                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                February 16, 2016 Session


    THE ESTATE OF BLAKE B. CUNNINGHAM, BY AND THROUGH
    BARBARA CUNNINGHAM v. EPSTEIN ENTERPRISES LLC, ET AL.

                   Appeal from the Circuit Court for Shelby County
                    No. CT00373413 Rhynette N. Hurd, Judge

                          ________________________________

                 No. W2015-00498-COA-R3-CV – Filed June 30, 2016
                       _________________________________


In this premises liability case, the plaintiff appeals from the trial court‟s grant of summary
judgment in favor of the defendants, the manager and owner of an apartment complex. The
trial court concluded that the defendants owed no duty to a security guard, who was fatally
shot while working at the apartment complex. Although a premises owner generally owes a
duty to provide independent contractors with a safe workplace, under the facts of this case,
we conclude that the defendants owed no duty to protect the security guard from the criminal
acts that resulted in the loss of his life. Therefore, we affirm the grant of summary judgment
in favor of the defendants. Additionally, we affirm the award of discretionary costs to the
defendants.


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

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which ARNOLD B. GOLDIN, J.,
joined. J. STEVEN STAFFORD, P.J.,W.S., filed a concurring opinion.
Linda Lynn Walls Holmes, Memphis, Tennessee, for the appellant, Barbara Cunningham.

Lacey Adair Bishop, Richard Glassman and Whitney Boshers Hayes, Memphis, Tennessee,
for the appellees, Epstein Enterprises, LLC, and Louis and William Epstein, LP.
                                              OPINION

                        I. FACTUAL AND PROCEDURAL BACKGROUND
       Tragically, on October 14, 2012, Blake B. Cunningham, an armed security guard, died
while providing security at the Cherry Crest Apartments in Memphis, Tennessee. Criminals,
apparently fleeing from a nearby apartment complex, shot and killed Mr. Cunningham. As
described in discovery in the subsequent premises liability case:
        Shots were fired at Apartment Complex directly across from Cherry Crest.
        Shots at [the] security officer there. Four (4) people fled across the street to
        Cherry Crest. Entered property as there was no fence or central entrance. Two
        (2) people ran through the courtyard either firing a gun or started firing a gun
        at Mr. Cunningham in the darkened area of the courtyard. One intruder was
        shot in the head, Mr. Cunningham received multiple gunshots to the chest.
       At the time of his death, Mr. Cunningham worked for Allegiance Security Group,
LLC. Allegiance provided security at Cherry Crest Apartments under a Service Agreement
with the apartment manager, Epstein Enterprises, LLC. The Service Agreement included
language in which Allegiance disclaimed certain responsibilities. Specifically, the Service
Agreement provided as follows:
        It is specifically understood that [Allegiance] has not reviewed the security
        requirements of the Client, but is only providing the number of personnel,
        armed or unarmed, and hours, as requested by the Client. [Allegiance] makes
        no representations that the security requested is reasonably adequate for the
        Client‟s purposes. The Client is relying upon its own knowledge and
        investigation as to the number and type of security personnel required.

       On August 28, 2013, Barbara Cunningham,1 the widow of Mr. Cunningham, filed a
Complaint for Damages against, among others,2 Epstein Enterprises. Ms. Cunningham
alleged that Epstein Enterprises was negligent in failing to provide Mr. Cunningham with a
safe workplace and failing to act reasonably to prevent foreseeable acts. On October 28,
2013, Ms. Cunningham filed an amended complaint adding as a defendant the owner of the
apartment complex, Louis and William Epstein, LP (together with Epstein Enterprises, LLC,
the “Epstein Entities”), but largely reiterating the same substantive allegations and making
the same claims as the original complaint.


