                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                 OCTOBER 11, 2005 Session

  WANDA BARRON and RONALD BARRON v. LOUISE STEPHENSON
              d/b/a LOUISE LEARNING TREE

                   Direct Appeal from the Circuit Court for Shelby County
                          No. CT-000425-03     Rita L. Stotts, Judge



                    No. W2004-02906-COA-R3-CV - Filed January 4, 2006


In this appeal, we are called upon to evaluate the trial court’s grant of summary judgment to the
defendant in a premises liability suit. After reviewing the record, we hold that the plaintiff failed to
establish that the defendant owed her a duty of care. Specifically, the plaintiff failed to offer any
proof tending to show that the ramp on which she slipped and fell constituted a defective and/or
dangerous condition. Accordingly, we affirm the trial court’s grant of summary judgment to the
defendant.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Erich M. Shultz, Memphis, TN, for Appellant

Kevin D. Bernstein, Memphis, TN, for Appellee
                                             OPINION

                    I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        Wanda Barron (hereinafter “Barron” or “Appellant”) began working for the Tennessee
Department of Human Services (hereinafter “DHS”) in February of 2000. Barron’s job duties
required her to inspect day care facilities to ensure their compliance with DHS regulations and state
law. When she began working for DHS, Barron was assigned the Louise Learning Tree (hereinafter
“Learning Tree”) day care center operated by Louise Stephenson (hereinafter “Stephenson” or
“Appellee”) in Memphis, Tennessee. When Stephenson and her husband first began making
preparations to open Learning Tree, the facility did not have a handicap ramp permitting access to
the building. During the course of preparing the facility for operation as a day care center, a wooden
ramp was erected on the side of one of the buildings. On one side of the ramp is a wall, and on the
other side of the ramp is a handrail. The edge of the roof extends over the ramp, but the roof does
not have rain gutters. During the entire time that Barron has been responsible for inspecting
Learning Tree, the ramp has been in place. Between February of 2000 and January of 2002, Barron
inspected Learning Tree approximately fifteen to twenty times, and she used the ramp to gain access
to the facility during those visits.

        On January 24, 2002, Barron arrived at Learning Tree at some point between 7:00 and 8:00
a.m. to conduct a surprise inspection. According to Barron, it rained the day before and it was
“foggy” and “misty” on the morning of the inspection. At some point, Barron and Stephenson exited
the building and stepped onto the ramp to go to another building. Barron subsequently described the
ramp that morning as an uncovered wooden surface that was wet. Stephenson subsequently stated
that carpet covered the ramp on the morning of Barron’s visit and that the carpet had been in place
for the previous three years. When they stepped out onto the ramp, Barron noted that the sun was
coming out and the fog had dissipated. While traversing the ramp, Barron did not use the handrail
because she had her handbag in one hand and a file folder in the other hand. Other than being damp,
Barron stated that she did not see any foreign objects on the ramp and that her view of the ramp was
unobstructed. About halfway down the ramp, Barron slipped on the ramp and fell. Barron
subsequently stated that, after she fell, she instructed Stephenson to cover the wood. Barron noted
that she had no legal basis for instructing Stephenson to cover the wood surface, other than the fact
that she had just fallen. After the fall, Barron completed the inspection of Learning Tree.

        On January 24, 2003, Barron and her husband filed a complaint against Stephenson in the
Circuit Court of Shelby County seeking damages for injuries Barron allegedly sustained from the fall
at Learning Tree, which they asserted were “due to [Stephenson’s] negligence.” Stephenson
subsequently filed an answer denying liability and asserting that Barron’s injuries were caused by
her own negligence. Thereafter the parties engaged in discovery. In response to the interrogatories
submitted by Stephenson, Barron supplied the following answers:

               3.      Please identify and describe what caused you to allegedly slip
               and fall on the property of the defendant.


                                                 -2-
                  ANSWER:           A slippery wooden ramp.

                           ....

                  7.      If you contend that there was a dangerous or hazardous
                  condition that caused your fall:
                  a.      Describe the condition in detail;
                  b.      State its origin and how long said condition had been present
                  prior to fall;
                  c.      Which of defendant’s employees or agents were aware of said
                  condition; and
                  d.      How long, to your knowledge, were any of the defendant’s
                  employees or agents aware of said condition prior to your fall?

                  ANSWER:        The wet wooden ramp was slippery. I do not know
                  how long the ramp had been there, but I am certain that Defendant
                  knew the ramp was there and that it was not covered or treated so as
                  to avoid absorbing water and becoming slippery.

At the conclusion of discovery, Stephenson filed a motion for summary judgment and included
Barron’s deposition in support of her motion. Barron responded and submitted Stephenson’s
deposition in support of her response.1

         On October 11, 2004, the circuit court entered an order granting Stephenson’s motion.
Barron filed a motion asking the trial court to reconsider the ruling, which the court subsequently
denied on November 10, 2004. Barron filed a timely notice of appeal raising the issue of whether
the trial court erred in granting summary judgment to Stephenson. We affirm the trial court’s ruling.

