                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE


HAZEL THREET,                             )
                                          )
                                                                    FILED
              Plaintiff/Appellant,        ) Davidson Circuit No. 96C-123
                                          )                        July 14, 1999
VS.                                       ) Appeal No. 01A01-9805-CV-00255
                                          )                     Cecil Crowson, Jr.
OPRYLAND, USA, INC.,                      )                   Appellate Court Clerk
                                          )
              Defendant/Appellee.         )


           APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                        AT NASHVILLE, TENNESSEE
               THE HONORABLE MARIETTA M. SHIPLEY, JUDGE




MALCOLM L. McCUNE
BLACKBURN, SLOBEY, FREEMAN & HAPPEL
Nashville, Tennessee
JAMES W. NOBLES, JR.
Jackson, Mississippi
Attorneys for Appellant



DIANNA BAKER SHEW
FARRIS, WARFIELD & KANADAY
Nashville, Tennessee
Attorney for Appellee




AFFIRMED




                                                               ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    Plaintiff Hazel Threet (“Threet” or “Appellant”) appeals the judgment of the trial court
which granted summary judgment to Opryland, USA, Inc. (“Opryland” or “Appellee”),

dismissing the Complaint of Threet.



                             I. Factual and Procedural History



       On October 20, 1992, Threet and a group of her fellow church members from Pearl,

Mississippi, were in Nashville, and were guests at the Gaslight Theater and the Nashville

Now show, owned and operated by Opryland. The group entered the theater prior to the

show and were seated on one of the upper rows of the theater. To get to and from her

seat, Threet had to ascend and descend the stairs and aisle. After the show was finished,

Threet, along with the other members of the group (including Mr. and Mrs. Clyde Blount,

and Jolene Miley) began to descend the stairs along the aisle. Threet tripped on a chair

leg, which was protruding into the aisle and stairway, fell and fractured her hip.



       According to Threet, Jolene Miley, and Mr. and Mrs. Blount, lighting in the theater

was dimmed shortly before the accident, so that the lighting in the area where Threet fell

was insufficient for Threet to discern and see the chair leg protruding into the aisle. The

lights were under the exclusive control of Opryland’s employees.



       Threet sued Opryland for damages, alleging that Opryland failed to make its

premises reasonably safe by its failure to remove a chair which had protruded into the

stairway, which had come loose from a string of chairs to which it was attached, and

Opryland’s failure to provide or maintain lighting for its patrons who were exiting the theater

at the time of the accident.



       Opryland moved for summary judgment on two grounds: (1) That Opryland had no

actual or constructive notice of the chair protruding into the aisle and stairway prior to

Threet’s fall, and (2) that the lighting in the theater at the time of the accident was sufficient

for Threet to have seen the hazard which caused her to fall. Opryland relied on the affidavit

of Laura-Grace Meredith, the person in charge of the theater at the time of the injury, who



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stated that Opryland had no actual or constructive notice. The trial court granted summary

judgment on the issue of lack of constructive notice and held under advisement the lighting

issue, inviting expert opinions as to the lighting present at the time of the accident.



        Opryland gave notice again of its Motion for Summary Judgment as to the lighting

issue and submitted an affidavit from Dr. Francis M. Wells, an electrical engineer who gave

an expert opinion as to the sufficiency of the lighting in the theater based on an electrical

schematic of the theater house lights and the standards applicable to public buildings. The

theater had been remodeled since the time of the accident so Dr. Wells’ opinion was based

solely on plans and specifications and not on personal knowledge of the lighting or its level

at the time of Threet’s fall. The trial court granted summary judgment on the lighting issue,

finding no genuine issue of material fact as to the sufficiency of light present at the time of

the fall.



                                  II. Standard of Review



        According to Rule 56.03, summary judgment is to be granted if 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."



        In ruling on a motion for summary judgment, the trial court and the Court of Appeals

must consider the matter in the same manner as a motion for a directed verdict made at

the close of the plaintiff’s proof, i.e., all the evidence must be viewed in the light most

favorable to the opponent. It is only when there is no disputed issue of material fact that

a summary judgment should be granted by the trial court and sustained by the Court of

Appeals. Graves v. Anchor Wire Corp. of Tennessee, 692 S.W.2d 420 (Tenn.App. 1985);

Briggs v. Riversound Ltd. Partnership, 942 S.W.2d 529, 532 (Tenn.App. 1996).



        When the party seeking summary judgment makes a properly supported motion, the



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burden then shifts to the nonmoving party to set forth specific facts, not legal conclusions,

by using affidavits or the discovery materials listed in Rule 56.03, establishing that there

are indeed disputed, material facts creating a genuine issue that needs to be resolved by

the trier of fact and that a trial is therefore necessary. Byrd v. Hall, 847 S.W.2d 208, 215

(Tenn. 1993).



       In appeals from grants of summary judgment, the Court of Appeals must decide

whether the court below correctly applied Rule 56.03 and in so doing, the Court must make

an entirely fresh determination because only questions of law are presented; no

presumption of correctness accompanies the trial court’s decision. Hill v. Chattanooga, 533

S.W.2d 311(Tenn.App. 1975); Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn.App. 1997).



