                                                                                                     04/14/2020
                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                    January 15, 2020 Session

               CHARLENE LYON v. CASTLE RETAIL GROUP, LLC

                      Appeal from the Circuit Court for Shelby County
                      No. CT-002803-15 Robert Samual Weiss, Judge
                         ___________________________________

                               No. W2019-00405-COA-R3-CV
                           ___________________________________


This appeal involves a trip and fall premises liability case filed against a supermarket by
one of its customers. The trial court granted summary judgment to the defendant because
the plaintiff’s evidence did not tend to show the defendant had either actual or
constructive notice of a dangerous condition that would give rise to a duty to either warn
the plaintiff of the condition or remove the condition. For the following reasons, we
agree that the defendant lacked actual or constructive notice of a dangerous condition in
its store, and affirm the trial court’s award of summary judgment.

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

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Charlene Lyon, Memphis, Tennessee, Pro Se.

Tracy Aaron Overstreet and Jeffrey E. Nicoson, Memphis, Tennessee, for the appellee,
Castle Retail Group, LLC.


                                              OPINION

                              I.      FACTS & PROCEDURAL HISTORY

       Plaintiff Charlene Lyon filed this lawsuit on July 2, 2015, against Castle Retail
Group, LLC (“Defendant” or “CRG”), a limited liability company, with its principal
place of business located in Memphis, Tennessee; and “John Doe.”1 Defendant filed its
       1
           According to the complaint, “John Doe” was added as a fictitious name due to Plaintiff being
answer on August 10, 2015. Plaintiff tripped and fell at Defendant’s grocery store at
1620 Madison Avenue in Memphis, Tennessee on July 2, 2014, giving rise to this suit.

       On the date in question, Plaintiff entered Defendant’s store to shop for grocery
items, accompanied by Muhammed Madyun. While in the checkout aisle, Plaintiff
reached down to retrieve an item and tripped and fell. As a result, Plaintiff sustained
personal injuries to her back, hips, and knees. She was admitted to a local emergency
room shortly after the accident, and also incurred other medical expenses. Plaintiff
claims her right foot was caught on a piece of metal which she did not see protruding
from the base of a magazine display rack in the checkout area. To Defendant’s
knowledge, this was the first trip and fall in its store allegedly caused by a magazine rack.

       Plaintiff’s fall was recorded in an accident report completed by an employee of the
store. Subsequent investigation of the scene showed the floor was dry and revealed no
other item in the aisleway that may have caused Plaintiff’s fall. Mark Gatlin, Vice
President of CRG and the store’s manager, stated that the magazine display rack is one of
many placed at checkout areas of the store. Mr. Gatlin also stated that the racks are
“virtually immobile,” weighing between 500 and 600 pounds, and act as fixtures in the
store. Mr. Gatlin further stated that Defendant’s employees inspected the magazine rack
after Plaintiff’s fall and found no dangerous or defective conditions.

       After Plaintiff was discharged from the emergency room (and on the same day of
the injury), Mr. Madyun returned to the store and photographed the base of the display
rack where Plaintiff fell. Plaintiff claims that Mr. Madyun’s photograph shows the metal
protruding into the aisle as a trip hazard. At various times in the years following
Plaintiff’s accident, Mr. Madyun took additional photographs of the same display rack
and others inside the store. Plaintiff claims the photographs collectively show that
Defendant conducted its business in a manner that was likely to cause injury due to the
“hazardous condition” of the various display racks throughout the years.

       Defendant filed a motion for summary judgment on December 18, 2018, claiming
it had no actual or constructive notice of the magazine display rack’s potential to cause
injury. Defendant claimed Plaintiff’s injury was not foreseeable, and her claim,
therefore, failed as a matter of law. Plaintiff responded on January 15, 2019, submitting
her own affidavit, an affidavit of Mr. Madyun, and nine photographs taken by Mr.
Madyun to support her claim. The trial court heard the motion on January 18, 2019. At
the conclusion of the proceeding, the court granted Defendant’s motion for summary

unaware of the party’s true identity, and the complaint was to be amended at a later time when Plaintiff
ascertained the identity of the party through discovery. Although the case was pending for over three
years, the identity of John Doe was never ascertained. Plaintiff never amended her complaint, which
simply assigned liability to “agents, servants and/or employees” of Defendant. As a result, on January 28,
2020, the trial court entered an order dismissing “John Doe” as a defendant, denying Plaintiff’s claim for
damages against the party. Therefore, we have only one defendant for the purposes of this appeal.
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judgment and dismissed Plaintiff’s claim. The court found that Defendant had no actual
or constructive notice of a dangerous condition near the magazine display rack, negating
an essential element of Plaintiff’s claim. On January 31, 2019, the trial court entered a
written order memorializing its oral ruling. Plaintiff timely appealed.

