       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                   FILED
                                                     March 5, 1999

                                                  Cecil Crowson, Jr.
KENNETH LARRY MANGUM,               )            Appellate Court Clerk
                                    )
      Plaintiff/Appellant,          )
                                    )     Franklin Circuit
VS.                                 )     No. 9739-CIV
                                    )
                                    )     Appeal No.
GOLDEN GALLON CORPORATION,          )     01A01-9709-CV-00459
                                    )
      Defendant/Appellee.           )



      APPEAL FROM THE CIRCUIT COURT FOR FRANKLIN COUNTY
                  AT WINCHESTER, TENNESSEE


                  THE HONORABLE BUDDY PERRY, JUDGE



For the Plaintiff/Appellant:        For the Defendant/Appellee:

James D. Lane, II                   H. Richard Marcus
Ray, VanCleave & Jackson            Fleissner, Cooper, Marcus & Quinn
Tullahoma, Tennessee                Chattanooga, Tennessee




                   AFFIRMED AND REMANDED




                                    WILLIAM C. KOCH, JR., JUDGE
                                    OPINION

       This premises liability action involves a disabled person who was injured when he
tripped on a floor m at while entering a conv enience m arket in De cherd. Th e patron’s su it
against the mark et, originally filed in the Cha ncery Co urt for Franklin County but later
transferred to the Circuit Court for Franklin County, alleged that the market had created a
dangerous condition, especially for patrons us ing crutches, by placing the floor mat at its
entrance. The market moved for summary judgment, relying on the deposition testimony of
the patron, two employees of the market, and the market's surveillance camera videotape of
the patron’s fall. The trial court granted the motio n, and th e patron has app ealed. W e have
determined that the market is entitled to a judgment as a matter of law and, accordingly,
affirm the su mma ry judgm ent.


                                              I.


       Mr. Mang um is an accountant employed by Aerospace Center Support at the Arnold
Engineering Development Center near Tullahoma. For many years, he has been requ ired to
wear leg braces a nd to use L oftstrand crutches because of a congenital birth defect that
caused deformity and muscle weakness in his legs. Mr. Mangum ’s disability makes it
difficult for him to lift up his legs when he walks, and he must carefully negotiate steps,
doorways, and other obstacles to avoid falling. He has, howev er, becom e adept at us ing his
crutches. He is also a ware of h is limitations and tries to avoid situations that might cause
him to fall.


       In addition to his regular employment, Mr. Mangum performs accounting work for
private clients. He took a vac ation day fro m wo rk on No vembe r 10, 1995 , to meet w ith one
of these clients. After concluding his meeting around mid-day, he stopped at the Golden
Gallon Marke t on High way 41 A in De cherd to use the restroom and to purchase a beer that
he planned to drink later with his lunch.


       Patrons enter the Golden Gallon Market through double glass doors that o pen only to
the outside . Just inside the doors is a heavy, rubber-backed red floor mat with a black rubber
border that is plainly visible through the glass do ors. The m at, which is a pproxim ately six
feet long and four feet wide, is supplied by National Dust Control Service. It is placed at the
front door to protect the tile floor from heavy foot traffic and to provide the pa trons with
somewh ere to wipe the ir shoes in inc lement w eather. The edge of the mat is app roximate ly
one inch from the metal d oor jam o f the front do ors. The m at itself consists of industrial


                                              -2-
grade carpet with little or no nap. The market’s emp loyees are responsible for keeping the
mat clean and for making sure that it is lying flat on the floor without wrinkles or creases that
migh t cause p atrons to fall.


       Mr. Mangum parked his automobile close to the market’s front doors.                   After
discarding some tras h in an outside container, he entered the market through the right hand
glass door. Mr. Mangum pulled the door toward him, held the door open with this right
crutch, and then p laced his left crutch inside the store. Then he pulled his feet inside the
store and brought his right crutch into the market. Immediately after Mr. M angum began to
move forward, the toe of his left shoe caught the edge of the mat and he fell forward into the
market. He fractured his left shoulder in the fall. The entire incident was videotaped by the
mark et’s surv eillance came ra.


