                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      July 10, 2013 Session

           KAREN GRADY AND TIMOTHY GRADY v. SUMMIT FOOD
                    CORPORATION D/B/A PITA PIT

                   Appeal from the Circuit Court for Davidson County
                      No. 10C2893     Thomas W. Brothers, Judge


                  No. M2012-02493-COA-R3-CV - Filed August 13, 2013


Customer of a restaurant who was injured when she fell on a concrete ramp leading into the
restaurant brought suit against the restaurant, alleging that the ramp constituted a dangerous
condition and that the restaurant failed to exercise reasonable care to avoid injuries to
customers. The trial court granted summary judgment to the defendant on the grounds that
the ramp did not constitute a dangerous condition and that the owners did not have notice that
the ramp constituted a dangerous condition. Finding no error, we affirm the judgment.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., J., joined. P ATRICIA J. C OTTRELL, P. J., M. S., not participating.

Joe Bednarz, Jr., Nashville, Tennessee, for the Appellants, Karen Grady and Timothy Grady.

Brent S. Usery, Nashville, Tennessee, for the Appellee, Summit Food Corporation d/b/a Pita
Pit.

                                             OPINION

       This appeal arises out of a suit filed by Karen and Timothy Grady (“Plaintiffs”)
against Summit Food Corporation (“Defendant”) to recover damages for injuries Mrs. Grady
sustained while visiting Defendant’s restaurant, the Pita Pit, in Nashville.1 Mrs. Grady’s
complaint alleged that on August 8, 2009, she exited the Pita Pit and slipped on the concrete
ramp leading from the restaurant’s entrance. As a result of her fall, Mrs. Grady sustained
injuries to her left arm.


       1
         The complaint named Pita Pit Tennessee, LLC, and Summit Food Corporation d/b/a Pita Pit, as
defendants. An agreed order was entered dismissing Pita Pit, LLC, and the case proceeded against Summit.
       Plaintiffs filed a complaint in Davidson County Circuit Court on July 27, 2010,
alleging that Defendant created the dangerous condition of the ramp; failed to maintain the
ramp in a safe condition; painted the ramp without using non-skid paint or adhesive skid
tape; and failed to warn of the dangerous condition. Plaintiffs requested a judgment for
compensatory and punitive damages.

       In due course, Defendant filed a motion for summary judgment supported by a Tenn.
R. Civ. P. 56.03 statement of undisputed facts and excerpts from the deposition testimony
of Karen Grady, Timothy Grady, Mark Mason, and Thomas Heydweiller.2 In opposition to
the motion, Plaintiffs filed a memorandum and a response to Defendant’s Rule 56.03
statement and relied on portions of the same depositions. On July 25, 2012, the trial court
entered an order granting Defendant’s motion.

       Plaintiffs appeal the trial court’s grant of summary judgment and raise the following
issues for review:

       1.      Whether genuine issues of material fact exist regarding whether the
               ramp leading to Defendant’s restaurant constituted an unreasonably
               dangerous condition.

       2.      Whether genuine issues of material fact exist regarding whether
               [D]efendant was aware of an unreasonably dangerous condition and
               failed to correct or warn of this condition.

       3.      Whether under Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn.
               2008), Defendant negated an essential element of Plaintiff[s’] claim
               thereby shifting the burden to [Plaintiffs].

                                 I. STANDARD OF REVIEW

        When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party's claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publishing Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). If the
moving party's motion is properly supported, “[t]he burden of production then shifts to the



       2
        Thomas Heydweiller testified that he was “part owner” with Mark Mason of the Pita Pit and that
Mr. Mason took “100 percent control of Summit Food Corporation and the Pita Pit” after January 5, 2009.


                                                 -2-
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd
v. Hall, 847 S.W.2d 208, 215(Tenn. 1993)). The non-moving party may accomplish this by:

       “(1) pointing to evidence establishing material factual disputes that were
       overlooked 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 the trial; or (4) submitting an affidavit
       explaining the necessity for further discovery pursuant to Tenn. R. Civ. P. Rule
       56.06.”

