                                                                                          08/29/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 April 12, 2017 Session

       WANDA KATZ v. THE SPORTS AUTHORITY OF THE
  METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
                   COUNTY, TN, ET AL.

                 Appeal from the Circuit Court for Davidson County
                   No. 13C3528 Hamilton V. Gayden, Jr., Judge
                     ___________________________________

                           No. M2016-01874-COA-R3-CV
                       ___________________________________


FRANK G. CLEMENT JR., P.J. M.S., dissenting.

       The majority opinion affirms the grant of summary judgment in this slip and fall
case based on the determination that Wanda Katz (“Plaintiff”) failed to provide sufficient
evidence of constructive notice. I respectfully disagree, having concluded that there exists
a genuine issue of material fact as to whether Defendants had constructive notice of the
dangerous condition.

      I begin by noting that “negligence cases are not amenable to disposition on
summary judgment unless” the inferences and facts taken together “are so certain and
uncontroverted that reasonable minds would agree.” Burgess v. Tie Co. 1, LLC, 44
S.W.3d 922, 923 (Tenn. Ct. App. 2000). 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 v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000). Moreover, in deciding
a motion for summary judgment, we “must view the pleadings and evidence before it in
the light most favorable to the opponent of the motion on an issue-by-issue basis.”
Burgess, 44 S.W.3d at 923 (citing Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276
(Tenn. Ct. App. 1977)). Thus, in this appeal we are required to view the evidence “in the
light most favorable” to Plaintiff and we are also required to “draw all reasonable
inferences” in Plaintiff’s favor.

       As the majority correctly noted, Plaintiff did not assert that Defendants or their
employees created the spill that caused her fall. Moreover, she concedes that Defendants
did not have actual notice of the spill on the concourse floor. Therefore, the dispositive
issue here is whether Defendants had constructive notice of the liquid on the floor where
Plaintiff fell. To be more precise, because this case was decided on summary judgment,
the dispositive issue is whether reasonable minds could disagree on this fact. See id.

        Plaintiff principally relies on three facts, and the reasonable inferences to be drawn
from these facts, to establish that there is a genuine issue of material fact concerning
whether Defendants had constructive notice of the dangerous condition. The principal
facts Plaintiff relies on are that: (1) three of Defendants’ employees were standing nearby
at the time that she fell; (2) the employees were instructed not to clean up until after the
concert was over; and (3) at least one other slip-and-fall incident occurred in the same
general area approximately one hour earlier. Plaintiff also identified where these facts can
be found in the record. Specifically, the September 4, 2012 “event log” maintained by
Defendants which, inter alia, identified incidents that were reported, including “wet
spills,” the locations of the spills, and when someone was dispatched to address the
incident.

       The majority found it significant that nothing in the record indicated how long the
spill had been on the concourse floor before Plaintiff fell. They also concluded that
Plaintiff’s reliance on the event log of incidents is misplaced to show constructive notice
of a dangerous condition existing at the arena on the day of the concert. This conclusion
is based in part on the majority’s assessment of the evidence Plaintiff relies on, which is
explained in footnote 2 of the majority opinion. The footnote reads, in pertinent part:

       Ms. Katz also argues that her observation of three people standing near the
       area where she fell showed that Defendants had constructive notice of the
       dangerous condition. Ms. Katz “presumes” that the three were employees
       of Service Management Systems, also known as SMS, the firm hired by
       Powers Management to clean the arena. According to an affidavit, Kristina
       Barker, a former SMS employee, started her shift at 10:00 p.m. on
       September 4, 2012, with instructions “not to clean up until after the concert
       was over.” Based on this affidavit, Ms. Katz further presumes that the three
       people she saw were not doing their job because Defendants instructed
       them not to clean up.


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        I respectfully disagree with the majority’s finding that Plaintiff’s evidence is based
on presumptions that cannot be considered as evidence. Instead of recognizing this
evidence as presumptions, I submit we are required to consider the evidence if the
evidence constitutes reasonable inferences to be drawn from other facts Plaintiff has
identified. Thus, instead of viewing this evidence as presumptions by Plaintiff, which
may not be considered at the summary judgment stage, I submit that we are not only
entitled to draw reasonable inferences from these facts, but that we are required to draw
reasonable inferences from them at the summary judgment stage. See Staples, 15 S.W.3d
at 89 (“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.”).

       I also find it significant that Plaintiff relies on an affidavit by Kristina Barker, a
former employee of SMS. Ms. Barker unequivocally stated that she was instructed “not
to clean up until after the concert was over.” The troubling aspect of this undisputed fact
and, more importantly, the reasonable inference to be drawn from this fact is that if Ms.
Barker or other employees of Defendants had notice of the spill, the policy was not to
clean it up (not to remove the hazard) until after the concert was over.

       As our Supreme Court explained in Parker v. Holiday Hosp. Franchising, Inc.:

       “Constructive notice” is defined as “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.” Hawks v. City of
       Westmoreland, 960 S.W.2d 10, 15 (Tenn. 1997) (quoting Kirby v. Macon
       Cnty., 892 S.W.2d 403, 409 (Tenn. 1994)). Constructive notice may be
       established by showing that a dangerous or defective condition existed for
       such a length of time that a property owner, in the exercise of reasonable
       care, should have become aware of it. Blair, 130 S.W.3d at 764; Simmons
       v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986). Constructive
       notice may also be established by showing that the dangerous condition
       resulted from “a pattern of conduct, a recurring incident, or a general or
       continuing condition.” Blair, 130 S.W.3d at 765.

Id., 446 S.W.3d 341, 351-52 (Tenn. 2014).

        Plaintiff identified evidence in the record which established that “information or
knowledge of a fact” could have been discovered by proper diligence by Ms. Barker or
the other SMS employees who were standing near where Plaintiff fell. This evidence is
sufficient to cast upon these employees, and therefore Defendants, the duty of inquiring
into it and taking appropriate action. Therefore, Plaintiff has created a dispute of fact
concerning whether Defendants had constructive notice of the spill prior to Plaintiff’s
fall. Id. (“Constructive notice” is defined as “information or knowledge of a fact imputed
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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.”).

       With the foregoing principles as well as the summary judgment standard in mind, I
am of the opinion that the facts relied upon by Plaintiff, in conjunction with the
reasonable inferences we are required to draw from those facts, are sufficient to create a
dispute of a material fact concerning notice. Stated another way, I believe reasonable
minds could disagree concerning whether Defendants had reasonable notice. Therefore, I
am of the opinion that Defendants failed to establish that they were entitled to summary
judgment.



                                                 _________________________________
                                                 FRANK G. CLEMENT JR., P.J. M.S.




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