       The employees of the market came to M r. Mangum ’s assistance. H e declined th eir
offer to summon an ambulance. After collecting himself on the floor for several minutes,
Mr. Mang um ask ed the em ployees to a ssist him to arise from the floor, to bring him the beer
he had originally stopped to purchase, and to return to his automobile. Although shak en, Mr.
Mangum did not leav e the mar ket until he p aid for the be er. After brie fly resting in h is
automobile, Mr. Man gum drove himself back to M urfeesboro. Upon arriving ho me, Mr.
Mangum realized that h e was inju red and d rove him self to the em ergency ro om in
Murf reesbo ro.


       In April 1996, M r. Mangum filed suit against the Golden Gallon Corporation
(“Golden Gallon”) in the Chancery C ourt for Franklin County. After the suit was transferred
to the Circuit C ourt for Fran klin County, Golden Gallon moved for summary judgment
asserting that Mr. M angum could not p rove the ex istence of a d angerou s condition, th at it did
not owe a duty to warn Mr. Man gum of the con dition of the mat, and that M r. Mangum ’s
equal or superior knowledge of the mat’s condition barred his recovery. Golden Gallon
supported its motion with Mr. Mangum’s deposition, the depositions of the market’s manager
and assistant manager, and the videotape of Mr. Mangum’s fall. The trial court granted the
summ ary judgm ent, and M r. Mang um has perfected th is appeal.




                                                II.




                                               -3-
       We turn first to the standard by whic h we rev iew a trial cou rt’s decision to grant a
summary judgment. Summary judgments enjoy no presumption of correctne ss on appe al.
See City of Tullahoma v. Bedford County , 938 S.W .2d 408, 41 2 (Tenn. 1 997); McClung v.
Delta Square L td. Partners hip, 937 S.W.2d 891, 894 (Tenn. 1996). Accordingly, we must
make a fresh determ ination con cerning w hether the re quireme nts of Tenn. R. Civ. P. 56 have
been satisfied . See Hunter v. Brown, 955 S.W .2d 49, 50-5 1 (Tenn. 1 997); Mason v. Seaton,
942 S.W.2d 470, 472 (Tenn. 19 97). Sum mary jud gments are appropriate only w hen there
are no genuine factual disputes with regard to the claim or defense embodied in the motion
and wh en the m oving par ty is entitled to a judgment as a matter of law. See Tenn. R. Civ.
P. 56.04; Moon v. St. Thomas Hosp., ___ S.W.2d ___, ___ (Tenn. 1998)1 ; Bain v. W ells, 936
S.W.2d 618, 622 (Tenn. 19 97); Carvell v. Bottoms, 900 S.W.2d 2 3, 26 (Tenn. 1995 ).


       Courts presented with a summary judgment motion must view the evidence in the
light most favo rable to the n onmov ing party and mu st also draw all reasonab le inferences in
the nonm oving p arty’s fa vor. See Robinson v. Omer, 952 S .W.2d 423, 426 (Tenn. 1997 );
Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996). Thus, a summary judgment
should be granted only when the undisputed facts reasonably support one conclusion – that
the movi ng part y is entitle d to a jud gmen t as a m atter of la w. See McCall v. Wilder, 913
S.W.2d 150, 153 (Tenn. 19 95); Carvell v. Bottoms, 900 S.W.2d at 26. A pa rty may o btain
a summary judgme nt by dem onstrating tha t the nonm oving par ty will be un able to prove an
essential eleme nt of its ca se, see Byrd v. H all, 847 S.W.2d 208, 212-13 (Tenn. 1993),
because the inability to prove an essential element of a claim necessarily renders all other
facts imm aterial. See Alexander v. Mem phis Individual Practice Ass’n , 870 S.W.2d 278, 280
(Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729
(Tenn. Ct. App . 1995).


                                              III.


       Mr. Mang um w ill recover in this premises liability action only if he proves (1) that
Golden Gallon ow ed him a duty of care , (2) that Gold en Gallon ’s conduc t fell below the
applicable standard of care and amounted to a breach of its duty, (3) that he suffered an
injury, (4) that Golden Gallon’s conduct was the cause-in-fact of his injury, and (5) that
Golden Gallon’s conduct was the pro ximate or legal c ause of his injur y. See Coln v. City of
Savannah, 966 S.W.2d 34, 39 (Tenn. 1998). Mr. Mangum’s failure to demonstrate that he
will be able to prove each of these elem ents at trial will entitle Golden Gallon to a su mmary
judgm ent. See Byrd v. Hall, 847 S .W.2d at 215- 16.