                                  II.     ISSUE PRESENTED

       Plaintiff raises one issue on appeal, which we summarize as: whether the trial
court improperly granted summary judgment for Defendant due to Defendant having had
constructive notice of a dangerous condition where Plaintiff tripped and fell.

                                III.    STANDARD OF REVIEW

        A trial court’s decision on a motion for summary judgment is reviewed de novo
with no presumption of correctness. Kershaw v. Levy, 583 S.W.3d 544, 547 (Tenn. 2019)
(citing Beard v. Branson, 528 S.W.3d 487, 494–95 (Tenn. 2017)). On appeal, we must
“make a fresh determination about whether the requirements of Rule 56 have been met.”
TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn. 2019) (citing Rye v.
Women’s Care Ctr. of Memphis, 477 S.W.3d 235, 250 (Tenn. 2015)). Summary
judgment is appropriate “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.” Tenn. R. Civ. P. 56.04.

        A moving party who does not bear the burden of proof at trial can meet 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.” TWB Architects, Inc., 578 S.W.3d at 887 (quoting Rye, 477 S.W.3d at 264).
Then, “[t]he 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. at 889 (quoting Rye, 477 S.W.3d at 265). We accept the evidence presented by the
nonmoving party as true, allow all reasonable inferences in its favor, and resolve any
doubts about the existence of a genuine issue of material fact in its favor. Id. at 887.

      Additionally, Plaintiff has been a pro se litigant for the entirety of this case.
Tennessee courts afford pro se litigants a certain amount of leeway in trying their cases
while maintaining fairness to the opposing party. Accordingly:

               Parties who decide to represent themselves are entitled to fair and
       equal treatment by the courts. The courts should take into account that
       many pro se litigants have no legal training and little familiarity with the
       judicial system. However, the courts must also be mindful of the boundary
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       between fairness to a pro se litigant and unfairness to the pro se litigant’s
       adversary. Thus, the courts must not excuse pro se litigants from
       complying with the same substantive and procedural rules that represented
       parties are expected to observe.

Young v. Barrow, 130 S.W.3d 59, 62–63 (Tenn. Ct. App. 2003) (citations omitted). See
also Kondaur Capital Corp. v. Finley, No. W2019-00143-COA-R3-CV, 2019 WL
5067195, at *2 (Tenn. Ct. App. Oct. 9, 2019); Vandergriff v. ParkRidge E. Hosp., 482
S.W.3d 545, 551 (Tenn. Ct. App. 2015).

                                IV.    DISCUSSION

       A premises liability claim is one of negligence, requiring the plaintiff to prove five
essential elements: “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct
by the defendant falling below the standard of care amounting to a breach of the duty; (3)
an injury or loss; (4) causation in fact; and (5) proximate causation.” Rice v. Sabir, 979
S.W.2d 305, 308 (Tenn. 1998) (citing Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993)). Additionally, in a slip or trip and fall case, the plaintiff must show the dangerous
condition was created by the defendant or its agent or “if the condition was created by
someone other than the owner, operator, or [its] agent, that the owner or operator had
actual or constructive notice that the condition existed prior to the accident.” Parker v.
Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014) (quoting Blair v. W.
Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004)).