        1
         Specifically, the complaint provides that it was filed by the “Estate of Blake B. Cunningham,
Deceased, by and through Barbara Cunningham, individually.”
        2
          Ms. Cunningham also sued two individual defendants, Louis Epstein and William Epstein. However,
the parties later agreed to the dismissal of the claims against the individual defendants with prejudice.
                                                   2
       On November 5, 2013, the Epstein Entities filed their answer to the amended
complaint, generally denying the allegations. Also, the Epstein Entities alleged, among other
things, that Ms. Cunningham failed to state a claim upon which relief may be granted, that an
intervening or superseding act proximately caused the death of Mr. Cunningham, and that the
Epstein Entities could not have reasonably foreseen the incident. The parties conducted
discovery, and at least two depositions were taken, including that of Ms. Cunningham on July
28, 2014, and Samuel H. Epstein, a member of Epstein Enterprises, on January 22, 2015.
        On December 11, 2014, the Epstein Entities filed a motion for summary judgment. In
their motion, the Epstein Entities argued that they did not owe a duty of care to
Mr. Cunningham because the risk by which he was fatally injured was inherent in the
performance of his duties as a security guard. In support of their motion, the Epstein Entities
also listed the following facts that they contended were material and undisputed:
                     1. [Mr.] Cunningham, the deceased, was a licensed
              security guard employed by [Allegiance], beginning on April 28,
              2010.
                    2. At all material times, Epstein [Enterprises] contracted
              with Allegiance to provide security for Cherry Crest
              Apartments.
                    3. Epstein [Enterprises] managed Cherry Crest
              Apartments at the time of the incident.
                     4. Pursuant to the security contract, Allegiance provided
              an armed security guard who patrolled the premises of Cherry
              Crest Apartments.
                     5. The security contract provided that Allegiance was an
              independent contractor of Epstein Enterprises and that all
              security guards were employees of Allegiance.
                    6. At some point prior to October 14, 2012,
              Mr. Cunningham began providing security for Cherry Crest
              Apartments.
                    7. On October 14, 2012, Mr. Cunningham was
              performing his duties as a security guard on the premises of
              Cherry Crest Apartments.