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations omitted).

       A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005); BellSouth
Adver. & Publ. Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland
Healthcare Ctr., Inc., 49 S.W.3d 281, 284 (Tenn. 2001); Penley v. Honda Motor Co., 31
S.W.3d 181, 183 (Tenn. 2000). We review the summary judgment decision as a question of
law. Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 437 (Tenn.1998); Robinson
v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). Accordingly, this court must review the record
de novo and make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56
have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v.
West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004); Staples v. CBL & Assoc., 15 S.W.3d
83, 88 (Tenn. 2000).

        In our review, we consider the evidence presented at the summary judgment stage in
the light most favorable to the non-moving party, and afford that party all reasonable
inferences. Draper, 181 S.W.3d at 288; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196
(Tenn. 2001); Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001). "If
there is a dispute as to any material fact or any doubt as to the conclusions to be drawn from
that fact, the motion must be denied." Byrd, 847 S.W.2d at 211.

                                     II. DISCUSSION

       Court decisions have established the circumstances under which an owner of a
business premise owes a duty to a customer of the business and the nature of any such duty.
Owners are not insurers of their customers’ safety. Psillas v. Home Depot, U.S.A., Inc., 66
S.W.3d 860, 864 (Tenn. Ct. App. 2001) (citing McClung v. Delta Square Ltd. P’ship, 937
S.W.2d 891, 902 (Tenn. 1996); Shofner v. Red Food Stores (Tenn.), Inc., 970 S.W.2d 468,
470 (Tenn. Ct. App. 1997)). Accordingly, they do not owe a duty to protect their customers
from any and all risks. Nevertheless, “premises owners have a duty to use reasonable care
to protect their customers from unreasonable risks of harm.” Id. (citing Rice v. Sabir, 979
S.W.2d 305, 308 (Tenn. 1998); Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984);

                                             -3-
Jackson v. Bradley, 987 S.W.2d 852, 854 (Tenn. Ct. App. 1998)). This duty includes
maintaining the premises in a reasonably safe condition either by removing or repairing
potentially dangerous conditions or by helping customers and guests avoid injury by warning
them of the existence of dangerous conditions that cannot, as a practical matter, be removed
or repaired. Id. (citing Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996); Eaton v. McLain,
891 S.W.2d 587, 593-94 (Tenn. 1994)). A duty also attaches if the dangerous or defective
condition was created by the owner or operator. Jones v. Zayre, Inc., 600 S.W.2d 730, 732
(Tenn. Ct. App. 1980) (citing Gargaro v. Kroger Grocery & Baking Co., 118 S.W.2d 561
(Tenn. Ct. App. 1938)).

       Courts have declined to impose a legal duty on owners and occupiers of business
premises “to protect against conditions from which no unreasonable risk of harm can be
anticipated” and when the owner or operator “neither knew about nor could have discovered
the condition in the exercise of reasonable care.” Psillas, 66 S.W.3d at 864-65 (citing Rice,
979 S.W.2d at 309); see Prosser and Keeton on Torts, supra § 61 at 426. Therefore, as a
matter of law, if the owner or its agent did not create the dangerous condition, the owner of
a business premises does not owe a duty to its customers to protect them against conditions
from which no unreasonable risk of harm can be anticipated and conditions of which the
owner had no knowledge and could not have discovered with the exercise of reasonable care.
See Psillas, 66 S.W.3d at 865; see also Rice, 979 S.W.2d at 309.

       In the order granting summary judgment, the trial court stated:

       1.     The undisputed facts . . . show that the entranceway to the Defendant’s
       store did not pose a foreseeable, unreasonable risk of harm of which the
       Defendant was or should have been aware. There is, therefore, no genuine
       issue of material fact that the Defendant did not owe a duty of care to . . .
       Karen Grady.

       2.     In addition, the undisputed facts . . . show that the Defendant did not
       have notice of any foreseeable risk of harm or dangerous condition which
       could cause Mrs. Grady to allegedly have slipped and fallen.