       A defendant has a duty to licensees and invitees on its premises to exercise
reasonable care to remove or warn against dangerous conditions on the premises “of
which [the defendant] was aware or should have been aware through the exercise of
reasonable diligence.” Rice, 979 S.W.2d at 308 (citing Blair v. Campbell, 924 S.W.2d
75, 76 (Tenn. 1996); Eaton v. McLain, 891 S.W.2d 587, 593–94 (Tenn. 1994)).
However, “[b]usiness proprietors are not insurers of their patrons’ safety.” Blair v. W.
Town Mall, 130 S.W.3d at 764; see also Hunter v. Kroger Ltd. P’ship I, No. W2017-
01789-COA-R3-CV, 2018 WL 5793562, at *3 (Tenn. Ct. App. Nov. 5, 2018). Meaning,
“[t]he duty imposed on the premises owner or occupier . . . does not include the
responsibility to remove or warn against ‘conditions from which no unreasonable risk
was to be anticipated, or from those which the occupier neither knew about nor could
have discovered with reasonable care.’” Rice, 979 S.W.2d at 309 (quoting W. Page
Keeton, Prosser & Keeton on Torts, § 61 at 426 (5th ed. 1984)). Unless the defendant
has actual or constructive notice of a dangerous condition on its premises, it does not owe
a duty to warn of or remove the dangerous condition. See Blair, 130 S.W.3d at 764.

       Actual notice is defined as “knowledge of facts and circumstances sufficiently
pertinent in character to enable reasonably cautious and prudent persons to investigate
and ascertain as to the ultimate facts.” Kirby v. Macon Cty., 892 S.W.2d 403, 409 (Tenn.
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1994) (quoting Tex. Co. v. Aycock, 227 S.W.2d 41, 46 (Tenn. 1950)). Constructive
notice is “information or knowledge of a fact imputed by law to a person (although he
may not actually have it) because he could have discovered the fact by proper diligence,
and his situation was such as to cast upon him the duty of inquiring into it.” Parker, 446
S.W.3d at 351 (quoting Hawks v. City of Westmoreland, 960 S.W.2d 10, 15 (Tenn.
1997)).

        As this court has previously explained, there are three possible avenues for a
plaintiff to prove constructive notice:

       First, a plaintiff may demonstrate that the owner or operator of the premises
       caused or created the condition. See Sanders v. State, 783 S.W.2d 948, 951
       (Tenn. Ct. App. 1989). Second, if a third party caused or created the
       dangerous condition, a plaintiff may prove constructive notice by evidence
       that the condition “existed for a length of time” that the owner/occupier “in
       the exercise of reasonable care, should have become aware of that
       condition.” Elkins v. Hawkins County, No. E2004-02184-COA-R3-CV,
       2005 WL 1183150, at *4 (Tenn. Ct. App. May 19, 2005). . . . [Third,] by
       proving that “a pattern of conduct, recurring incident, or general continuing
       condition” caused the dangerous condition. Blair v. West Town Mall, 130
       S.W.3d 761, 765–66 (Tenn. 2004).

Merrell v. City of Memphis, No. W2013-00948-COA-R3-CV, 2014 WL 173411, at *5
(Tenn. Ct. App. Jan. 16, 2014). Without facts that indicate there is a potential for future
harm, constructive notice cannot be assigned, and a potential injury is unforeseeable. See
Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998), overruled on other grounds
by West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545 (Tenn. 2005); Rice, 979 S.W.2d at
309 (stating “foreseeability is the test of negligence”) (quoting Doe v. Linder Constr. Co.,
845 S.W.2d 173, 178 (Tenn. 1992)); Jobe v. Goodwill Indus. of Middle Tenn., Inc., No.
M2017-02299-COA-R3-CV, 2018 WL 2671613, at *2 (Tenn. Ct. App. June 4, 2018)
(“Negligence [cannot] be presumed by the mere happening of an injury or accident.”).

       There is no allegation that Defendant had actual knowledge of metal protruding
out from the magazine display rack. Also, there is no evidence tending to show
Defendant’s employees caused the piece of metal to protrude outward. Therefore,
constructive notice is the critical issue in this case. Plaintiff argues two forms of
constructive notice are applicable to show Defendant had a duty to warn of or remove the
protruding metal. First, Plaintiff argues that the display rack’s dangerous condition
existed for such a length of time that Defendant, in exercising reasonable care, should
have noticed it. Second, Plaintiff argues that all of the magazine display racks in
Defendant’s store collectively show a “pattern of conduct” or “general continuing
condition” that created a dangerous condition. Assuming arguendo Plaintiff’s trip and
fall was the result of a dangerous condition, Defendant asserts it lacked constructive
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notice that required it to warn of or remove the protruding metal.

