                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                               May 4, 2004 Session

                     DONNA DENTON, ET AL. v. JOHN HAHN, ET AL.

                          Appeal from the Circuit Court for Davidson County
                              No. 01C-1531     Barbara Haynes, Judge



                      No. M2003-00342-COA-R3-CV - Filed September 16, 2004


PATRICIA J. COTTRELL, J., concurring.

        I agree with the analysis and conclusion of the majority on the issue of responsibility for the
threshold. I also concur in the result reached in this case because the tenants, the Dentons,
unquestionably had knowledge of the defective condition of the threshold that was superior to that
of the association. I write separately, however, because I cannot agree with the majority’s analysis
of the appropriateness of summary judgment on the notice issue.1

        The majority questions the sufficiency of the Dentons’ proof; however, this case is only at
the summary judgment stage. Consequently, at this stage, the Dentons were required to come
forward with proof filling in the gaps noted by the majority only if evidence in the summary
judgment filings affirmatively negated the basis of the Dentons’ claim. The initial burden was on
the party moving for summary judgment, the association.

         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. 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.

Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000) (citations omitted). Thus, only
where the moving party presents evidence sufficient to justify grant of the motion is the nonmoving
party required to come forward with significant probative evidence that makes it necessary to resolve
a factual dispute at trial.


         1
           Specifically, I disagree with the majority’s conclusion that the Dentons were required to “demonstrate that they
will be able to prove that the homeowners’s association had actual or constructive notice of the condition of the threshold
prior to Ms. Denton’s injury” and that failure to do so justifies dismissal of their complaint at this point in the litigation
based on the record before us.
       Through a series of opinions, our Supreme Court has made it clear that the first task of a trial
court or this court, in deciding a summary judgment motion filed by a defendant, is to determine
whether the moving party has presented proof that negates an essential element of the plaintiff’s
claim or establishes an affirmative defense. Blair v. West Town Mall, 130 S.W.3d 761, 767-68
(Tenn. 2004); Staples, 15 S.W.3d 83, 88-89 (Tenn. 2000); Blanchard v. Kellum, 975 S.W.2d 522,
525 (Tenn. 1998); McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998).

        If a court has “bypassed the moving parties’ initial burden and addressed only the sufficiency
of the non-moving parties’ opposing evidence” it has erred by “focusing on the non-moving parties’
burden without first addressing whether that burden was actually triggered.” Blair, 130 S.W.3d at
761, quoting McCarley, 960 S.W.2d at 587-88.

        A court should not grant, or affirm a grant of, summary judgment simply because the court
has doubts, even serious doubts,2 about the plaintiff’s ability to prove his or her claim at trial. Blair,
130 S.W.3d at 768 (“The Court of Appeals was correct in noting that while this evidence [the
plaintiff’s deposition statement that she did not know how long the oil she slipped in had been in the
parking lot] casts doubt on Plaintiff’s ability to prove at trial whether Defendant had actual or
constructive notice of the dangerous condition in Defendant’s parking lot, it does not negate the
element of notice”). The case of Madison v. Love, No. E2000-01692-COA-RM-CV, 2000 WL
1036362 (Tenn. Ct. App. July 28, 2000) (no Tenn. R. App. p. 11 application filed) is a clear
demonstration of the point that probable inability to prove an element at trial is not a basis for
dismissal on summary judgment. In that case, the plaintiff sought permission to appeal the Court
of Appeals decision affirming the grant of summary judgment where an autopsy did not disclose the
cause of death and the decedent’s body had been cremated. The Supreme Court granted permission
to appeal and, by order, remanded the case to the Court of Appeals for reconsideration and decision
in accordance with McCarley. The Court of Appeals subsequently reversed the grant of summary
judgment because the pathologist’s affidavit that the cause of death was unknown did not negate the
causation element of the plaintiff’s case, stating that while the pathologist’s presumed testimony
“may be a serious impediment to the successful pursuit of this claim at trial, that is not the issue
before us.” Madison, 2000 WL 1036362, at *2. See also Ray v. Board of Education of Oak Ridge,
72 S.W.3d 657, 662 (Tenn. Ct. App. 2002) (quoting Madison’s holding that “[m]aterial supporting
a motion for summary judgment must do more than ‘nip at the heels’ of an essential element of a
cause of action; it must negate that element”).

        The majority and I differ in our interpretation and application of the McCarley through Blair
line of decisions. Our differing interpretations lead to different conclusions on the notice issue in
the case before us. The majority concludes that a defendant is entitled to summary judgment if it
demonstrates that the plaintiff’s, or nonmoving party’s, evidence itself is insufficient to establish an
essential element of its claim, relying on statements in Celotex and Byrd. Those statements,



        2
          In Blair, the defendant emphasized one Court of Appeals judge’s comment that if the evidence remained the
same, the defendant might well be entitled to a directed verdict. 130 S.W .3d at 768.

                                                       -2-
however, must be interpreted in light of other statements in Byrd as well as the Tennessee Supreme
Court’s later refinements of them.3

        In Byrd, the Court also stated that, “[a] conclusory assertion that the nonmoving party has
no evidence is clearly insufficient” to support the grant of summary judgment. Byrd, 847 S.W.2d
at 215. In fact, in Byrd, the Court reversed the lower courts’ grant of summary judgment because
even though the plaintiff’s affidavit lacked specificity, the assertions therein were sufficient to
withstand a motion for summary judgment “particularly in view of the fact that the Defendants
submitted no countervailing affidavits, but simply denied that the alleged events ever even
occurred.”4 Id. at 217.