Plaintiffs contend that Defendant offered no proof to negate an essential element of their
claim and that Plaintiffs submitted proof that created genuine issues of material fact
regarding the dangerous condition of the ramp and whether the Defendant had notice that the
ramp constituted a dangerous condition; therefore, summary judgment was inappropriate.

       Defendant’s Rule 56.03 statement included the following assertions pertinent to the
issues in this appeal, all of which were admitted by Plaintiffs in their response, except
numbers 27, 30, 31, and 34, which were denied:


                                             -4-
7. Mrs. Grady was wearing short pants (capris) and flip-flops prior to leaving
the hotel to go to Tootsies.
8. The weather was warm and dry without rain.
***
14. Mrs. Grady and her party stopped at the Pita Pit, the front of which had
large windows with an “inclined, elevated walkway” from the sidewalk to the
front entrance.
15. Mrs. Grady walked into the Pita Pit through the front door, which required
her to walk on the elevated walkway. She was aware at that time of the
presence of the elevated walkway and had no difficulty whatsoever traversing
it while entering the store.
16. After receiving their orders, Mrs. Grady and her party proceeded to leave
the Pita Pit through the front door. Mrs. Grady was the last one of her party to
pass through the front door and prior to doing so she had not observed anyone
experience any difficulty traversing the inclined walkway.
17. As she passed through the front doorway, Mrs. Grady was not looking
down at her feet.
18. As Mrs. Grady walked out on the inclined walkway, her feet slid out from
under her resulting in her falling and striking her left elbow on the concrete.
19. With regard to the condition of the walkway at issue, Mrs. Grady testified:

       Q:     As far as you know as you sit here today, are you aware of
              whether there was any substance, foreign substance, be it grease
              or anything along that line, present on the ramp that night?
       A:     Do I know for certain?
       Q:     Yes ma’am.
       A:     Again, it was slick. I can tell you that.
       Q:     Do you have any knowledge of what paint was used on the
              ramp?
       A:     I wouldn’t know.
       Q:     Do you happen to recall what the condition of the paint on that
              ramp was on the night of your fall?
       A:     No, I don’t.
       Q:     Did you ever go back out to the Pita Pit after the night of your
              fall?
       A:     Last night.
       Q:     Do you have any knowledge as to what the applicable building
              codes are for a commercial building here in Nashville?
       A:     I wouldn’t know that.
       Q:     Do you have any knowledge as to whether nonskid paint was
              used on that ramp?
       A:     I wouldn’t know that.

                                      -5-
       20. Mrs. Grady did not inspect the walkway on the night of the accident at
       issue.
       ***
       23. On an average weekend night, such as the night of Mrs. Grady’s fall, the
       Defendant would have several hundred customers and would stay busy well
       after midnight up until it closed at 4:00 a.m.
       24. Just prior to Mrs. Grady’s fall, there were at least five (5) if not more
       customers in the Pita Pit store in addition to Mrs. Grady and her party.
       25. The elevated walkway was present at the location that came to be the Pita
       Pit prior to the Defendant leasing the property.
       26. The Defendant did not make any repairs, paint the walkway, or make
       changes to the condition of the elevated walkway during the time that it leased
       the location at issue.
       27. The Defendant and its employees conducted regular cleaning of the interior
       and exterior of the store.
       28. At no time prior to Mrs. Grady’s fall had the Defendant received any report
       or other information indicating that someone had slipped or fallen in the
       entranceway or on the elevated walkway in front of the Pita Pit store.
       29. The Defendant never observed the walkway being greasy or oily at any
       time prior to Mrs. Grady’s alleged accident.
       30. Mr. Mason used the entranceway to the Pita Pit on a daily basis prior to
       Mrs. Grady’s alleged accident and never had any difficulty doing so.
       31. Mr. Mason never received any complaints from any employee or customer
       regarding the layout or condition of the entranceway and had no knowledge of
       anyone ever slipping or falling in or on the entranceway.
       32. Mr. Heydweiller is retired due to a medical condition and used a cane to
       walk at all times relevant to this matter.
       33. Mr. Heydweiller used the front entranceway on a daily basis and never had
       any difficulty traversing the elevated walkway.
       34. The paint on the walkway was abrasive and not slippery.
       35. The Defendant is aware of no reason for there to have been any type of
       “greasy substance” on the walkway or entrance on or about the night of Mrs.
       Grady’s fall.

