesty. In her deposition
              she seemed like she wanted to, you know, be very truthful in
              it. But there were people from Food City that were attending
              to her. There's a first aid kit. It seems Ms. Keirsey testified
              about how long it was, not that this is relevant to the initial
              fall but it's just important as you're considering the facts. She
              testified she laid there for a period of time, nobody helped
              her, things of that nature. But those...that was her perception...
              She didn't disagree with the videotape she just would say that
              her impression was that it was longer, her impression was this
              or impression was that…


                                      *       *      *


              …the Court finds that the attempt to create disputed facts is
              not controlling in this particular case. The Plaintiff was on
              notice that the floor was wet. When you have people coming
              in a store such as Food City and it’s raining there’s going to
              be water on the floor. Ms. Keirsey knew that. There’s just no
              evidence, no disputed material facts that Food City was
              negligent in the way they maintained that premises. They put
              up a “wet floor” sign. They say three. We can clearly see one
              right prominent in the entryway. There is clearly a rug there
              that Ms. Keirsey says, as I take her testimony there wasn’t
              one there or she didn’t recall one being there but it is there. I
              can see it in the videotape.

      The court held that there were not any disputed facts, and if there are, then they are
not material facts. It granted defendant’s motion for summary judgement. Plaintiff
appeals.




                                             -5-
                                             II.

      We consolidate and restate plaintiff’s issue on appeal as asking this Court to
consider whether the trial court erred in granting defendant’s motion for summary
judgment.

                                             III.

       For the purposes of review on appeal of motions for summary judgment, we view
the facts in favor of the non-moving party plaintiff. Summary judgment is appropriate
when “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.” Tenn. R. Civ.
P. 56.04; Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn.
2015).

        We review a trial court's ruling on a motion for summary judgment de novo,
without a presumption of correctness. Id. The moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the nonmoving
party's claim or (2) by demonstrating that the nonmoving party's evidence at the summary
judgment stage is insufficient to establish the nonmoving party's claim or defense. Id.

        When a motion for summary judgment is properly supported, the nonmoving
party, in order to survive summary judgment, may not rest upon the mere allegations or
denials of its pleading but must respond, and by affidavits or one of the other means
provided in Rule 56, set forth specific facts showing that there is a genuine issue for trial.
Id. at 265. “The nonmoving party must demonstrate the existence of specific facts in the
record which could lead a rational trier of fact to find in favor of the nonmoving party.”
Id. “[S]ummary judgment should be granted if the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the existence of a genuine issue of
material fact for trial.” Id. (citing Tenn. R. Civ. P. 56.04, 56.06).

                                             IV.

                                             A.

       Premises owners have a duty to use reasonable care to protect their customers
from unreasonable risks of harm. Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App.
1999) (citations omitted). This duty includes maintaining the premises in a reasonably
safe condition either by removing or repairing potentially dangerous conditions or by
helping customers and guests avoid injury by warning them of the existence of dangerous
conditions that cannot, as a practical matter, be removed or repaired.


                                             -6-
        Nonetheless, owners of business premises are not insurers of their customers'
safety. Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d 860, 864 (Tenn. Ct. App.
2001) (citing McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 902 (Tenn. 1996)).
A plaintiff seeking recovery under a premises liability theory must establish the elements
of negligence. 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).

        Premises liability stems from superior knowledge of the condition of the premises.
Accordingly, the plaintiff must prove that the defendant had either actual or constructive
notice of the injury-causing condition. This proof may take one of two forms. First, the
plaintiff may show that the defendant itself caused or created the condition and, therefore,
had notice of it. Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989); Benson v.
H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn. Ct. App. 1985). Second, the plaintiff
may show that the dangerous condition existed for so long that the defendant should have
known about it. Chambliss v. Shoney's, Inc., 742 S.W.2d 271, 273 (Tenn. Ct. App.
1987); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. Ct. App. 1980).

       In its motion for summary judgment, defendant argues that plaintiff cannot
produce evidence from which the trier of fact could infer that the dangerous condition
existed long enough that it would have been discovered by one exercising reasonable
care. While defendant’s employees testified that they knew it was generally raining
outside, there remains no material evidence that any employee had actual knowledge of
the dangerous condition plaintiff encountered, i.e. “puddle” in the foyer.

        Plaintiff argues that defendant had constructive knowledge of the existence of the
dangerous condition and failed to take reasonable care to ensure the safety of its
customers by either eliminating the hazard or providing an adequate warning. Plaintiff
stipulated that she was aware it was raining at all relevant times on the day at issue. She
also testified that she saw water on the floor when she entered. Plaintiff argues that
defendants’ superior knowledge is based on a general knowledge of the “amount of water
that ultimately gets deposited in th[e] foyer area when it’s raining outside.”

       “In cases [] 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) (holding that mere proof of the
defect was not in itself sufficient to warrant or establish constructive notice on part of
defendant proprietor).