                                         II.    STANDARD OF REVIEW

      The standard utilized by this Court when reviewing a trial court’s grant of summary
judgment is as follows:

                         The standards governing an appellate court’s review of a
                  motion for summary judgment are well settled. Since our inquiry
                  involves purely a question of law, no presumption of correctness
                  attaches to the lower court’s judgment, and our task is confined to
                  reviewing the record to determine whether the requirements of
                  Tennesee Rule of Civil Procedure 56 have been met. See Staples v.


         1
           The aforementioned discovery materials encompass all of the materials submitted to the trial court for use in
ruling on Stephenson’s motion for summary judgment. The pertinent facts taken from these discovery materials are
undisputed.

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               CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v.
               Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran
               Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee
               Rule of Civil Procedure 56.04 provides that summary judgment is
               appropriate where: 1) there is no genuine issue with regard to the
               material facts relevant to the claim or defense contained in the
               motion, and 2) the moving party is entitled to a judgment as a matter
               of law on the undisputed facts. Staples, 15 S.W.3d at 88.

Blair v. West Town Mall, 130 S.W.3d 761, 763–64 (Tenn. 2004).

                                        III.   DISCUSSION

       The owner or operator of a place of business is not an insurer of the safety of those
frequenting the property. See Smith v. Inman Realty Co., 846 S.W.2d 819, 822 (Tenn. 1992); Jones
v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. Ct. App. 1980). However, they are required to exercise
ordinary care with regard to social guests and business invitees on the premises. See Rice v. Sabir,
979 S.W.2d 305, 308 (Tenn. 1998); Smith, 846 S.W.2d at 822; Jones, 600 S.W.2d at 732. “It is a
well-settled rule of this State that the mere fact that an injury has been sustained never raises a
presumption of negligence.” Mullins v. Seaboard Coastline Ry. Co., 517 S.W.2d 198, 201 (Tenn.
Ct. App. 1974) (citations omitted); see also Fulton v. Pfizer Hosp. Prods. Group, Inc., 872 S.W.2d
908, 911 (Tenn. Ct. App. 1993). As our supreme court has previously noted,

               [n]o claim for negligence can succeed in the absence of any one of the
               following elements: (1) a duty of care owed by the defendant to the
               plaintiff; (2) conduct falling below the applicable standard of care
               amounting to a breach of that duty; (3) an injury or loss; (4) causation
               in fact; and (5) proximate, or legal cause.

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993) (citations omitted).

        In premises liability cases, the superior knowledge of the condition of the premises possessed
by the owner or operator triggers liability. See Eaton v. McLain, 891 S.W.2d 587, 593–94 (Tenn.
1994); Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 46 (Tenn. Ct. App. 1995). Thus, before
the owner or operator of the premises may be held liable for negligently allowing a dangerous or
defective condition to exist on the premises, the plaintiff must also prove the following:

               1) the condition 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, that the owner or operator had actual or
               constructive notice that the condition existed prior to the accident.




                                                 -4-
Blair, 130 S.W.3d at 764 (citations omitted); see also Jones, 600 S.W.2d at 732. “The duty imposed
on the premises owner or occupier, however, does not include the responsibility to remove or warn
against ‘conditions from which no unreasonable risk was to be anticipated, or from those which the
occupier neither knew about nor could have discovered with reasonable care.’” Rice, 979 S.W.2d
at 309 (quoting W. Page Keeton, Prosser & Keeton on the Law of Torts § 61, at 426 (5th ed. 1984)).

        The party moving for summary judgment may prevail by “affirmatively negat[ing] an
essential element of the nonmoving party’s claim, i.e., a defendant in a negligence action would be
entitled to summary judgment if he convinced the court that he owed no duty to the plaintiff.” Byrd
v. Hall, 847 S.W.2d 208, 216 n.5 (Tenn. 1993). “The existence or nonexistence of a duty owed to
the plaintiff by the defendant is entirely a question of law for the court.” Bradshaw v. Daniel, 854
S.W.2d 865, 869 (Tenn. 1993) (citations omitted); see also Rice, 979 S.W.2d at 308. “Summary
judgments are proper in virtually any civil case that can be resolved on the basis of legal issues
alone.” Heggs v. Wilson Inn Nashville-Elm Hill, Inc., No. M2003-00919-COA-R3-CV, 2005
Tenn. App. LEXIS 535, at *3 (Tenn. Ct. App. Aug. 25, 2005) (citations omitted) (no perm. app.
filed).

