                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 6, 2002 Session


              K. MAHENDRA CHOWBAY v. BRIAN DAVIS, ET AL.

                     Appeal from the Circuit Court for Davidson County
                       No. 00C-1099     Marietta M. Shipley, Judge



                     No. M2001-01838-COA-R3-CV - Filed June 27, 2002




In this premises liability case, K. Mahendra Chowbay (“Plaintiff”) sued the owners of a club,
Silverado’s Saloon and Dance Hall (“Silverado’s”), for injuries Plaintiff received during an assault
by one of Silverado’s patrons, Brian Davis. Plaintiff also sued Davis. Silverado’s owners, Pat
Patton and Eight Track Management Company, LLC, d/b/a Silverado’s Saloon and Dance Hall
(“Defendants”), filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss which must be treated as a
motion for summary judgment because matters outside the pleadings were submitted to the Trial
Court. Defendants contended in their motion that since Davis’ assault of Plaintiff occurred on
property neither owned nor operated by Defendants, Defendants owed no duty of care to Plaintiff
to protect him from such an assault. The Trial Court granted Defendants’ motion. Plaintiff appeals.
We affirm.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., and
WILLIAM C. KOCH, JR., J., joined.

J. Todd Faulkner, Nashville, Tennessee, for the Appellant, K. Mahendra Chowbay.

C. Bennett Harrison, Jr., and Nicole R. Paulk, Nashville, Tennessee, for the Appellees, Pat Patton
and Eight Track Management Company, L.L.C., d/b/a Silverado's Saloon and Dance Hall.
                                                     OPINION

                                                    Background

               One evening in April 1999, Plaintiff and a friend went to Silverado’s. Plaintiff, while
waiting in his car near the front entrance of the club for his friend, saw Brian Davis, another
Silverado’s patron, fighting with a third party outside Silverado’s near the club’s front entrance.
Thereafter, Davis physically threatened Plaintiff, and the two began arguing. According to
Plaintiff’s Complaint, this prompted Silverado’s security employees to tell Plaintiff and Davis to
“take it somewhere else.” The record shows Plaintiff claims he then drove his car across the street
from Silverado’s to a vacant parking lot to avoid trouble. When Plaintiff saw his friend leave
Silverado’s, he motioned for his friend to cross the street to his car. Davis and a large group of men
then followed Plaintiff’s friend to the vacant parking lot where they surrounded Plaintiff. Davis
physically assaulted Plaintiff, which according to Plaintiff, resulted in serious physical injuries.

                Plaintiff sued Davis and Silverado’s owners, Pat Patton and Eight Track Management
Company, LLC, d/b/a Silverado’s Saloon and Dance Hall.1 Plaintiff alleged Defendants failed to
protect Plaintiff from Davis’ assault and served Davis too much alcohol. In response, Defendants
filed a motion to dismiss based upon Tenn. R. Civ. P. 12.02(6). As grounds for their motion,
Defendants argued they owed no duty of care to protect Plaintiff from the assault since the assault
did not occur on Silverado’s premises.2 Plaintiff, in his response to the motion to dismiss, contended
the parking lot where the assault occurred should be considered a part of Defendants’ premises since
Silverado’s patrons often used it for overflow parking. In support of his response to the motion to
dismiss, Plaintiff relied upon his affidavit which provided, in pertinent part, as follows:

                  (1) On the evening of the assault, the vacant parking lot where the
                  assault occurred was used as overflow parking by many of
                  Defendants’ patrons; and

                  (2) On numerous occasions prior to the assault, Plaintiff had
                  patronized Silverado’s and noticed many Silverado’s patrons using
                  the vacant lot for overflow parking.




         1
             Plaintiff was allowed by the Trial Court t o amend his original Complaint to name the correct owners of
Silverado’s, Pat Patton and Eight Track Management Co., LLC, d/b/a Silverado’s Saloon and Dance Hall, as defendants.
For simp licity’s sake, w e will treat Plain tiff’s amen ded com plaint as the “ Com plaint.”

         2
           Defendants’ specific argument in support of their Motion to Dismiss is unclear from the motion since the
motion itself does no t provide their argument and Defendants’ supporting memorandum of law is not contained in the
record on app eal. Plaintiff’s res ponse to the Motion to Dismiss, however, states Defendants argued, in the motion, that
they did not ow e a duty of care to p rotect Plaintiff from an a ssault occurring off o f its premises.