                                              3
                     8. Mr. Cunningham was fatally shot during a
              confrontation with criminal actors during the performance of his
              duties at Cherry Crest Apartments.
                    9. Ms. Cunningham filed a workers‟ compensation claim,
              based on the subject incident, against [Allegiance], which was
              approved.
(citations to record omitted.)
       Ms. Cunningham filed a memorandum in response to the motion for summary
judgment on February 18, 2015. Significantly, Ms. Cunningham did not respond to each of
the undisputed material facts cited by the Epstein Entities. Instead, Ms. Cunningham stated
in her memorandum that she did “not dispute Defendants‟ Statement of Undisputed Facts in
support of its Motion but since this is a motion on a point of law only this does not matter for
the purposes of this Motion.” Consistent with this view, Ms. Cunningham also did not
submit additional facts she contended were material or file any countervailing affidavits.
        In her opposition, Ms. Cunningham argued that the Epstein Entities owed
Mr. Cunningham a duty as an employee of an independent contractor working within the
bounds of an invitation to perform work. According to Ms. Cunningham, the fact that her
husband was engaged in allegedly “inherently dangerous work” did not preclude the
existence of a duty on the part of the owners or occupiers of land. Ms. Cunningham asserted
that the Epstein Entities‟ argument that Mr. Cunningham purportedly assumed the risk spoke
to the element of breach, not duty. Ms. Cunningham further asserted that the criminal acts
against Mr. Cunningham were foreseeable, and therefore, the Epstein Entities owed a duty to
protect Mr. Cunningham from such acts. Finally, Ms. Cunningham claimed that the Epstein
Entities assumed a duty to Mr. Cunningham, without offering any basis for the claim.
       The trial court conducted a hearing on the Epstein Entities‟ motion for summary
judgment on February 27, 2015. In addition to arguing that the Epstein Entities owned her
late husband a duty, Ms. Cunningham orally requested additional time to conduct discovery.
At the conclusion of the hearing, the court announced that it was granting the Epstein
Entities‟ motion.
       On March 11, 2015, the trial court entered a written order concluding that the Epstein
Entities owed no duty to Mr. Cunningham to protect him from a risk inherent in the task for
which he was hired to perform. Additionally, the trial court found that additional discovery
was not warranted. The following day, March 12, 2015, Ms. Cunningham filed her notice of
appeal.
       Subsequently, on March 27, 2015, Ms. Cunningham filed her designation of the
record on appeal. The Epstein Enitites filed their own designation of the record on April 8,
2015, including the transcript of the hearing of the motion for summary judgment. On June
                                               4
5, 2015, Ms. Cunningham filed a Notice of the Inclusion of her Motion Pursuant to Rule 201
for Judicial Notice of Crime Scene Records in the record on appeal. On June 12, 2015,
Ms. Cunningham filed a Second Notice of Inclusion of Pleadings in the Designation of the
Record, referencing the Epstein Entities‟ March 31, 2015 motion for discretionary costs, an
affidavit of costs, an exhibit to the motion for discretionary costs, the Epstein Entities‟
response in opposition to Ms. Cunningham‟s first Notice of Inclusion, Ms. Cunningham‟s
Response to the motion for discretionary costs, the trial court‟s order granting in part and
denying in part the motion for discretionary costs, and the order denying Ms. Cunningham‟s
Motion Pursuant to Rule 201 for Judicial Notice of Crime Scene Records. Ultimately, the
trial court denied Ms. Cunningham‟s requests for inclusion of additional items in the record
on appeal beyond those set forth in her original designation.
                                         II. ANALYSIS
        Ms. Cunningham raises two issues on appeal. First, she argues that the trial court
erred in granting summary judgment to the Epstein Entities. Second, she argues that the
trial court erred in awarding discretionary costs to the Epstein Entities.
                                  A. STANDARD OF REVIEW
        Summary judgment may be granted only “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 The party moving for summary judgment has “the
burden of persuading the court that no genuine and material factual issues exist and that it is,
therefore, entitled to judgment as a matter of law.” Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.
1993). If the moving party satisfies its burden, “the nonmoving party must then demonstrate,
by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a
trial.” Id. Our Supreme Court recently explained the burden-shifting analysis to be
employed by courts tasked with deciding a motion for summary judgment when the movant
does not bear the burden of proof at trial:
              [I]n Tennessee, as in the federal system, when the moving party
              does not bear the burden of proof at trial, 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. We reiterate that a moving
              party seeking summary judgment by attacking the nonmoving
              party‟s evidence must do more than make a conclusory assertion
              that summary judgment is appropriate on this basis. Rather,
              Tennessee Rule 56.03 requires the moving party to support its

                                               5
              motion with “a separate concise statement of material facts as to
              which the moving party contends there is no genuine issue for
              trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
              separate, numbered paragraph and supported by a specific
              citation to the record.” Id. When such a motion is made, any
              party opposing summary judgment must file a response to each
              fact set forth by the movant in the manner provided in
              Tennessee Rule 56.03. “[W]hen a motion for summary judgment
              is made [and] . . . supported as provided in [Tennessee Rule
              56],” to survive summary judgment, the nonmoving party “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 Tennessee Rule 56, “set forth specific facts” at the
              summary judgment stage “showing that there is a genuine issue
              for trial.” Tenn. R. Civ. P. 56.06.
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264-65 (Tenn. 2015), cert.
denied, 84 U.S.L.W. 3547 (U.S. May 23, 2016).
       A trial court‟s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); Blair
v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary judgment
decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at 763.
Accordingly, we must review the record de novo and make a fresh determination of whether
the requirements of Tennessee Rule of Civil Procedure 56 have been met. Eadie v. Complete
Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at 763.
                                      B. DUTY OF CARE
       On summary judgment, the Epstein Entities argued and the trial court agreed that there
was no legal duty to protect Mr. Cunningham from the violent criminal acts that resulted in
his death. A claim for negligence cannot succeed in the absence of any of the following
elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below
the applicable 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. Green v. Roberts, 398 S.W.3d 172, 176-
77 (Tenn. Ct. App. 2012) (citing Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993)).
Duty, the first element of the claim, is “the legal obligation owed by defendant to plaintiff to
conform to a reasonable person standard of care in order to protect against unreasonable risks
of harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). “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.