         While summary judgment is appropriate for a defendant who relies on evidence from the
plaintiff that disproves or affirmatively negates an essential element of the plaintiff’s claim, mere
omissions in the plaintiff’s proof at the summary judgment stage, combined with only an allegation
that the proof is insufficient, cannot support summary judgment in the absence of proof from the
defendant affirmatively negating an element.5 As Blair, Staples, Blanchard, and McCarley make
clear, a defendant moving for summary judgment cannot rely solely on omissions or weaknesses in
the plaintiff’s proof, e.g., in his or her deposition. Blair, 130 S.W.3d at 768 (holding that although
plaintiff’s deposition testimony was not sufficient to prove notice, it did not affirmatively negate the
element of notice because it did not prove that the defendants did not have actual or constructive
notice); McCarley, 960 S.W.2d at 588 (holding that although plaintiff’s evidence could not
distinguish between two possible causes of his food poisoning, one of which was unrelated to



         3
           The majority opinion characterizes my interpretation of our Supreme Court’s rulings in Blair and its
predecessors as “a sign that the Tennessee Supreme Court has retreated from the basic burden of persuasion and
production principles adopted eleven years ago.” I respectfully disagree with that characterization of my position.
Rather, I interpret those cases from 1998 forward as clarifying the burdens in the context of the particular factual
situations presented. Further, I cannot help but conclude that the Court has clearly said what it meant and continues to
mean what it said. See Blair, 130 S.W .3d at 767 (holding that the defendant’s argument that it was enough for the
defendant to demonstrate that the plaintiff had not presented any evidence on an element “overlooks Tennessee case law
that makes clear what burden is placed on each party in a motion for summary judgment. A series of decisions from this
Court has addressed the burden-shifting framework to be applied,” citing Staples and McCarley specifically).

         4
          In Byrd, the plaintiff had responded to the motion for summary judgment by filing an affidavit. In that context,
the Court also stated,

         The Plaintiff is not required to prove his entire case by a preponderance of the evidence at the
         summary judgment stage. He need only raise genuine issues of material fact, making summary
         judgment inappropriate. Nothing more is required of the Plaintiff as the nonmoving party.

Id.

         5
          In that situation, the burden is not even shifted to the nonmoving party. See Blanchard, 975 S.W .2d at 525
(holding that the requirement for such shifting is that the moving party affirmatively negate an element of the plaintiff’s
claim or establish an affirmative defense).

                                                           -3-
defendant, the evidence presented by defendant did not rule out its food as the cause of the injury
and, therefore, did not negate the essential element of causation).

       Further, mere assertions that the nonmoving party has no evidence do not suffice to entitle
the moving party to summary judgment. McCarley, 960 S.W.2d at 588; Arnett v. Domino’s Pizza,
124 S.W.3d 529, 532 (Tenn. Ct. App. 2003). Mere denials of an element of the plaintiff’s claim do
not negate that element and cannot support summary judgment. Blanchard, 975 S.W.2d at 525.
Arguments, as opposed to proof, similarly do not negate a claimed basis for the suit and do not shift
the burden to the nonmoving party.

         Applying the rather straightforward framework for analysis applicable to the issue before us,
the first question to be addressed is whether the defendant has affirmatively negated an essential
element of the plaintiff’s claim, specifically actual or constructive notice on the part of the
association. Having carefully reviewed each of the filings in the record, I can find no evidence
presented by the association that negates the Dentons’ claims as to notice.6 There is no statement
in any affidavit or other evidentiary filing that the association had no notice of the defective
condition of the threshold. A mere conclusory assertion that it did not have the required notice is
not sufficient.

        Instead of presenting its own evidence to disprove actual or constructive notice and relying
on such evidence, the association merely argues that the Dentons did not prove that the association
had knowledge of the specific condition that caused the fall. That argument is inconsistent with the
burden placed in the first instance on the party moving for summary judgment. In addition, in this
case the Dentons stated, in affidavit or deposition, that Ms. Denton’s heel “slid off the threshold
because it’s slanted down;” that the problem was that the foundation beneath the threshold had
settled and pulled away from the threshold, leaving an “uneven gap” and consequently, “the
threshold was elevated in relation to the concrete step that was underneath it;” and that the
association had had knowledge of the defective condition of their building due to settling since at
least 1988. These statements, uncontradicted by the association, do not disprove that the association
had the notice required to trigger a duty to use reasonable care.7




         6
          This can perhaps be explained by the fact that most of the summary judgment filings and argument centered
on the issue of the ownership of the threshold, i.e., the question of who had the duty to maintain the threshold. Little
evidence was supplied on the other issues.

         7
            Additionally, if we afford the Dentons all reasonable inferences in their favor, as we are required to do, there
is a basis to infer that the slanting of the threshold resulted from settling. W hether the length of time that the association
knew about the settling and certain consequences of it was sufficient to establish that the association should have known
of the dangerous condition had it used reasonable care in the exercise of its duty to maintain the threshold is subject to
debate and, therefore, not appropriate for summary judgment.

                                                             -4-
     I agree with the result reached by the majority opinion. However, I do not agree that
summary judgment is appropriate on the issue of notice.



                                                 ____________________________________
                                                 PATRICIA J. COTTRELL, JUDGE




                                           -5-