        Plaintiff has failed to present evidence that tends to show how long the metal on
the display rack had been protruding prior to her fall. All of Plaintiff’s photographs of
the scene were taken after her fall. Also, Defendant is unaware of any other person prior
to Plaintiff having tripped and fallen due to this display rack. There is no assertion the
floor was wet or that other items were present as potential trip hazards. Plaintiff merely
asserts there was “dirt and waxy residue” on the floor near the protruding piece of metal.2
Without an approximate timeframe establishing how long the metal stuck out into the
aisle, Plaintiff cannot establish that Defendant had constructive notice of it protruding as
a dangerous condition. See Hardesty v. Serv. Merch. Co., 953 S.W.2d 678, 682 (Tenn.
Ct. App. 1997) (stating “constructive knowledge cannot be established without some
showing of the length of time of the dangerous condition had existed”) (citing Self v.
Wal–Mart Stores, Inc., 885 F.2d 336, 338 (6th Cir. 1989)).

        Plaintiff’s inability to show a timeframe prior to her accident makes her case
analogous to the factual situation presented to this court in Hardesty v. Serv. Merch. Co..
In Hardesty, Ms. Hardesty tripped over a bed rail while shopping at the defendant’s
department store, causing her to fall and fracture her hip. 953 S.W.2d at 680, 682. The
plaintiffs argued that the store had constructive notice of the bed rail, evidenced by the
rail remaining in the aisle after Ms. Hardesty’s fall. Id. at 682. The court responded,
“[w]hile [Ms. Hardesty’s] testimony that the bed rail was protruding into the aisle for
some 24 hours after the accident would be persuasive as to notice for a subsequent
accident, we do not find that it has any bearing on the facts surrounding the instant
cause.” Id. at 682–83 (emphasis added). The court found a prima facie case of
negligence could not be found because the plaintiff failed to present “proof as to how
long before the accident the bed rail had protruded into the aisle.” Id. at 683 (stating “a
plaintiff must submit proof as to how long the allegedly dangerous condition existed prior
to the accident”). Similarly, Plaintiff’s claims that the piece of metal remained
protruding into the aisle after she fell only establish constructive notice for subsequent
accidents in Defendant’s store.

       Likewise, Plaintiff has not presented evidence tending to show “a pattern of
conduct, a recurring incident, or a general continuing condition” that establishes
constructive notice of the protruding metal. See Blair, 130 S.W.3d at 765–66; Merrell,
2014 WL 173411, at *5. Plaintiff relies on the facts of Blair v. W. Town Mall to support
her claim. In Blair, the plaintiff slipped and fell on oil slicks in the parking lot of the
defendant’s mall. Blair, 130 S.W.3d at 762. The plaintiff claimed it was foreseeable that
the buses and other cars in the parking lot would occasionally leak engine fluids and

        2
           Plaintiff makes this assertion in arguing Defendant failed to properly inspect and remedy the
aisle’s conditions. As discussed herein, our decision does not reach a need to discuss whether Defendant
failed to properly inspect the aisle’s conditions.
                                                 -6-
create a slick surface. Id. at 763. Reversing the trial court’s grant of summary judgment,
our supreme court affirmatively established the “pattern of conduct, recurring incident, or
a general or continuing condition” approach to constructive notice, as stated in Merrell.
Id. at 765–66. Subsequently, though, the court stated it “express[ed] no opinion as to
whether [West Town Mall] . . . had constructive notice of the dangerous condition
alleged.” Id. at 767. While this approach is available to prove constructive notice, the
Blair decision offers no support for Plaintiff’s claim under the facts of this case.

       Plaintiff also cites Simmons v. Sears Roebuck & Co., 713 S.W.2d 640 (Tenn.
1986) to support her claim. In Simmons, the plaintiff fell walking down a flight of stairs
in the defendant’s store. Id. at 640–41. The plaintiff claimed that his fall was likely
caused by the debris of food-related items from the in-store concession stand that
accumulated on the steps. Id. at 641. Unlike the piece of metal on CRG’s magazine
stand, in Simmons there was no dispute as to debris accumulating on the stairs. See id. at
641–42. Further, the defendant’s employees traversed the same stairs throughout the day,
putting them on notice of the condition and need to remove the debris. Id. at 642. In
contrast, there is no evidence to suggest Defendant’s employees regularly walked through
the checkout aisle where the metal protruded, and there are no other facts that indicate it
was clearly visible yet ignored by employees.3