       1
        Moon v. St. Thomas Hosp., No. 01S01-9710-CV-00218, 1998 WL ______, at * ___ (Tenn.
Dec. 21, 1998) (For Publication).

                                              -4-
         As in other premises liability cases, our inquiry begins with determining the existence
and nature of Golden Gallon’s duty. As a g eneral matter, the own er or possessor of the
premises owes a general duty to its customers to exercise reasonable care to make the
premises safe. See Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984). More specifically,
the owner or possessor has a duty to remove or to warn customers of any la tent or hidden
dange rous co ndition that the o wner k nows or shou ld reaso nably k now a bout. See Smith v.
Inman Realty Co., 846 S.W.2d 819, 823 (Tenn. Ct. App. 1992). Whether the owner’s or
possessor’s duty encompasses the duty to guard against the acts set forth in the complaint
involves an analysis of the foreseeablity of the risk to which the customer was expos ed. See
Coln v. City of Savannah, 966 S.W .2d at 43; Eaton v. M cClain, 891 S.W.2d 587, 594 (Tenn.
1994).


         It is axioma tic that no du ty can arise in cases of this sort unless a dangerous condition
exists. Mr. Mangum’s complaint, as we understand it, contains alternative allegations
concerning the existence of a dangerous condition. First, Mr. Mangum asserts that placing
the mat at the market’s front door created a dangerous condition for the market’s patrons,
especially for its disabled patrons. Second, he asserts that the market employees had
permitted the mat to bunch up or wrinkle and, therefore, that a wrinkled mat was a dangerous
condition for all the market’s patrons.


                                T HE F LOOR M ATS T HEMSELVES


         We can quickly dispose of Mr. Mangum’s first theory. Placing a mat at the entrance
of a business e stablishme nt does no t create a dan gerous co ndition as a matter of law. The
proof in this record, like common experience, demonstrates that mats like the one involved
in this case are ubiquitous.       They are frequently placed in commercial and business
establishm ents in high traffic areas to protect the floor and to provide persons entering the
premises with somewhere to wipe their shoes. Mr. Mangum himself concedes that he
encounters these ma ts daily at his place of employment and elsewhere. Accordingly, without
some eviden ce that th ese larg e, rubbe r-back ed floo r mats, e ven w hen pro perly p laced, a re
inherently dangerous, M r. Mangum’s claim that their use creates a dangerous condition must
fail as a matter of law.2



         2
         The record contains evidence of only one prior incident involving a patron who tripped over
the mat. The market’s assistant manager testified that a long time before Mr. Mangum’s fall, a
female patron stumbled but did not fall when she caught the edge of the mat with her foot and
“flipped it up.” The assistant manager also stated that it was not easy to flip up the edge of the mat
because of the “real thick rubber” on the bottom of the mat. In light of the number of patrons
entering and leaving the premises on a daily basis, no reasonable person would conclude that this
single incident establishes that the mat creates a dangerous condition.

                                                 -5-
       Even if these mats are not dangero us to the gen eral public, M r. Mang um asse rts that
they are dangerous conditions for persons with disabilities. However, Mr. Mangum has
failed to demo nstrate that he will be able to substantiate this assertion at trial. He conceded
in his deposition that he encou nters these m ats on a daily basis and that he navigates across
them without incident. In ad dition, he has not proffere d any evid ence rega rding the
frequency of incidents in which mats of this sort cause persons with disabilities to fall or that
the use of m ats such as th e one invo lved in this ca se is contrary to any state or federal
accessibility requirement or building code. Thus, w e conclude that Mr. Mangum has
likewise failed to demonstrate that he will be able to prove at trial that properly placed floor
mats create a dangerous condition for persons with disabilities.


                   G OLDEN G ALLON’S M AINTENANCE OF I TS F LOOR M ATS


       Mr. Mangum’s second theory is that Golden Gallon’ s employ ees did no t properly
maintain the mat because they permitted it to bunch up or wrin kle and tha t their failure to
maintain the mat created a dangerous condition. For the purposes of this claim, we find that
owners and possessors of property who place floor mats at the entrance to their buildings
have a duty to maintain these mats in a reasonably safe condition. We also find that an
imprope rly maintained floor mat – one that is wrinkled, bunche d up, worn throu gh, or torn
– could foreseeably cause persons, especially disabled persons with lim ited mobility,
entering or leaving the building to fall. Therefore, an improperly maintained mat could be
a dangerous condition that could expose the owner or possessor of the premises to liability.


