                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


GEORGIA KEYS,                          )
                                       )
             Plaintiff/Appellant,      ) Shelby Circuit No. 60428 T.D.
                                       )
VS.                                    ) Appeal No. 02A01-9605-CV-00113

MEMPHIS CARWASH, INC. d/b/a
MR. PRIDE’S CARWASH,
                                       )
                                       )
                                       )
                                                                        FILED
                                       )
                                                                       May 15, 1997
             Defendant/Appellee.       )
                                                                        Cecil Crowson, Jr.
                                                                        Appellate C ourt Clerk
            APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                        AT MEMPHIS, TENNESSEE
                  THE HONORABLE KAY S. ROBILIO, JUDGE




EUGENE C. GAERIG
Memphis, Tennessee
Attorney for Appellant


LELAND M. McNABB
SHUTTLEWORTH, SMITH, McNABB & WILLIAMS
Memphis, Tennessee
Attorney for Appellee




AFFIRMED




                                                          ALAN E. HIGHERS, J.


CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
    In this slip and fall case, Georgia Keys (“Plaintiff”) filed suit against Memphis
Carwash, Inc., d/b/a Mr. Pride’s Car Wash (“Defendant”) for injuries sustained from a fall

at Defendant’s place of business.         The trial court granted judgment in favor of the

Defendant holding that Plaintiff failed to establish the Defendant’s negligence. Plaintiff

appeals the judgment of the court below arguing that the trial court erred in holding that the

Plaintiff failed to prove the Defendant’s negligence and in making an oral ruling in favor of

the Defendant at the close of the proof before first making its findings of fact and

conclusions of law. For the reasons stated hereafter, we affirm the judgment of the trial

court.



                                             FACTS



         Sometime between 5:00 and 5:45 p.m. on December 18, 1993, the Plaintiff and her

daughter arrived at Defendant’s place of business for a car wash. Attempting to retrieve

her car after it had been washed, Plaintiff opened the car door and then slipped, fell and

slid under the vehicle.



         After Plaintiff’s fall, the Defendant’s manager, Mr. White, approached the Plaintiff

inquiring as to what had happened. Plaintiff testified that Mr. White said, “My employees

know they shouldn’t have poured that substance.”



         Plaintiff claims to have slipped on a dark, slippery substance and contends that she

could not have avoided the fall due to the fact that it was getting dark outside, the lighting

at Defendant’s place of business was poor, and the substance and the asphalt that she fell

upon was dark.



         At trial, Plaintiff testified that she could not identify the substance that she slipped

upon and that she could not show how it had gotten there, the duration that it had been

there or who had put it there.



                                              LAW



                                                2
       The two issues before this Court are as follows:

       1) Whether the trial court erred in holding that the Plaintiff failed to prove the

Defendant’s negligence; and

       2) Whether the trial court erred in rendering its findings of fact and conclusions of

law.



       Although an owner or operator of a place of business is not an insurer of the safety

of the premises, an owner or operator must exercise ordinary care to maintain the

premises in a reasonably safe condition. Martin v. Washmaster Auto Center, U.S.A., No.

01-A-01-9605-CV-00242, 1996 LEXIS 799, at *10 (Tenn. Ct. App. Dec. 11, 1996); Smith

v. Inman Realty Co., 846 S.W.2d 819, 822 (Tenn. Ct. App. 1992); Jones v. Zayre, Inc., 600

S.W.2d 730, 732 (Tenn. Ct. App. 1980); Patterson v. Kroger Co., 389 S.W.2d 283 (Tenn.

Ct. App. 1965). The duty of care owed by a premises owner to an invitee is a duty of

reasonable care under all the circumstances. McCall v. Wilder, 913 S.W.2d 150, 153

(Tenn. 1995); Eaton v. McLain, 891 S.W.2d 587, 593 (Tenn. 1994). This duty includes the

responsibility of either removing or warning against any latent, dangerous condition on the

premises of which the owner is aware or should have been aware through the exercise of

reasonable diligence. Eaton, 891 S.W.2d at 593-94; Dawson v. Sears, Roebuck & Co.,

394 S.W.2d 877 (Tenn. 1965); Chambliss v. Shoney’s, Inc., 742 S.W.2d 271 (Tenn. App.

1987); Teal v. E.I. DuPont de Nemours and Co., 728 F.2d 799 (6th Cir. 1984).



       In order to prevail in a premises liability action, a plaintiff must show that the

dangerous or defective condition (1) was caused or created by the owner, operator or his

agent; or, (2) if the condition was created by someone other than the owner, operator or

his agent, there must be actual or constructive notice on the part of the owner or operator

that the condition existed prior to the accident. Martin, 1996 LEXIS 799, at *10; Ogle v.

Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47 (Tenn. Ct. App. 1995); Keene v. Cracker

Barrel Old Country Store, 853 S.W.2d 501, 503 (Tenn. Ct. App. 1992); Chambliss v.