In addition to the matters asserted in the Rule 56.03 statement, Defendant relied upon
deposition testimony Mr. Mason and Mr. Heydweiller. Mr. Mason testified that he knew of
no one else who had fallen on the ramp; that the ramp was cleaned regularly and that the
paint on the ramp “was worn and weathered and not at all slick.” Mr. Heydweiller testified
that he was not aware of anyone having fallen on the ramp; and that a building inspector had
looked at the ramp, that “it was a bit of a slope, but . . . didn’t really pose anything that he
was concerned about,” and that he advised Mr. Heydweiller to “leave the front as it was.”


                                              -6-
       The foregoing supports a finding that the ramp did not constitute a dangerous
condition thereby negating an essential element of Plaintiffs’ claim. Consequently, the
burden shifted to Plaintiffs to produce evidence showing that there was a genuine issue that
the ramp constituted a dangerous condition. Hannan, 270 S.W.3d 1, 9 (Tenn. 2008).

       In their response to the motion, Plaintiffs relied on excerpts from the deposition of Mr.
Heydweiller which they contended showed that the ramp constituted a dangerous condition.
Specifically, they cite testimony that, during the buildout of the restaurant he was concerned
about the slope of the ramp “mainly for accessibility to the store”; that he shared those
concerns with Mr. Mason; that he was not required to bring the ramp up to codes; that he put
a carpet on the ramp when it was cold and wet; and that there were a couple of “close calls”
with restaurant customers who had been drinking at nearby bars almost falling.3

       Construed in the light most favorable to plaintiffs, the testimony of Mr. Heydweiller
is not evidence that the ramp constituted a dangerous condition; neither does it create a
genuine issue of material fact in that regard. Rather it is testimony that he had a “concern”
as to how the slope of the ramp would affect access to the store, that he met with a building
inspector, and that he put down a carpet in inclement weather. The testimony is consistent
with the general duty imposed on Defendant to maintain the premises in a reasonably safe
condition. Consequently, the trial court properly held that the entranceway did not constitute
a dangerous condition or pose an unreasonable risk of harm.

      Having determined that the ramp did not constitute a dangerous condition, we turn to
the question of whether there was an issue of material fact as to whether there was a
dangerous condition on the ramp giving rise to a duty to correct or warn.

       For an operator of a premises to be held liable for negligence in allowing a dangerous
or defective condition to exist on the premises, the plaintiff must prove, in addition to the
elements of negligence, that “the condition was caused or created by the owner, operator, or
his agent,” or if the condition was created by someone other than the owner, operator, or his
agent, “that the owner or operator had actual or constructive notice that the condition existed


       3
           Mr. Heydweiller testified:

       Q: Did you ever have any near falls?
       ***
       A: I’m trying to think. There might have been a couple, you know, just in, you know, people
       coming in and kind of - - usually it was with the drunks at night during what we would call
       our bar rush after the bars closed and they came down to eat. They would tip over their own
       two feet on flat surfaces truthfully. But those would be the ones that if there was anybody
       with a near slip coming into the store, it would have been them. But I don’t personally
       remember anybody ever having a near fall during the day or even early evening coming into
       the store.

                                                  -7-
prior to the accident.” Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004).
(citations omitted). Constructive notice may be established by proof that the dangerous or
defective condition existed for such a length of time that the defendant should have become
aware of the condition in the exercise of reasonable care. Id. (citing Simmons v. Sears,
Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)).