        Plaintiff’s trip and fall appears to be a random occurrence, which is insufficient to
establish constructive notice. Katz v. Sports Auth. of Metro. Gov’t of Nashville &
Davidson Cty., No. M2016-01874-COA-R3-CV, 2017 WL 3741346, at *5 (Tenn. Ct.
App. Aug. 29, 2017). The plaintiff in Katz sustained a slip and fall injury due to liquid on
the floor of a concert arena. Id. at *1. Ms. Katz pointed to other wet-spot slips at the
arena that day to show a “pattern of conduct, a recurring incident, or a general or
continuing condition” that established constructive notice of the dangerous condition. Id.
at *3 (quoting Parker, 446 S.W.3d at 351–52). This court affirmed the grant of summary
judgment for the defendant, stating Ms. Katz failed to present “evidence that the wet
spills in the arena where she fell occurred with such regularity that the dangerous
condition was reasonably foreseeable.” Id. at *5. We reach the same conclusion in the
present case.


        3
          Plaintiff also argues that McCarley v. W. Quality Food Serv., 960 S.W.2d 585 (Tenn. 1998), and
Johnson v. Dupree Oil Co., No. E2004-01433-COA-R3-CV, 2005 WL 1981799 (Tenn. Ct. App. Aug. 16,
2005), support the denial of summary judgment in this case. However, both cases are distinguishable.
McCarley did not involve a slip and fall; rather, the plaintiff brought suit after he contracted food
poisoning. McCarley, 960 S.W.2d at 587. It was undisputed the defendant owed a duty to provide food
free from contamination. Id. at 588 n.3. Instead, the issues on summary judgment were breach of
defendant’s duty and the cause of the plaintiff’s injuries. Id. at 588. In Johnson, the plaintiff tripped over
a raised portion of asphalt in the defendant’s parking lot. Johnson, 2005 WL 1981799, at *7. There was
no question as to whether the store had knowledge of the pavement’s condition. Id. Therefore, neither
case involved an issue of notice.
                                                    -7-
        There is no evidence that shows Defendant’s use of its magazine display racks was
a “pattern of conduct, a recurring incident, or a general or continuing condition”
sufficient to put Defendant on constructive notice of a dangerous condition. Again,
Defendant was not aware of, and there is no evidence tending to show, previous trips and
falls due to the magazine display racks in its store. Plaintiff’s assertions that “bumper
guards” should have been installed on the magazine racks to prevent similar falls does not
speak to whether Defendant had a duty to take such remedial measures. Plaintiff’s
photos of the magazine racks in the years following her accident that show a “continuous
hazardous condition” have no bearing on the condition of the magazine rack she tripped
on nor do they aid in showing that her injury was foreseeable. See Blair, 130 S.W.3d at
764 (stating unless the defendant or its agents created the condition, notice must “exist[]
prior to the accident”). While it is unfortunate Plaintiff suffered injuries as a result of her
fall, a single accident, on its own, does not establish foreseeability in a negligence case.
See, e.g., Rice, 979 S.W.2d at 309; Jobe, 2018 WL 2671613, at *2.

        For these reasons, we agree with the trial court’s grant of summary judgment for
Defendant. Defendant has presented sufficient evidence that shows it did not have actual
or constructive notice that the magazine display rack was a dangerous condition. As a
result, Defendant negated duty as an essential element of Plaintiff’s claim. In response,
Plaintiff has failed to produce evidence that shows Defendant did in fact have notice of a
dangerous condition. See Rye, 477 S.W.3d at 264–65 (discussing a nonmovant’s burden
at the summary judgment stage). Therefore, lacking an essential element to her
negligence action, Plaintiff’s claim fails.

                                V.      CONCLUSION

       For the aforementioned reasons, the judgment of the circuit court is hereby
affirmed, and this cause is remanded for further proceedings consistent with this opinion.
Costs of this appeal are taxed to appellant, Charlene Lyon, for which execution may issue
if necessary.



                                                     s/ Carma Dennis McGee
                                                   CARMA DENNIS MCGEE, JUDGE




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