                                 III. Summary Judgment



       Threet appeals the portion of the trial court’s order which granted summary

judgment to Opryland on the issue of adequacy of lighting. Threet introduced evidence in

the form of portions of her deposition and the affidavits of three eyewitnesses who were

present at the time of the accident. Threet argues that none of the evidence offered by

Opryland addressed the intensity or level at which the house lights were “on” at the time

of the accident. There was no evidence that the lights were not controlled by a dimmer or

rheostatic switch which would allow the lights to be “on,” yet dimmed. Threet also argues

that actual or constructive notice of the condition of the premises is not required under the

“method of operation” theory. Threet contends that Opryland’s method of operation of its

lighting system created the specific hazard which proximately caused her fall.



       In the answers to Threet’s interrogatories, Opryland averred that there were three

types of lighting in the theater which consisted of stage lights, spotlights and houselights.

Opryland further asserted that the house lights consisted of approximately one hundred

fifty-four 150 watt flood lights and remained on 24 hours per day.




                                             4
       In moving for summary judgment Opryland introduced expert testimony, in the form

of an affidavit, on the lighting issues. The expert, a registered professional engineer, based

his opinion upon the discovery responses of Threet and Opryland stating that the house

lights were on, and upon the lighting diagram for the theater. Based upon the lighting

diagram, the expert found that the house lighting consisted of one hundred fifty-four lights

of 150 watts each. This being the case, the expert testified that the theater was in

reasonably safe condition at the time of Threet’s fall and there was sufficient light for a

person to walk through the theater, even if that person encountered obstacles. The expert

testified that the lighting complied with all applicable standards.



       In opposition to Opryland’s motion for summary judgment, Threet introduced

affidavits from three eyewitnesses, namely Jolene Miley, Clyde Blount and Mrs. Clyde

Blount. In each of the affidavits, a statement was made that the lights in the theater

“dimmed” before Threet’s fall, making it difficult to see the seat protruding into the aisle.

None of the witnesses testified as to which set of lights was dimmed. However, in Threet’s

answers to the interrogatories of Opryland, Threet stated that the stage lights and

spotlights were turned off, but the house lights remained on. Given the uncontradicted

evidence that there were three types of lighting in the theater, the testimony taken as a

whole is consistent with Threet’s testimony that the stage lights and spotlights were turned

off (causing the lighting in the theater to dim) while the house lights remained on.



       As stated by the trial court in its order granting partial summary judgment, it is

Threet’s burden to show that the dimming of the lights, if proven, can provide a dangerous

condition created by Opryland. It is uncontradicted that the theater contained three different

types of lights. Opryland offered sworn testimony that the house lights remained on 24

hours a day. While the witnesses testified that the lighting in the theater “dimmed” before

the fall, they did not testify as to which sets of lights dimmed nor was there any proof

presented that the house lights were ever turned off. In fact, Threet herself stated, in her

answers to Opryland’s interrogatories, that the stage lights and spotlights were turned off,

but that the house lights remained on.



                                              5
       Assuming Threet could prove that the lights in the theater were dimmed, the

uncontradicted testimony is that the house lights in the theater remained on 24 hours per

day. Threet presented no expert evidence to support her claim that the lighting that

remained on provided a dangerous condition. While witnesses presented lay testimony that

the lighting made it hard to see in the theater, the expert testimony provided by Opryland

found the lighting met all applicable standards and that the theater was in reasonably safe

condition at the time of the fall. Absent evidence to the contrary, summary judgment was

proper.



       Threet also argues that Opryland could be found negligent under a “method of

operation” theory. Under this theory of premises liability, a jury issue is made where the

evidence shows that the proprietor’s method of operation creates a hazardous situation

forseeably harmful to others. Martin v. Washmaster Auto Center USA, 946 S.W.2d 314,

318 (Tenn.App. 1996). Threet contends that Opryland employees and personnel, in

complete charge of the lighting in the theater, operated its lighting system, and chose the

method of operation of its lighting system by dimming the lights to an insufficient level for

Threet to see the steps and aisle down which she was required to walk to exit the theater.



       As discussed above, there was no testimony presented which contradicted the fact

that the house lights remained on. The expert testimony established that such lighting

complied with applicable standards and maintained the theater in a reasonably safe

condition. Accordingly, Opryland could not be found negligent under the “method of

operation” theory, as there was no proof that the lighting in the theater constituted a

hazardous condition.



       Threet failed to set forth evidence creating a genuine issue of material fact that the

lighting at the time of Threet’s fall created a hazardous condition. We therefore find that

the trial court did not err in granting summary judgment to Opryland and dismissing the

complaint of Threet.




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                                     IV. Conclusion



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

taxed to Appellant, for which execution may issue if necessary.




                                                       HIGHERS, J.


CONCUR:




FARMER, J.




LILLARD, J.




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