       The mere fact that Mr. Mangum tripped and fell when he entered the market is not
proof th at Gold en Ga llon wa s neglig ent. See Williams v. Jordan, 208 Tenn. 456, 464, 346
S.W.2d 583, 586 (1961); Underwood v. HC A Health Servs. of Tenn., Inc., 892 S.W.2d 423,
426 (Tenn. Ct. App. 1994) (stating that evidence of injury alone is not sufficient to prove that
the injury was caused by someone’s negligence). Thus, even if an improperly maintained
floor mat could be a dangerous condition, Mr. Mangum cannot succeed without proof that
the Golden Gallon employees did not properly maintain the floor mat and that the floor mat
was in a dangerous co ndition when he entered the marke t. As we view this rec ord, Mr.
Mangum failed to demonstrate that he will be able to carry his burden o f proof with regard
to either issue.


       Both Golden Gallon employees who were at the market whe n Mr. Mangum fell stated
in their depositions that they have a policy of making sure that the floor mat is c lean, that it
is in the proper location, and that it is lying flat on the floor. The manager testified that the
policy is to keep the mat inside the store and to make sure that it “stays swept” and “flat.”

                                               -6-
The assistant manager testified that she had the resp onsibility on a daily basis to inspect the
mat, to sweep it, and to “make sure . . . it's in position.” She also testified that she could see
the mat from her position at the cash register and that it had not bunched up against the door
when M r. Mang um ente red the m arket.


       The videotape of Mr. Mangum’s fall buttresses the employees’ testimony. It begins
five minutes before M r. Mangum entered the market and contains a clear view of the mat on
the floor adjacent to the door. The mat is lying flat on the floor without any apparent
wrinkles or creases and without being bunched up against the door jam. Prior to Mr.
Mangum ’s arrival at the m arket, four cu stomers e ntered or exited the market without
difficulty and without d isturbing the m at.


       Mr. Mangum entered the market through the right hand door. He held the door open
with this right crutch and then moved his left crutch inside the door. As he brought his feet
into the market, the toe of his left shoe dragged unde r the front edge of the m at. When M r.
Mangum moved his weight forward, both of his feet became entangled in the mat, causing
him to lose his footing and to fall on his left shoulder. The videotape shows that the mat
returned to its original position after Mr. Mangum fell. Mr. Mangum remained in the market
for approximately eleven minutes following his fall. After paying for his beer, he left the
store unaided by walking across the mat where he had tripped and out the same door through
which he had entered.


       Mr. Mangum could not refute the testimony of the market’s employees that the mat
was lying fla t on the f loor. He admitted that he could not state under oath whether the mat
was flat or not. However, he believes that the mat “must have been up some” because, as he
explained, “I walk over those m ats every day in going in and out of stores of this type, going
in and out of my office, any kind of department stores, and I’ve never pushed one of them
[the mats] up before.” Mr. Mangum also conceded that if there were no wrinkles or creases
in the m at, Gold en Ga llon did not do a nythin g that w ould ha ve cau sed him to fall.


       We have considered the undisputed facts in the light most fa vorable to Mr. Mangum
and have determined that reasonable minds can only conclude, based on these facts, that
Golden Gallon’s p lacemen t and ma intenance o f the floor m at at the entran ce to its mar ket did
not create a dangerous condition. In the absence of proof of a dang erous con dition on its
premises, Golden Gallon is entitled to a judgment as a matter of law because Mr. Mangum
has failed to demonstrate that he will be able to prove one of the essential elements o f his
claim o n whic h he w ill bear th e burde n of pro of at trial.



                                                 -7-
                                            IV.


       We affirm the su mma ry judgm ent and remand the case to the trial court for further
proceedin gs consisten t with this opinion. We tax the costs of this appeal to Ke nneth Larry
Mangum and his surety for which execution, if necessary, may issue.




                                                   _____________________________
                                                   WILLIAM C. KOCH, JR., JUDGE


CONCUR:


____________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




____________________________________
WALTER W. BUSSART, SPECIAL JUDGE




                                             -8-
