WILLIAM BAUMGARDNER          )
and wife,                    )
SUSAN BAUMGARDNER,           )
                             )
      Plaintiffs/Appellants, )     Appeal No.
                             )     01-A-01-9806-CV-00307
v.                           )
                             )     Rutherford Circuit
ACD TRIDON NORTH AMERICA, )        No. 37471
INC.,                        )
                             )
      Defendant/Appellee.    )
                             )
                                               FILED
                                               September 23, 1998

             COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
                                              Appellate Court Clerk

 APPEAL FROM THE CIRCUIT COURT FOR RUTHERFORD COUNTY

               AT MURFREESBORO, TENNESSEE


       THE HONORABLE ROBERT E. CORLEW, III, JUDGE




GUY R. DOTSON, JR.
102 South Maple Street
Murfreesboro, Tennessee 37130
      ATTORNEY FOR PLAINTIFFS/APPELLANTS




JOHN R. RUCKER, JR.
14 Public Square North
Murfreesboro, Tennessee 37130
     ATTORNEY FOR DEFENDANT/APPELLEE



                 AFFIRMED AND REMANDED


                                    WILLIAM B. CAIN, JUDGE
                                OPINION
          This is an appeal by plaintiff from summary judgment rendered by the
trial court in favor of the defendant in a personal injury case.


          William Baumgardner and wife Susan Baumgardner are husband and
wife plaintiffs in the case. ACD Tridon North America, Inc. is the defendant.


          William Baumgardner was, at the time of the accident in this case, a
long time employee and route driver for UPS. His delivery route was in Smyrna,
Tennessee and involved driving 80 to 100 miles a day and making 95 to 120
stops per day. He also averaged about 15 pickups per day. Among the
customers on his route for many years was the defendant Tridon. He had been
making pickups at Tridon for four or five years prior to the date of the accident
in question.


          The plaintiffs' complaint asserts:
                 4. At all times mentioned herein, Plaintiff,
          WILLIAM BAUMGARDNER was employed by United
          Parcel Service as a package deliveryman and duties included
          picking up and delivering packages to Defendant.

                5. On November 6, 1995, Plaintiff, WILLIAM
          BAUMGARDNER was picking up packages from Defendant
          as a business invitee by using Defendant's self propelled
          hand jack up and down defendant's ramp.

                  6. On the above date as Plaintiff, WILLIAM
          BAUMGARDNER was travel[l]ing down defendant's ramp
          with Defendant's self propelled hand jack, Plaintiff,
          WILLIAM BAUMGARDNER lost control of the hand jack,
          was knocked of[f] balance and did fall causing personal
          injury.

                 7. It was the duty of the Defendant to design, build,
          keep and maintain the above described ramp in a condition
          reasonably safe for its intended uses and free from all defects
          and conditions which would render it dangerous and unsafe
          for Plaintiff, WILLIAM BAUMGARDNER, or present an
          unreasonable risk of harm to him in his lawful use of the
          ramp.


                                        -2-
                 8. It was the duty of the Defendant to instruct
          Plaintiff, WILLIAM BAUMGARDNER, on the proper use
          of the self propelled hand jack.

                 9. Defendant was negligent in that they failed to
          perform the above described duties and as a proximate result
          thereof, Plaintiff, WILLIAM BAUMGARDNER was
          knocked off balance and fell and was injured.



          The Law


          The Tennessee Supreme Court has said:
          It is axiomatic that three elements are necessary for the
          existence of a cause of action for negligence; (1) a duty of
          care owed by the defendant to the plaintiff; (2) a breach of
          that duty by the defendant; and (3) an injury to the plaintiff
          which was proximately caused by the defendant's breach of
          a duty.

Lindsay v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn. 1985).



          No claim for negligence can succeed in the absence of: 1) duty, 2)
breach of that duty, 3) injury or loss, 4) causation in fact, and 5) promixate cause.
McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991); Bradshaw v. Daniel, 854
S.W.2d 865 (Tenn. 1993).