                                               6
       The existence or nonexistence of a duty owed by the defendant to the plaintiff is a
question of law for the court to decide. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993). In determining this issue, a court considers:
       “. . . whether, upon the facts in evidence, such a relation exists between the
       parties that the community will impose a legal obligation upon one for the
       benefit of others . . . . This is entirely a question of law to be determined by
       reference to the body of statutes, rules, principles and precedents which make
       up the law; and it must be determined only by the court. . . . A decision by the
       court that, upon any version of the facts, there is no duty, must necessarily
       result in judgment for the defendant. A decision that if certain facts are found
       to be true, a duty exists, leaves open the other questions now under
       consideration [concerning the existence of negligence].”

Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 859 (Tenn. 1985) (quoting Prosser and
Keeton, Torts, § 53, p. 356 (5th ed. 1984)). Although the existence of a duty remains a
question for the court, the nature or scope of the duty may depend on the resolution of a
factual issue. See Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 821 (Tenn. 2008)
(reversing grant of summary judgment based on genuine issues of material facts necessary to
determine the nature of the duty of care owed to the plaintiff). In deciding whether a duty
exists, the appellate court must take a fresh look at the record, “viewing the evidence in a
light most favorable to the . . . nonmoving party, allowing all reasonable inferences and
discarding all countervailing evidence.” Bradshaw, 854 S.W.2d at 870.
        Generally, “an owner or occupier of premises has a duty to exercise reasonable care
with regard to social guests or business invitees on the premises.” Rice v. Sabir, 979 S.W.2d
305, 308 (Tenn. 1998). Similarly, an “owner generally owes an independent contractor hired
to perform work on the premises a duty to provide a reasonably safe place in which to work.”
Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996). The “duty includes the specific
responsibility of either removing, or warning the independent contractor of, any hidden or
latent dangers on the property.” Id. However, our courts have acknowledged an exception to
the general duty to provide a reasonably safe place in which to work for dangers that “arise
from, or are intimately connected with, defects of the premises or of machinery or appliances
located thereon which the contractor has undertaken to repair.” Shell Oil Co. v. Blanks, 330
S.W.2d 569, 571 (Tenn. Ct. App. 1959). The exception recognizes “that one assumes the
risk of a known danger or of an undertaking which is inherently dangerous.” Id. For ease of
reference, we will refer to this exception to the general duty of property owners or occupiers
as the “independent contractor exception” or simply the “exception.”
        Although the exception was recognized by our Court in Shell Oil v. Blanks in the
Fifties, our Supreme Court only first applied the independent contractor exception in the
Nineties. See Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996). In Blair v. Campbell, an
independent contractor was injured while performing repair work on the defendant‟s roof.
                                            7
Id. at 76. In affirming a grant of summary judgment to the defendant, the court held that the
defendant owed no duty to the independent contractor because he was injured performing a
task which involved a risk inherent in the task he was contracted to perform. Id. at 77. As
the court explained:
              The application of Blanks to the case before us yields a clear result. It
       is undisputed that [the contractor] was specifically asked by [the premises
       owner] to repair the porch roof because it was leaking. Although [the
       contractor] was not told of the extent of the damage to the roof, and perhaps
       could not have known until he climbed the ladder, this is immaterial under
       Blanks: the repair contract itself is sufficient to put the contractor on notice of
       a defect in the premises, and it is the contractor‟s responsibility to determine
       the extent of the defect. The case before us obviously falls within the
       exception enunciated in Blanks; therefore, pursuant to that case the owner here
       was under no duty to provide a reasonably safe workplace to the contractor.
Id.
       Citing to Blair v. Campbell, the trial court in this case found that the injuries
Mr. Cunningham suffered were inherent in the work that he was contracted to perform as a
security guard. Therefore, the court concluded that the independent contractor exception
applied. That being the case, Ms. Cunningham could not establish the first element of a
negligence claim: a duty of care owed by the defendant to the plaintiff.
        Ms. Cunningham argues that the independent contractor exception should not apply.
She notes that, in Tennessee, the exception has been applied only to contracts for repair, and
therefore, the exception may not be extended to a security guard. Although we agree that the
exception has not been extended previously to security guards, “closely related” to the
independent contractor exception is “the rule that the owner is not liable for death or injury of
an independent contractor or one of his employees resulting from dangers which the
contractor, as an expert, has known, or as to which he and his employees „assumed the risk.‟”
E.H. Schopler, Annotation, Duty of Owner of Premises to Furnish Independent Contractor or
His Employee a Safe Place of Work, Where Contract is for Repairs, 31 A.L.R.2d 1375, 1382-
83 (1953) (footnotes omitted). This rule is quite similar to the “traditional” rule for premises
liability:
       as expressed in § 340 of Restatement, Torts (1934), and in the language used
       by the courts in many cases, a landowner is absolved from liability to entrants
       for harm caused by a dangerous condition on his land, of which the entrant
       knew and realized the risk, or which was obvious. This result was reached
       under various theories, such as lack of a duty of care on the landowner‟s part,
       or contributory negligence of, or assumption of risk by, the injured person.