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                Thereafter, in December 2000, the Trial Court entered an Order continuing the
hearing on Defendants’ motion to dismiss until Plaintiff “has had the opportunity to take discovery
on the issue of whether [Defendants] had any control over the property upon which the attack . . .
occurred.” Approximately six months later, in June 2001, Defendants filed a Renewed Motion to
Dismiss (“Motion to Dismiss”). Defendants, in support of their motion, attached a copy of their
responses to Plaintiff’s discovery requests. Defendants contended their discovery responses showed
they had no control over the vacant parking lot and that this lot was “simply adjacent land upon
which patrons chose to park when [Silverado’s] parking lot was full.” Defendants argued they owed
no duty to protect Plaintiff from Davis’ assault. In addition, Defendants’ discovery responses
showed that while they were aware, at the time of the attack, that Silverado’s customers used the
vacant parking lot, Defendants neither owned the lot nor had any agreement with the owners of the
lot regarding Silverado’s customers’ use of the lot.

                 The Trial Court, in its Order (“Final Order”), granted Defendants’ Motion to Dismiss
but did not state the specific reasons for granting Defendants’ motion. The Final Order provided that
“this Order is deemed a final Order pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure in that there exists no just reason for delay.” Plaintiff appeals the Final Order.

                                            Discussion

               Although not exactly stated as such, Plaintiff raises one issue on appeal for this
Court’s consideration: whether the Trial Court erred in granting Defendants’ Motion to Dismiss
because, according to Plaintiff, Defendants owed a duty to Plaintiff to protect him from the assault
by Davis. Defendants, of course, do not dispute the Trial Court’s grant of their Motion to Dismiss
and raise no further issues on appeal.

               While Defendants’ dispositive motion in this matter was captioned “Motion to
Dismiss” and was based upon Tenn. R. Civ. P. 12.02(6), it must be treated as a motion for summary
judgment because matters outside the pleadings, Plaintiff’s affidavit and Defendants’ discovery
responses, were presented to the Trial Court for its consideration. See Tenn. R. Civ. P. 12.02.
Accordingly, we will use the standard of review applicable to Tenn. R. Civ. P. 56 motions for
summary judgment in our determination of this appeal. Our Supreme Court outlined the standard
of review of a motion for summary judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn.
2000):

               The standards governing an appellate court's review of a motion for summary
               judgment are well settled. Since our inquiry involves purely a question of
               law, no presumption of correctness attaches to the lower court's judgment,
               and our task is confined to reviewing the record to determine whether the
               requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown,
               955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South,
               816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04
               provides that summary judgment is appropriate where: (1) there is no genuine

                                                -3-
              issue with regard to the material facts relevant to the claim or defense
              contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993);
              and (2) the moving party is entitled to a judgment as a matter of law on the
              undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555,
              559 (Tenn.1993). The moving party has the burden of proving that its motion
              satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
              523, 524 (Tenn.1991). When the party seeking summary judgment makes a
              properly supported motion, the burden shifts to the nonmoving party to set
              forth specific facts establishing the existence of disputed, material facts
              which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at
              215.

              To properly support its motion, the moving party must either affirmatively
              negate an essential element of the non-moving party's claim or conclusively
              establish an affirmative defense. See McCarley v. West Quality Food Serv.,
              960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426
              (Tenn.1997). If the moving party fails to negate a claimed basis for the suit,
              the non-moving party's burden to produce evidence establishing the existence
              of a genuine issue for trial is not triggered and the motion for summary
              judgment must fail. See McCarley v. West Quality Food Serv., 960 S.W.2d
              at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party
              successfully negates a claimed basis for the action, the non-moving party may
              not simply rest upon the pleadings, but must offer proof to establish the
              existence of the essential elements of the claim.

              The standards governing the assessment of evidence in the summary
              judgment context are also well established. Courts must view the evidence
              in the light most favorable to the nonmoving party and must also draw all
              reasonable inferences in the nonmoving party's favor. See Robinson v. Omer,
              952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant
              a summary judgment only when both the facts and the inferences to be drawn
              from the facts permit a reasonable person to reach only one conclusion. See
              McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900
              S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89.

              Plaintiff’s lawsuit against Defendants is based upon the claim that Defendants were
negligent. To establish a claim for negligence, a plaintiff must prove the following elements:

              (1) a duty of care owed by the defendant to the plaintiff;




                                               -4-
               (2) conduct by the defendant falling below the applicable standard of
               care that amounts to a breach of that duty;

               (3) an injury or loss;

               (4) causation in fact; and

               (5) proximate, or legal, causation. . . .

Staples, 15 S.W.3d at 89.

                The record on appeal shows the parties do not dispute the material facts. The
controlling issue in this matter is whether Defendants, as the owners of Silverado’s, had a duty to
protect Plaintiff from an assault by Davis, a non-employee, which occurred on a parking lot neither
owned nor controlled by Defendants after Plaintiff and Davis left Silverado’s premises. The issue
of whether a defendant owes a duty of care to a plaintiff is a question of law. Id. at 89. Accordingly,
in our de novo review, we must determine only whether Defendants are entitled to judgment as a
matter of law. Id. at 88.