Shoney’s, Inc., 742 S.W.2d 271 (Tenn. Ct. App. 1987); Jones, 600 S.W.2d at 732.




                                             3
       If liability is predicated upon the constructive knowledge of the defendant, a plaintiff

can demonstrate constructive knowledge by showing that the dangerous or defective

condition existed for such length of time that the defendant knew, or in the exercise of

ordinary care should have known, of its existence. Simmons v. Sears, Roebuck and Co.,

713 S.W.2d 640, 641 (Tenn. 1986); Martin, 1996 LEXIS 799, at *10; Jones, 600 S.W.2d

at 732. Conversely, a plaintiff can also prove constructive knowledge by showing that the

defendant’s method of operation created a hazardous situation foreseeably harmful to

others. Martin, 1996 LEXIS 799, at *11.



       In Chambliss v. Shoney’s, Inc., 742 S.W.2d 271 (Tenn. Ct. App. 1987), the plaintiff

slipped and fell in a puddle of water in the defendant restaurant’s bathroom. Having no

proof as to the origin of the water, the plaintiff theorized that the water was tracked in from

the snow and slush outside the restaurant. Id. at 273. Although the proof revealed that

there were no mats in place for the defendant’s customers to clean their feet and that it

could have been as long as forty-five minutes since an employee of the defendant made

a periodic inspection of the bathroom floor, the trial court directed a verdict in favor of the

defendant. Id. at 272. In affirming the trial court’s decision, this Court held that the lack

of proof as to when and how the pool of water reached the bathroom floor precluded the

plaintiff from recovering against the defendant. Id. at 274.



       Similarly, in Durham v. Webb, No. 02A01-9502-CV-00033, 1996 WL 298250 (Tenn.

Ct. App. June 3, 1996), the plaintiff allegedly slipped and fell on an oil spot in the parking

lot at defendant’s gas station. Although the plaintiff testified that she saw oil in the same

spot where she fell one week after the accident and although a frequent customer of the

defendant gas station stated that she had observed oil spots in the parking lot on prior

occasions, this Court affirmed the trial court’s grant of summary judgment in favor of the

defendant, holding that the plaintiff failed to prove that the defendant created the

dangerous condition or that the defendant knew or should have known of such condition.

Id. at *4.




                                              4
       Moreover, in Martin v. Washmaster Auto Center, U.S.A., No. 01-A-01-9605-CV-

00242, 1996 LEXIS 799, at *8 (Tenn. Ct. App. Dec. 11, 1996), a case strikingly similar to

the case at bar, the plaintiff slipped and fell on the asphalt at the defendant carwash while

attempting to retrieve her car after it had been washed. Offering no proof as to the identity

of the substance that caused her fall, Plaintiff testified that the substance she slipped upon

was not visible and was “something slippery other than just rainwater or ice water.” Id. at

*8. Plaintiff stated that she “didn’t know” whether what she had slipped on was something

dropped by a customer or was something that had originated by an agent of the defendant.

Id.   In failing to show that the defendant created a hazardous condition or that the

defendant had actual or constructive knowledge of the dangerous condition and in failing

to introduce proof indicating that slip and fall accidents at the carwash were a common or

recurring incident, this Court set aside the jury verdict and granted a judgment in favor of

the defendant. Id. at *22.



       In the instant case, Plaintiff theorizes that the Defendant, through its agents,

servants or employees, created the condition which caused her injury and that, therefore,

the Defendant is liable for the acts of its agents, servants or employees and for the

resultant injury caused by these acts.



       Plaintiff testified that she could not identify the substance that she slipped upon and

that she did not know how the substance had gotten there, the duration that it had been

there or who had put it there. Plaintiff bases her entire case upon the Defendant’s

manager’s statement made shortly after Plaintiff’s fall wherein Defendant’s manager

stated, “My employees know they shouldn’t have poured that substance.”



       Although a plaintiff is not required to prove the specific slippery substance that

caused her fall, a plaintiff must show that the defendant caused the substance upon which

she slipped to be on the ground or that the defendant knew or should have known that the

slippery substance was present. Martin, 1996 LEXIS 799, *11. In this case the statement

by Defendant’s manager was susceptible to more than one interpretation. This statement



                                              5
does not show conclusively that the Defendant or his agents created the dangerous

condition which caused Plaintiff’s fall or that the Defendant or his agents had knowledge

of this condition.



       Because Plaintiff did not prove that the Defendant, through its agents, servants or

employees, created the dangerous or defective condition, that the Defendant or any of its

agents had actual or constructive knowledge of such a condition, or that slip and fall

accidents at the Defendant’s place of business were a common or recurring incident, the

trial court did not err in holding that Plaintiff failed to establish the Defendant’s negligence.



       Because of our disposition of the foregoing issue, we need not address the

remaining issue.



       The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Appellant for which execution may issue if necessary.




                                                           HIGHERS, J.



CONCUR:



CRAWFORD, P.J., W.S.




LILLARD, J.




                                               6