                                               8
Ernest H. Schopler, Annotation, Modern Status of the Rule Absolving a Possessor of Land of
Liability to Those Coming Thereon for Harm Caused by Dangerous Physical Conditions of
which the Injured Party Knew and Realized the Risk, 35 A.L.R.3d 230, 236 (1971)
[hereinafter “Schopler, Modern Status”] (footnotes omitted).
        Courts in other jurisdictions, when confronting a similar factual situation to the case
before us, have applied some variation of the traditional rule to insulate land owners from
liability. See Hunley v. DuPont Auto, 341 F.3d 491, 503 (6th Cir. 2003) (“[The plaintiff
security guard] cannot [] recoup damages for harm that was allegedly caused by performing
the basic duty that he was hired to perform: encountering a stressful situation relating to the
[defendant‟s] security.”); Wallace v. Tri-State Motor Transit Co., 741 F.2d 375, 377 (11th
Cir. 1984) (No duty to security guard injured while manually opening gate where guard was
aware of danger); Atlanta Braves v. Leslie, 378 S.E.2d 133, 135 (Ga. Ct. App. 1989) (“Leslie,
by accepting employment as [a] security guard, assumed the risk that he would have such
encounters on the stadium premises. Leslie was, in effect, hired to provide an element of the
very security that he alleges was negligently lacking.”); Echazabal v. El Toro Meat Packing
Corp., 506 So.2d 1100, 1101 (Fla. Dist. Ct. App. 1987) (per curiam) (“[T]he employee of an
independent contractor cannot maintain a cause of action against a property owner where, as
here, the precise duty for which he was employed (guarding the premises) resulted in his
injury.”) (citing McCarty v. Dade Div. of Amer. Hosp. Supply, 360 So.2d 436 (Fla. Dist. Ct.
App. 1978)). However, in at least one instance, Tennessee has moved away from the
traditional rule and toward the modern trend. See Coln v. City of Savannah, 966 S.W.2d 34,
42 (Tenn. 1998) (“We agree with the rationale of the majority of courts which have limited or
restricted the traditional „open and obvious‟ rule in favor of the Restatement [(Second) of
Torts, § 343A] approach.”), modified by Cross v. City of Memphis, 20 S.W.3d 642 (Tenn.
2000).
        The “modern trend” represents a movement “toward a general rule, as expressed in
§ 343A(1) of Restatement, Torts 2d (1965), under which, notwithstanding an entrant‟s
knowledge of a dangerous condition or its obviousness, a landowner is liable for harm
resulting therefrom, if the landowner should anticipate the harm despite such knowledge or
obviousness.” Schopler, Modern Status, 35 A.L.R.3d at 236. In the words of our Supreme
Court, analyzing whether a legal duty arises requires “balancing foreseeability and gravity of
harm with feasibility and availability of alternatives that would have avoided the harm.”
Coln, 966 S.W.2d at 42; see also McCall, 913 S.W.2d at 153. “The principles stated in the
Restatement (Second) of Torts, § 343A[3] relate directly to foreseeability and facilitate
consideration of the duty issue.” Coln, 966 S.W.2d at 42.