          In the context of a negligence action against a landowner, the summary
by Justice Henry two decades ago remains essentially viable.
                 [1,2] Owners and occupiers of land have an obligation
          to exercise ordinary care and diligence in maintaining their
          premises in a safe condition for invitees. Paradiso v. Kroger
          Co., 499 S.W.2d 78 (Tenn.App.1973). Proprietors are under
          an affirmative duty to protect invitees, among them business
          visitors, not only against dangers of which they know but
          also against those which with reasonable care they might
          discover. Illinois Central Railroad Co. v. Nichols, 173 Tenn.
          602, 118 S.W.2d 213 (1937).

McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980).




                                         -3-
         The duty of the defendant being thus settled, the next inquiry is as to
whether or not there is any evidence in the record to establish a breach of that
duty by the defendant.


         Summary judgment having been granted in the trial court to the
defendant, this court, on appeal, must take the strongest legitimate view of the
evidence in favor of the appellant (Downen v. AllState Ins. Co., 811 S.W.2d 523
(Tenn. 1991)), and if reasonable minds might differ or there is uncertainty as to
whether or not reasonable minds might differ as to material facts (Evco Corp. v.
Ross, 528 S.W.2d 20, 25 (Tenn. 1975)), the court must then go further and apply
the same standards to the issues of injury, cause in fact, and proximate cause. If
reasonable minds could differ on all of these elements, then a grant of summary
judgment is improper and the case must be remanded for trial on the merits.


         In 1986, the United States Supreme Court decided Anderson, Celotex,
and Matsushita, otherwise known as the "1986 Trilogy".


          Seven years later, after a number of intermediate Tennessee Appellate
Court decisions had pointed the way, the Tennessee Supreme Court essentially
adopted the "1986 Trilogy". Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).


          Justice Brennan, dissenting on other grounds in Celotex but confirming
the majority on the treatment of summary judgment correctly observed:
                 Where the moving party adopts this second option and
          seeks summary judgment on the ground that the nonmoving
          party--who will bear the burden of persuasion at trial--has no
          evidence, the mechanics of discharging Rule 56's burden of
          production are somewhat trickier. Plainly, a conclusory
          assertion that the nonmoving party has no evidence is
          insufficient. See ante, at 328. 911 Ed 2d, at 277 (White, J.,
          concurring). Such a 'burden' of production is no burden at all
          and would simply permit summary judgment procedure to be
          converted into a tool for harassment. See Louis 750-751.
          Rather, as the Court confirms, a party who moves for
          summary judgment procedure on the ground that the
          nonmoving party has no evidence must affirmatively show
          the absence of evidence in the record. Ante. At 323, 911 Ed
          2d, at 273. This may require the moving party to depose the
          nonmoving party's witnesses or to establish the inadequacy

                                       -4-
         of inadequacy of documentary evidence. If there is literally
         no evidence in the record, the moving party may demonstrate
         this by reviewing for the court the admissions,
         interrogatories, and other exchanges between the parties that
         are in the record. Either way, however, the moving party
         must affirmatively demonstrate that there is no evidence in
         the record to support a judgment for the nonmoving party.

Celotex v. Catrett, 91 L.Ed.2d 265, 279.



          Breach of Duty


         The record before the court on summary judgment consists of the
summary judgment motion and the depositions of William Baumgardner and
Gary White, an employee of the defendant.


         While credibility of witnesses is not an issue before this court, it is well
to take note of the candor and forthrightness of the plaintiff William
Baumgardner. Plaintiff, in his complaint, first asserts a duty of the defendant to
design, build, keep and maintain the ramp in the condition reasonably safe for its
intended uses and free from all defects and conditions which would render it
dangerous and unsafe for the plaintiff or present an unreasonable risk to him in
his lawful use of the ramp.


          This assertion is a correct statement of the duty of the defendant and
plaintiff then asserts a breach of that duty by the defendant.