        On appeal, Barron confines her theory of recovery to the contention that Stephenson is liable
for her injuries because Stephenson or her agents constructed a defective and/or dangerous ramp.
At oral argument, Stephenson conceded that she had the ramp constructed for her business. Yet,
Barron does not offer any proof that the ramp, other than being wet after it rained, was defectively
constructed so as to create a defective or dangerous condition. In fact, Barron offered the following
response to Stephenson’s attempt to discover the basis for Barron’s assertion that the ramp was
defective or dangerous:

               The wet wooden ramp was slippery. I do not know how long the
               ramp had been there, but I am certain that Defendant knew the ramp
               was there and that it was not covered or treated so as to avoid
               absorbing water and becoming slippery.

In her deposition, Barron testified that, on the date of her fall, Stephenson was not required by law
or DHS regulations to cover the ramp’s wooden surface, there was nothing obstructing her view of
the ramp, and there were no foreign objects on the ramp. Over a two-year period, Barron inspected
Learning Tree approximately fifteen to twenty times, using the ramp numerous times during those
visits. Never once did Barron cite Learning Tree for the ramp’s failure to comply with DHS
regulations nor did she raise an issue concerning the ramp’s failure to comply with applicable
building codes. Moreover, Barron did not present any evidence in response to Stephenson’s motion
for summary judgment asserting that the ramp, as it existed on the date of her accident, violated the
applicable building codes.

        The facts in this case are closely analogous to the facts in Nee v. Big Creek Partners, 106
S.W.3d 650 (Tenn. Ct. App. 2002). In Nee, a premises liability action, the plaintiff was playing golf
at the defendant’s facility. Id. at 652. After teeing off on hole number eleven, the plaintiff began


                                                -5-
descending a flight of stairs constructed from railroad crossties when he slipped and fell, suffering
a broken ankle. Id. The plaintiff filed a premises liability action against the defendant asserting that
it was negligent in constructing and maintaining the stairs. Id. At trial, the plaintiff testified that,
upon descending the stairs, he heard a crackling noise as his foot began to slide out from under him.
Id. He also introduced photographs of the stairs as they existed on the date of his fall. Id. At the
close of the plaintiff’s proof, the defendant moved for a directed verdict2 arguing that the plaintiff
failed to prove that the stairs constituted a dangerous condition. Id. The trial court agreed and
granted a directed verdict to the defendant. Id. The plaintiff appealed that ruling to this Court. Id.
at 653.

        On appeal, the plaintiff argued that, when the photographs and his testimony are given the
strongest legitimate view in his favor, they permit the trier-of-fact to make the reasonable inference
that the steps were defective and dangerous. Id. at 654. In affirming the trial court’s entry of a
directed verdict, we stated that,

                  for an owner or occupier to be found negligent, there must be some
                  evidence that there was a dangerous or defective condition on the
                  premises. A jury cannot conclude that an owner or occupier failed to
                  exercise reasonable care to prevent injury to persons on their property
                  if there is no evidence of a dangerous or defective condition. If no
                  dangerous or defective condition exists, an owner or occupier cannot
                  be held liable for failing to take action in order to remedy the
                  supposed condition.

Id. at 653–54. We concluded that the evidence presented by the plaintiff was not sufficient to prove
the existence of a defective or dangerous condition. Id. at 654. Thus, we held that, “[w]ithout some
type of dangerous condition, [the defendant] cannot be found to have breached a duty.” Id.; see also
Friedenstab v. Short, 174 S.W.3d 217, ____ , No. M2003-00603-COA-R3-CV, 2004 Tenn. App.
LEXIS 346, at *17–18 (Tenn. Ct. App. May 27, 2004) (affirming the trial court’s grant of summary
judgment to the defendant after finding that plaintiff failed to prove that the defendant owed her a
duty when there was no proof of any defect in the stairs on which plaintiff slipped and fell); Kerver
v. Opryland USA, Inc., No. 01A01-9309-CV-00421, 1994 Tenn. App. LEXIS 219, at *9–10 (Tenn.
Ct. App. Apr. 20, 1994) (upholding a trial court’s grant of a directed verdict to the defendant when
the plaintiff failed to show that the ramp violated any building code, failed to show that the defendant
failed to maintain the ramp, and the record did not contain any proof demonstrating a prior problem
with the ramp).



         2
            “In determining whether or not a genuine issue of material fact exists for purposes of summary judgment,
courts in this state have indicated that the question should be considered in the same manner as a motion for directed
verdict made at the close of the plaintiff’s proof, i.e., the trial court must take the strongest legitimate view of the
evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all
countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210–11 (Tenn. 1993) (citations omitted).

                                                          -6-
        As did the plaintiff in Nee, Barron failed to offer any evidence as to what aspect of the ramp,
other than it being wet after it rained, constituted a defective or dangerous condition. We hold that
Barron failed to prove a necessary element of her negligence action — the existence of a duty on the
part of Stephenson. Accordingly, we affirm the trial court’s grant of summary judgment to
Stephenson.

                                         IV. CONCLUSION

        For the aforementioned reasons, we affirm the trial court’s grant of summary judgment to the
Appellee in this case. Costs of this appeal are to be taxed to the Appellant, Wanda Barron, and her
surety, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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