        3
           The Restatement (Second) of Torts § 343A(1) states the rule as follows: “A possessor of land is not
liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is
known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness.” Restatement (Second) of Torts § 343A(1) (1965).
                                                       9
        Even though Tennessee has followed the modern trend and adopted the principles
stated in the Restatement (Second) of Torts, § 343A, the independent contractor exception
has not been supplanted. In 2007, our Supreme Court addressed the application of the
exception to a pair of electricians in Bennett v. Trevecca Nazarene University, 216 S.W.3d
293 (Tenn. 2007). The supreme court concluded that the independent contractor exception
did not apply to shield Trevecca Nazarene University from liability, although the electricians
were injured by a high-voltage electrical explosion while attempting to repair switchgear on
campus. Id. at 299. Based on the facts alleged by the electricians, the court went on to hold
that tort principles “impose[d] a duty of reasonable care on a premises owner to provide
accurate information to an independent contractor if the owner provides specific information
germane to the repair after engaging the contractor.” Id. at 300.
        We conclude that the independent contractor exception can be extended to security
guards. Yet, from Bennett v. Trevecca Nazarene University, we gather that, even though an
independent contractor faces a risk that is inherent in the job, the premises owner or occupier
is not, ipso facto, relieved of a duty of care. See id. (Sometimes the contract with the
independent contractor “is simply an inadequate framework in which to analyze whether a
premises owner has a duty of reasonable care.”) For example, the premises owner or
possessor may voluntarily assume a duty of care to the independent contractor. See id.
Ms. Cunningham claims that such is the case here. She argues the Service Agreement4
imposed an affirmative duty upon the Epstein Entities to determine the appropriate amount of
security measures necessary to ensure the safety of those that visit its premises, including
Mr. Cunningham.
       We disagree. As noted above, the Service Agreement included language in which
Allegiance disclaimed certain responsibilities. Specifically, the Service Agreement provided
that Allegiance “makes no representations that the security requested is reasonably adequate”
and that Epstein Enterprises, in contracting, was “relying upon its own knowledge and
investigation as to the number and type of security personnel required.” In context, the
language serves the purpose of disclaiming any contractual obligation on the part of
Allegiance to Epstein Enterprises to ensure a safe environment on the premises. Epstein
Enterprises does not contractually assume any legal duty to the employees of Allegiance, and
it makes no representations to Allegiance regarding the premises or criminal activity on or