          Plaintiff offers no evidence at all as to any defective, dangerous, or
unsafe condition of the ramp. He testifies:
                  Q.    Describe this ramp that you used to load your truck or to
          drive the hand jack down so you could load your truck.
                  A.    I don't know what degree the ramp is. It's a concrete
          ramp. I guess it's approximately forty feet long.
                  Q.    Is it a steep slope?
                  A.    I don't know, sir. I'm not an engineer. I couldn't tell you.
                  Q.    Just from a layman's standpoint, from your observations
          and the numerous times that you've used it, did you consider it to be
          steep?
                  A.    Gosh, I don't know. I guess it's fairly steep.
                  Q.    Was it so steep that you considered it to be dangerously
          steep?


                                             -5-
         A.    No, sir.
         Q.    It's made of concrete, is it not?
         A.    I believe so.
         Q.    Does it have any safety features on it?
         A.    Not that I'm aware of.
         Q.    Is it just a flat ramp?
         A.    I believe it's primarily a flat ramp. It may have a curb of
so many inches on each side.
         Q.    Does it, in fact, have curbs on each side?
         A.    I believe maybe -- two or three inches maybe.
         Q.    What was the condition of the ramp on the night that you
were using it as far as its surface condition?
         A.    Other than being wet, I don't recall. It may have had
gravel where the tow motors have come from the parking lot up the
ramp.
         Q.    It was raining that night, was it not?
         A.    Yes, sir.
         Q.    So the ramp was wet?
         A.    Yes, sir.
         Q.    You knew the ramp was wet when you were using it. Is
that true?
         A.    Yes, sir.
         Q.    Do you recall whether the ramp had any gravel on it or
not?
         A.    I don't recall.
         Q.    Do you recall whether the ramp had any cracks in it?
         A.    I don't recall that.
         Q.    Do you ever recall seeing any cracks in the ramp?
         A.    No.
         Q.    Did the ramp have any mud on it since it was raining?
         A.    Not that I was aware of.
         Q.    Right at the end of the ramp, what is at the end of the
ramp as it goes out into the parking lot?
         A.    A gravelled parking lot.
         Q.    Is it -- is there any grass or mud or dirt nearby the end of
the ramp?
         A.    Yes, sir.
         Q.    Where is that located?
         A.    It's just off to the side there. Off to the side of the
gravelled parking lot it's a grassy area.
         Q.    If you're walking down the ramp, to your left would be
the dock door; is that correct?
         A.    Correct.
         Q.    And what is to your right?
         A.    The grassy area.
         Q.    As you get down to the end of the ramp near the grassy
area, is that worn out from where people have driven tow motors and
other pieces of equipment there?
         A.    It's just a gravelled lot.
         Q.    Was there mud or rocks at the end of that ramp that
night?
         A.    There were rocks. I don't -- I couldn't tell you about mud.
         Q.    Did you back your truck up to the end of the ramp?
         A.    Yes, sir.
         Q.    How close was your truck to the end of the ramp?
         A.    It was probably fifteen, twenty feet from the ramp in the
parking area.
         Q.    Would you drive the hand jack all the way to your truck
or would your drive it to the end of the ramp and then carry the boxes