       The pertinent allegation of the complaint stated “the ramp is covered with some sort
of green paint. That the paint made the ramp more slippery and dangerous than contemplated
by the ordinary person.” In its answer, Defendant denied the allegation.4

         In support of its motion, in addition to the evidence showing that the ramp itself did
not constitute a dangerous condition, Defendant relied upon the deposition testimony of Mr.
Mason and Mr. Heydweiller to show that the paint on the ramp did not create a dangerous
condition. Mr. Mason testified that the “paint on this ramp was worn and weathered and not
at all slick.” Mr. Heydweiller testified that “[t]he paint that was there to me felt like it had
some bit of abrasive in it.” Neither testified that the ramp was slippery due to the presence
of the paint or for any other reason. This testimony was sufficient to show that the paint did
not create a dangerous condition, thereby shifting the burden to Plaintiffs to come forward
with evidence establishing a genuine issue of material fact.

       In responding to the motion, Plaintiffs relied on the deposition testimony of Mr.
Heydweiller that he had considered putting non-skid paint or abrasive strips on the ramp but
never got around to it as evidence that the ramp constituted a dangerous condition.5 No other
evidence was introduced by Plaintiffs that the ramp was slippery because of the paint.


       4
         In like manner the statement in Defendant’s Rule 56.03 statement that “the paint on the walkway
was abrasive and not slippery” was denied by Plaintiffs.

       5
           The entire testimony of Mr. Heydweiller in this regard, taken in context, is as follows:

       Q: Did you have - - ever have any trouble with the ramp getting slippery?
       A: In the wintertime, it would get slippery, and then what we would do is we would - - we
       kept salt for the sidewalks and stuff out there to keep them from getting slippery. We had
       a - - there was a rug. We used to get a rug weekly from Cintas, actually several rugs: one
       for right by the front door on inside, one for in front of the front counter, and then a third
       one that we used to use when it would get wet or slippery out there that we would actually
       put outside on the ramp to get a little more traction.
       Q: So you would use a rug of some type on the ramp?
       A: Right, yes.
       Q: Did you ever consider putting some type of non-skid paint or abrasive strips down?
       A: At the time we looked into it, but we never actually got around to looking into it. The
       paint that was there to me felt like it had some bit of abrasive in it. But with everything that
       was going on, that was honestly the lowest on the priority list at the time as to getting done.

                                                     -8-
        The evidence relied upon by Plaintiffs, taken in a light most favorable to them, does
not create a genuine issue of fact that anything on the ramp constituted a dangerous condition
or created an unreasonable risk of harm. To the contrary, the evidence produced by
Defendant shows that the ramp was not in disrepair, that it did not violate any applicable
building codes, that the paint on the ramp did not cause it to be slippery, that the ramp was
routinely cleaned, and that there were no reports of incidents or injuries related to the ramp.
In the absence of a dangerous condition, Defendant owed no duty to Plaintiffs. See Stewart
v. Seton Corp., No. M2007-00715-COA-R3-CV, 2008 WL 426458, at *3 (Tenn. Ct. App.
Feb. 12, 2008).6

        Our disposition of the foregoing issues pretermits our consideration of the third.

                                          III. C ONCLUSION

        For the foregoing reasons, we affirm the judgment of the trial court.




                                                         _________________________________
                                                         RICHARD H. DINKINS, JUDGE




        6
          The premises owner owes a general duty to customers or guests to use reasonable care to make its
premises safe. The duty of reasonable care requires that an owner maintain the premises in a generally safe
condition by removing or repairing potentially dangerous or defective conditions or by helping customers
and guests avoid injury by warning them of the existence of a dangerous or defective condition on the
premises of which the owner was or should have been aware. However, the owner is not “an insurer of the
safety” of guests or customers on the premises, and the duty imposed on the owner does not include the
responsibility to warrant the safety of a condition “for which no unreasonable risk is anticipated . . . .”

Stewart v. Seton Corp., No. M2007-00715-COA-R3-CV, 2008 WL 426458, at *3-4 (Tenn. Ct. App. Feb. 12,
2008) (internal citations omitted).

                                                   -9-