        4
           In his concurrence, our learned colleague declines to address the impact of the Service Agreement on
the ground of waiver. In her memorandum in response to the motion for summary judgment, Ms. Cunningham
did not reference the Service Agreement as the basis for her claim of an assumed legal duty. While
Ms. Cunningham did not identify the Service Agreement in support of her argument below, we nonetheless
find it appropriate to consider the language of the Service Agreement in making the determination of whether a
duty existed. As the parties moving for summary judgment, the Epstein Entities had the burden of production,
and to satisfy that burden, they relied on the Service Agreement, referencing it in three of their nine statements
of material, undisputed facts. The Service Agreement is the framework in which they ask us to analyze
whether they have a duty of care. See Bennett, 216 S.W.3d at 300. The Epstein Entities also attached a copy
of the Service Agreement as an exhibit to their filings in support of their motion for summary judgment.
                                                       10
near the premises. Further, the Service Agreement does not specify what constitutes
“reasonably adequate” security or what security personnel is “required.”
        Ms. Cunningham counters that the security required by the Service Agreement is
dictated by what the Epstein Entities knew or should have known by an investigation of
security risks. Even if that were the case, we could not assume that the Epstein Entities‟ duty
extended to shielding Mr. Cunningham from every risk. Ms. Cunningham leaves us to
wonder what knowledge the Epstein Entities had or should have had of the risk of criminal
activity5 that she argues should have impacted “the number and type of security personnel
required.”
        Finally, Ms. Cunningham requests the opportunity to present proof of the Epstein
Entities‟ knowledge. She argues that the trial court improperly granted summary judgment
rather than permitting her to conduct additional discovery. As stated above, after the moving
party makes a properly supported motion, the burden shifts to the nonmoving party to
produce evidence of specific facts establishing that a genuine issue of material fact exists.
Rye, 477 S.W.3d at 265. The nonmoving party may satisfy this burden by:
                 (1) pointing to evidence establishing material factual disputes
                 that were over-looked or ignored by the moving party; (2)
                 rehabilitating the evidence attacked by the moving party; (3)
                 producing additional evidence establishing the existence of a
                 genuine issue for trial; or (4) submitting an affidavit explaining
                 the necessity for further discovery pursuant to Tenn. R. Civ. P.,
                 Rule 56.06.
Martin, 271 S.W.3d at 84 (citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588
(Tenn. 1998)). Here, Ms. Cunningham did not submit an affidavit as required by the rule,
nor did she state in response to the Epstein Entities‟ motion for summary judgment that she
could not present by affidavit facts essential to justify her opposition to the motion. See
Tenn. R. Civ. P. 56.07. Instead, she argued at oral argument that “discovery from the police
department” was necessary and explained that she needed “more time for more discovery” in
the form of police records and information about prior crimes on the premises. Under these
circumstances, where the party not moving for summary judgment has failed to comply with



        5
           Our concurring colleague states that Ms. Cunningham “admitted” that the Cherry Crest Apartments
were located “„in a high crime area‟ and that it was „foreseeable . . . that criminal attacks could occur due to
incidences of crime that ha[d] occurred at the [premises] and within close proximity[.]‟” There is no proof of
this in the record. Ms. Cunningham made such allegations in both her complaint and amended complaint, but
the Epstein Entities denied the allegations. Ms. Cunningham “may not rest upon the mere allegations” of her
complaint. See Tenn. R. Civ. P. 56.06.

                                                      11
the rule, we find no error in the trial court‟s denial of the request for a continuance to conduct
further discovery.6
                              C. AWARD OF DISCRETIONARY COSTS
       Ms. Cunningham argues that the award of discretionary costs to the Epstein Entities
was improper because summary judgment was improper. She does not challenge the
propriety of any of the costs requested by the Epstein Entities. Because we affirm the trial
court‟s grant of summary judgment, we affirm the trial court‟s award of discretionary costs.
                                           III. CONCLUSION
       Based on the foregoing, we conclude that the Epstein Entities owed no legal duty to
Mr. Cunningham, and therefore, the trial court properly granted summary judgment. We also
affirm the award of discretionary costs. This cause is remanded to the trial court for such
further proceedings as may be necessary and consistent with this opinion.


                                                          _________________________________
                                                          W. NEAL MCBRAYER, JUDGE




        6
          Ms. Cunningham also asserts that the trial court erroneously denied her motion, filed after the
summary judgment hearing, for the trial court to take judicial notice of police records for the Cherry Crest
Apartments. Nothing in the record indicates why Ms. Cunningham was unable to obtain these records prior to
the summary judgment hearing, and she offers no explanation in her appeal. More importantly,
Ms. Cunningham does not raise the trial court‟s denial of her motion for judicial notice as an issue in the
statement of the issues section of her appellate brief. Champion v. CLC of Dyersburg, LLC, 359 S.W.3d 161,
163 (Tenn. Ct. App. 2011) (“An issue not raised in an appellant‟s statement of the issues may be considered
waived.”) (citing Regions Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 392 (Tenn. Ct. App. 2009)).
Therefore, we consider the issue waived.

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