                                   -6-
from the end of the ramp to your truck?
         A.    I would leave enough space there where the pallet jack or
the skid of package could sit close to the back of the truck.
         Q.    On this particular night, since it was raining, did you
drive the pallet of boxes down to the end of the ramp, leave them there
and then drive the hand jack back up the ramp?
         A.    I took the first skid of packages down, loaded those onto
my truck and then brought the empty skid back up the ramp and went
to get the second skid.
         Q.    While you were loading the boxes off the skid, did you
l eave the hand jack in the rain or did you drive it back up?
         A.    It was in the rain. It was still sitting there.
         Q.    Was it dark by the time you got to Tridon?
         A.    Yes, sir.
         Q.    Are there any lights out there?
         A.    There are outside lights.
         Q.    Are there any lights in the ramp area?
         A.    Not that I recall.
         Q.    Was it well lit enough to where you could see what you
were doing?
         A.    Just pretty much from the light coming out of the
warehouse area where the door is, where the door was open.
         Q.    You don't recall any outside lights?
         A.    Not in that area.
         Q.    Was it your responsibility to load your own truck?
         A.    Yes, sir.
         Q.    Had you ever used that ramp on other occasions when it
had been raining?
         A.    I don't recall any specific time, but I'm sure there is a
possibility.
         Q.     On the night of the accident, did you consider the ramp
to be slick since it was wet?
         A.     No, sir.
         Q.     On any other occasions that you might have used the
ramp in the rain, did you ever find it to be slick?
         A.    No, sir.
         Q.    To your recollection, was there anything wrong with the
ramp that night that contributed to your accident?
         A.    Not that I'm aware of.
         Q.    On the night of the accident, were you aware that rain
would make a concrete ramp slick?
         A.     I'm aware of that, but I believe that ramp is grooved or it's
a rough type surface where you can avoid that.
         Q.     Do you think the rain played any part in your accident at
all?
         A.     I'm not aware. If it did, you know, it could have been a
contributing factor, but I wouldn't say that that was the sole cause of the
accident.
         Q.     But the ramp itself was either grooved or rough such that
the rain wouldn't make it any more slick than it would be ordinarily. Is
that true?
         A.     I believe so.
         Q.     To your knowledge, during all the times that you used
that ramp, was there ever an occasion that it was not in good condition,
properly maintained?
         A.     Just other than having gravel scattered on it. That's about
it.
         Q.     Would the gravel be scattered down at the bottom where
the parking lot is?

                                    -7-
                  A.     No, just the entire length of it. I guess the tow motors
          coming and going out of the gravelled parking lot would probably bring
          some up with them.
                  Q.     On this particular night, you don't recall there being any
          gravel on the ramp, though?
                  A.     No, I don't recall.


          This very candid testimony by the plaintiff not only fails to provide
material evidence of a breach of duty as to the condition and maintenance of the
ramp, but further fails to establish that the ramp had any causal connection at all
to his fall and resulting injuries. Indeed, his testimony shows affirmatively that
he has no evidence to support his claim of premises liability.


          His second assertion of duty is that the defendant had a duty to instruct
him in the use of the self propelled hand jack and failed to do so.


          Assuming such a duty to exist, which is a doubtful assumption, there
is simply no evidence in the record that the alleged failure to train had anything
to do with the accident in issue. Plaintiff had been using the same battery
powered, self propelled hand jack for four to five years prior to the occurrence
of this accident.


          Plaintiff testified:
                   Q.     When your accident happened, were you walking down
          the ramp with the jack with the skid of boxes on it?
                   A.     Yes, sir.
                   Q.     And was the jack in front of you and you were walking
          behind it?
                   A.     Yes, sir.
                   Q.     Was that the same -- were you doing the same thing you
          had done on many other occasions?
                   A.     Yes, sir.
                   Q.     Was there anything different about this particular night
          than what you had done on any other occasion?
                   A.     No, sir.
                   Q.     What happened to cause the jack to get away from you?
                   A.     I don't know, sir, if there was too much weight on the
          skid. I don't know, you know, if it just got haywire with me there. I just
          lost control of it and it just pretty much jerked out of my hand there. I
          couldn't control it.
                   Q.     Again, looking at the Complaint you have filed in this
          case, it stated that you were traveling down the ramp with a self-
          propelled hand jack and plaintiff, William Baumgardner, lost control of
          the hand jack, was knocked off balance and did fall, causing personal
          injury. Is that a pretty good description of what took place?
                   A.     Yes, sir.