                                            -7-
        In David G. Rogers, ex rel. Karen Wright v. AutoZone Stores, Inc., the plaintiff,
Ms. Wright, slipped and fell in an AutoZone store. It was raining. Ms. Wright entered the
store, purchased the items she need, borrowed a funnel, and left. She returned about
twenty minutes later to return the funnel to the clerk. When she proceeded toward the
exit, she slipped and fell in a “puddle of water” and injured her knee. Ms. Wright recalled
that the puddle was the size of a plant pot, but she did not see it prior to her fall. The
employees did not see the spot prior to the fall. There was a warning sign near the front
of the store, but not where she fell.

       Ms. Wright filed suit against AutoZone alleging that it was negligent by failing to
maintain the premises and failing to warn customers of the dangerous condition caused
by the wet floor near the exit. Her claim was based upon constructive notice and the
premise that the condition existed for a long enough period of time that the employees
should have become aware of the condition. AutoZone moved for summary judgment; it
was granted. On appeal, this Court affirmed, holding that there was insufficient evidence
regarding the source of the puddle or the actual length of time that the puddle was present
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. Rogers ex
rel. Wright v. AutoZone Stores, Inc., No. M2011-02606-COA-R3CV, 2012 WL
3594342, at *7 (Tenn. Ct. App. Aug. 21, 2012).

       Here, plaintiff has not presented material evidence regarding defendant’s actual or
constructive notice of the dangerous condition, i.e. “puddle” of water in the foyer,
because plaintiff has failed to provide material evidence regarding the length of time that
the “puddle” was present. Plaintiff’s attempt to surmise that the dangerous condition
occurred sometime in the hour and a half between her entrance and her exit is
insufficiently specific for a reasonable trier of fact to infer that the dangerous condition
existed long enough that one exercising reasonable care would have discovered it.

        Plaintiff also argues that there remains an issue for the trier of fact precluding
summary judgment, because defendant was “negligent in failing to adequately warn the
public at large and the [p]laintiff [] of the floor’s slippery and dangerous condition.”
Plaintiff recalled that, as she “left the cash register area[,]…[t]here was still no mat and
no warning cone….” In its motion for summary judgment, defendant counters that
plaintiff’s claim must fail, because the video evidence clearly shows a yellow “wet floor”
warning sign prominently placed in plaintiff’s path of travel, and it also clearly shows a
mat placed at the entrance for additional traction. Accordingly, defendant argues that the
video evidence, combined with the testimony of defendant’s employees, renders plaintiff
unable to establish that defendant failed to exercise reasonable care under the
circumstances to prevent injury to persons lawfully on the premises.

      As discussed by the trial court, the surveillance video of the store’s entryway
shows a mat on the floor near the entrance; the video also shows a yellow “wet floor”

                                            -8-
warning sign positioned in the center of the store’s entryway. When an individual enters
or exits the store they inevitably encounter the warning sign. Moreover, the video shows
plaintiff exit in the direction of the yellow “wet floor” warning sign. She walks toward
the warning sign. She passes directly by the warning sign on her way toward the left exit
door. Contrary to plaintiff’s recollection, the video evidence shows that there was both a
mat and a warning sign in the entryway.

        Plaintiff argues that, despite the warning sign visible in the video, a factual issue
remains regarding whether, in accordance with its rainy day policy, defendant placed an
additional warning sign at each of the two exits. Unfortunately, the video provided does
not show the angle where the additional signs should be located. However, we agree with
the trial court’s holding that plaintiff’s attempt to create a genuine issue of material fact
as to whether or not two additional signs were present is not material nor controlling in
this matter, because the video evidence shows an indisputably present yellow “wet floor”
warning sign prominently placed in plaintiff’s view and path of travel. She passes directly
by the warning sign mere moments prior to her fall. The video evidence conclusively
establishes that defendant provided a warning to plaintiff of ongoing wet conditions in
the entryway. No reasonable factfinder could conclude defendant failed to warn plaintiff
of hazardous conditions.

                                             B.

        Plaintiff next argues that an issue of material fact exists as to whether or not
defendant adhered to its own rainy day policy “as to the wet floor signs and the mops
despite its knowledge of the continuing hazard.” Plaintiff argues that, because the
approximately half hour of video footage available prior to her fall does not show any
employees dry/spot mopping the entryway, defendant negligently failed to adhere to its
policy.

      Defendant’s “Customer & Associate Safety” PowerPoint slides indicate that
defendant’s rainy day policy calls for employees to “[d]ry mop the floor as needed.” The
“Rainy Day Policy” slide prepared by the store’s manager states that:

              When it is raining – [] Pull dry carts from the sidewalk to the
              inside of the store. Dry carts off for customers. [] Extra rugs
              should be pulled and placed down in the lobby from inside
              the store to help with the inclement weather. [] Wet Floor
              signs should be placed in the lobby.

       Defendant’s safety manual, in relevant excerpts, states that:

              All associates are advised to constantly be on the lookout for
              conditions that could cause a slip, trip or fall. Hazards found

                                             -9-
              must be corrected immediately, or the Manager must be
              advised of the condition if you cannot correct it.


                                      *      *      *


              Special attention should be given to the entrance and
              shopping cart areas on inclement weather days to bring wet
              floors under control and to caution the customer that the area
              may be wet or damp.