               Our Supreme Court discussed what duty, if any, a defendant property owner or
occupier owes its customers to protect them from criminal acts occurring on the defendant’s
premises, in pertinent part, as follows:

               “A business ordinarily has no duty to protect customers from the
               criminal acts of third parties which occur on its premises. The
               business is not to be regarded as the insurer of the safety of its
               customers, and it has no absolute duty to implement security
               measures for the protection of its customers. However, a duty to take
               reasonable steps to protect customers arises if the business knows, or
               has reason to know, either from what has been or should have been
               observed or from past experience, that criminal acts against its
               customers on its premises are reasonably foreseeable, either generally
               or at some particular time.”

Id. at 89 (quoting McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 902 (Tenn. 1995)
(emphasis added)).

               The Court in Staples v. CBL & Associates, also discussed the concept of “duty” as
follows:

               Duty is the legal obligation a defendant owes to a plaintiff to conform
               to a reasonable person standard of care in order to protect against
               unreasonable risks of harm. . . . In assessing whether a duty is owed

                                                  -5-
                  in a particular case, courts must apply a balancing approach, based
                  upon principles of fairness to identify whether the risk to the plaintiff
                  was unreasonable. . . . This Court has stated that a “risk is
                  unreasonable and gives rise to a duty to act with due care if the
                  foreseeable probability and gravity of harm posed by defendant’s
                  conduct outweigh the burden upon defendant to engage in alternative
                  conduct that would have prevented the harm.”

Id. (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Rice v. Sabir, 979 S.W.2d 305,
308 (Tenn. 1998)).

                Plaintiff, on appeal, argues the Trial Court erred in holding that Defendants had no
duty to protect Plaintiff from the assault because Defendants neither owned nor controlled the vacant
parking lot where the assault occurred. Citing Staples v. CBL & Associates, Plaintiff contends
Defendants had a duty to protect him from Davis’ assault since the risk posed to Plaintiff, a
Silverado’s patron, was unreasonable and because the attack was foreseeable to Defendants.
Plaintiff argues Davis’ assault of him was foreseeable to Defendants because some of Silverado’s
security employees witnessed the verbal altercation between Plaintiff and Davis which occurred on
Silverado’s premises. Plaintiff also contends, and Defendants do not dispute this contention, that
Defendants knew Silverado’s patrons were using the vacant parking lot for overflow parking.

                The record shows that while Defendants were aware Silverado’s customers used the
vacant parking lot where Davis’ assault of Plaintiff occurred, Defendants neither owned nor
controlled the lot, and Plaintiff does not dispute this material fact. Plaintiff, in support of his
argument on appeal, cites no Tennessee cases, nor has our research found any, which hold that a
property owner or operator owes a duty to its customers to protect them from criminal conduct
occurring off defendant’s premises.3 In fact, the cases cited by Plaintiff in support of his argument
on appeal, including Staples v. CBL & Associates, set forth the standard for determining whether a
premises owner or operator has a duty to protect its customers from criminal conduct occurring on
its premises. Id. at 89-91. Applying the facts and circumstances of this matter to current Tennessee
law, any duty of Silverado’s to protect Plaintiff from criminal conduct ended when Plaintiff left
Silverado’s premises. A “‘business is not to be regarded as the insurer of the safety of its customers,
and it has no absolute duty to implement security measures for the protection of its customers.’” Id.
at 90 (quoting McClung v. Delta Square Ltd. P’ship, 937 S.W.2d at 902). We decline to extend the
duty owed by a premises owner or operator to its customers to include protection from criminal acts
occurring off the defendant business’ property. Accordingly, because Defendants owed no duty to
protect Plaintiff from an assault occurring across the street from their premises in a vacant parking


         3
            We note Tennessee courts have recognized “that under certain circumstances, an owner or occupier of
premises may owe a duty to persons on a public thoroughfare adjacent to the premises.” Estes v. Pe els, No. E1999-
00582-COA-R3-CV, 2000 Tenn. App. LEXIS 641, at * 17 (Tenn. Ct. App. Sept. 21, 2 000), no appl. perm. app. filed,
(citing De Ark v. Nashville Stone Setting Corp., 279 S.W.2 d 518 (Te nn. Ct. App. 1 955)). These cases, however, provide
no support for Plaintiff’s position given the facts of this case.

                                                          -6-
lot neither owned nor operated nor controlled by Defendants, we hold Defendants were entitled to
judgment as a matter of law, and, therefore, find no error by the Trial Court.


                                           Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The costs on appeal are assessed against the Appellant, K. Mahendra
Chowbay, and his surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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