                                             -8-
                  Q.     All right. When you lost control of the hand jack, did you
         let go of the handle so that it would pop up and stop the jack?
                  A.     Like I said, that happened so fast, I don't really recall.
         That may have been the case.
                  Q.     Did the hand jack at any time run over you?
                  A.     It may have. Like I say, it happened so quick. The next
         thing I knew, I was trying to stand up.
                  Q.     If the jack is in front of you and you're walking behind it,
         how could it run over you?
                  A.     The lever that comes back that I was holding onto with
         the controls on it, unless that thing could have swing, you know, and I
         went into it, I don't know really. It's a mystery to me.
                  Q.     Did you fall on the ramp?
                  A.     Yes.
                  Q.     When you fell, did you let go of the handle of the hand
         jack?
                  A.     Yes. All I remember, after it happened, I was on my back
         and I was trying to get up. So I'm sure at some point I did have to let go
         of it.

                                            ...

                   Q.    Mr. Baumgardner, were you in a hurry as you were
         coming down the ramp with this particular load?
                   A.    No, sir.
                   Q.    Are you certain that you were behind the jack at the time
         the accident happened?
                   A.    Yes, sir.
                   Q.    I may have asked you this before, but I just want to be
         sure. Can you offer any explanation as to what happened to cause this
         load to do different than all the rest of them you had taken down that
         ramp?
                   A.    I don't know, sir. I wouldn't have expected it to.
                   Q.    Was it a particularly big load?
                   A.    Just a normal-sized load, just an optimal size load for a
         skid there.
                   Q.    As you were going down the ramp, was it actually raining
         at that time or had it been raining and was sprinkling or misting? What
         was the condition of the rain?
                   A.    I believe it was sprinkling at the time.
                   Q.    Do you know of anything about the ramp or about the
         hand jack that caused you to lose control of the hand jack on that
         particular occasion?
                   A.    No, sir.
                   Q.    Was there anybody other than you who had total control
         of that hand jack?
                   A.    No, sir.



         There is no material evidence in the record establishing proximate
cause even if we assume a duty to train and a breach by the defendant of that
duty.


         Finally, in summary plaintiff testified:


                                             -9-
                   Q.    In the lawsuit that you filed against Tridon, you have
          alleged that they were in some way negligent or did something wrong
          to cause this accident. And what I would like for you to tell me just in
          your own words is what you feel Tridon did wrong or negligently to
          cause this accident.
                   A.    Well, I would say I was never officially trained to use
          their equipment. Maybe the maintenance of the ramp possibly could
          have something to do with it. That's -- I guess that's the -- that's the
          main thing that I can think of right off at this time. That's --
                   Q.    All right. You have mentioned that possibly the
          maintenance of the ramp may have had something to do with it. Was
          there anything about the ramp that you noticed that night that was a
          failure on their part to maintain that ramp?
                   A.    Nothing that I noticed. Like I said, there could have been
          debris on the ramp that I wasn't aware of.



          Viewing this case in the light most favorable to the non-moving
plaintiff, this court presents only the fact that an injury has occurred. It is long
settled in Tennessee that the mere fact than an injury has been sustained never
raises a presumption of negligence. Mullins v. Seaboard Coastline Railway Co.,
517 S.W.2d 198, 201 (Tenn. App. 1974). The testimony of plaintiff shows that
he has no evidence to sustain his action for non-instruction.


          Conclusion


          In this unfortunate accident, plaintiff has the burden of proving the
elements of his cause of action. To survive summary judgment he must at least
offer evidence upon which reasonable minds could differ. As to the ramp on
which he fell, he has offered no evidence of a breach of duty by the defendants.
As to the alleged failure to train in the use of the battery powered hand jack, even
if one assumes a duty and a breach thereof, the record is devoid of any evidence
under which reasonable minds could find proximate cause.


          The judgment of the trial court in granting summary judgment for the
defendant is affirmed.



________________________________
                                                   WILLIAM B. CAIN, JUDGE
CONCUR:

______________________________________
HENRY F. TODD, PRESIDING JUDGE, M.S.

                                            -10-
______________________________________
BEN H. CANTRELL, JUDGE




                                   -11-