Defendant’s employees testified that they are to monitor the foyer and spot mop any wet
spots and/or spills they observe or of which they are otherwise made aware.

       In the course of performing their assorted work duties, the video shows
defendant’s employees traverse the foyer at various times in the half hour of video
footage available prior to plaintiff’s fall. An employee traverses the left side of the foyer
where plaintiff fell approximately eight minutes and fifty-four seconds prior to her slip
and fall. A different defendant employee traverses the right side of the foyer
approximately five minutes and forty-nine seconds prior to plaintiff’s fall. The video does
not show these employees use a mop; however, as discussed in the previous section of
this opinion, plaintiff has not presented any material evidence showing at what point
defendant employees should have, because no material evidence exists to show when the
dangerous condition formed. Plaintiff herself testified several times that up until the
moment she slipped and fell she was unable to “see the puddle.”

       Even if we look at the evidence in the light most favorable to plaintiff, the
evidence available at this point in the case does not indicate that a genuine dispute of
material fact remains as to whether defendant acted reasonably under the circumstances,
such that a reasonable trier of fact could conclude defendant was negligent in maintaining
its premises.

                                             C.

        Lastly, defendant asserts that plaintiff should be barred from recovery under the
doctrine of comparative fault. The Supreme Court has instructed that “so long as a
plaintiff's negligence remains less than the defendant's negligence the plaintiff may
recover.” McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992). If “the evidence is
evaluated in the light most favorable to the plaintiff and reasonable minds could not differ
that her fault was equal to or great[er] than that of the defendants, summary judgment in
the defendant's favor may be granted.” Staples v. CBL & Associates, Inc.,15 S.W.3d 83,
91-92 (Tenn. 2000).

                                            -10-
       In Elrod v. Continental Apartments, plaintiff Elrod drove to an apartment
complex to submit a security deposit the day after a winter storm. As she drove to the
complex, it was still snowing. The owner of the complex had shoveled and salted the
sidewalks and handicap ramps, but did not salt or shovel the parking lot where she
parked. When Elrod exited her car, she saw snow and ice on the ground, so she walked
carefully as she approached the complex. However, on her way back to the car, she
walked in a less careful manner. She subsequently slipped and fell resulting in her injury.
The trial court granted the defendant’s summary judgment motion and it was affirmed on
appeal. This Court held that Elrod failed to exercise reasonable care in the face of a
known hazard. She saw snow when she approached; she returned by the same path but
apparently failed to proceed with adequate caution. The Court held that reasonable minds
could not differ that her fault was greater than any of the defendants and therefore, the
defendants were entitled to summary judgment. Elrod v. Cont'l Apartments, No. M2007-
01117-COA-R3-CV, 2008 WL 425947, at *1 (Tenn. Ct. App. Feb. 13, 2008).

        Similarly here, plaintiff knew it was raining when she entered the store. She saw
water on the floor, and exhibited careful behavior by noticing the water and wiping her
flip-flops/sandals. As noted elsewhere in this opinion, she knew it was still raining when
she was ready to leave. Plaintiff maintains that she did not see a warning sign and it
remains a jury question whether the notice defendant provided was adequate; for
purposes of summary judgment, we can assume that she did not see the warning sign.
However, the video conclusively establishes that plaintiff did not see the warning, not
because of improper or inadequate placement, but because of her own inattention while
exiting. The video shows that, as plaintiff heads toward the exit, she looks down and
fiddles with her umbrella. She then turns her head to look backwards, continues walking,
and appears to speak to the clerk while pointing in another direction. She then continues
to walk while looking in the opposite direction of her travel as she passes directly by the
yellow warning sign. She then turns to face her direction of travel and four steps later she
slips and falls.

       The video evinces that, as plaintiff approached the exit, the wet floor sign was in
her field of vision. But see, Masters v. Wal-Mart Stores E., L.P., No. M2008-02752-
COA-R3-CV, 2009 WL 2868750 (Tenn. Ct. App. Sept. 1, 2009) (reversing summary
judgment because the warning sign was not in plaintiff’s ‘field of vision’ and there
remained a factual issue regarding whether the sign was an adequate warning). In this
matter, there is no question that the wet floor sign was clearly positioned in the center of
the entryway to warn patrons of wet conditions. Plaintiff’s argument that the sign was on
the “right side lobby” instead of in her field of vision is, again, contradicted by the video
evidence. The available evidence demonstrates that, despite her observant and careful
behavior when entering, plaintiff failed to exercise reasonable care to observe the
warning sign and proceed with caution, in the face of known wet conditions, upon her
exit. Her videotaped inattention, resulting in an apparent failure to observe and heed the

                                            -11-
provided warning, under comparative fault principles, renders her fault equal to or greater
than that of the defendants. Reasonable minds could not differ and no reasonable trier of
fact could conclude otherwise. Accordingly, defendant is entitled to judgment as a matter
of law.

                                            V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellant, Leah Keirsey. Case remanded for enforcement of the trial court’s judgment and
collection of costs assessed below.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




                                           -12-
