                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 6, 2013 Session

   CYNTHIA L. CHRISTIAN, ET AL. v. AYERS L.P. d/b/a MS. LASSIE’S
                            LODGE

                  Appeal from the Circuit Court for Campbell County
                           No. 15100    John McAfee, Judge


               No. E2013-00401-COA-R3-CV-FILED-MARCH 28, 2014


This is a premises liability case. An attendee at an event fell in the defendant’s parking lot
and sustained injuries. The attendee and her husband filed suit against the defendant
claiming negligence because the parking area had no lighting on the evening of the fall. The
defendant filed a motion for summary judgment, asserting it: had no notice the outdoor lights
were burned out; owed no duty to the attendee; and the attendee was more than fifty percent
at fault for her injuries. The trial court determined the record contained insufficient evidence
to establish that the defendant had notice the outside lights were not working. The other
issues raised were dismissed as moot. The plaintiffs appeal. We reverse and remand for
further proceedings.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and D. M ICHAEL S WINEY, J., joined.

R. Kim Burnette and Stacie D. Miller, Knoxville, Tennessee, for the appellants, Cynthia L.
and Benny Christian.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Ayers L.P. d/b/a Ms. Lassie’s
Lodge.

                                          OPINION

                                    I. BACKGROUND

       On the evening of November 30, 2010, Cynthia Christian (“Invitee”) was attending
a meeting at Ms. Lassie’s Lodge (“the Lodge”) related to a “Relay for Life” event sponsored
by the American Cancer Society. The Lodge is owned and operated by Ayers, L.P.
(“Owner”). On the date of Invitee’s accident, the Lodge had been owned by Owner for
approximately 6.5 years. It is rented out for parties and overnight lodging through the nearby
Hampton Inn, which is also owned and operated by Owner.

       Invitee arrived at the Lodge at approximately 5:30 p.m. She parked in a paved lot
adjacent to the facility. A short walkway leads from the parking area to the Lodge’s porch
steps. It was rainy, but the natural lighting was sufficient to allow Invitee to enter the Lodge
without incident. The event ended sometime between 6:30 and 7:00 p.m. When Invitee left
the Lodge, it was dark outside. There was a “slight drizzle.” The lights located beside the
entrance doors were the only exterior lights on, providing very little illumination along the
side of the Lodge. Beyond the front porch, there was no exterior lighting for the walkway
or parking area.1 The outdoor lighting at that time consisted of a two bulb fixture on the eave
of the corner of the Lodge above the steps and walkway. The lighting was not working at
the time of the accident. Prior to the fall, Invitee was unaware of the existence of the light
fixture.

       According to Invitee, it was wet enough that she planned to pull her car up to the front
porch so her passengers could get in quickly to avoid getting items they were carrying wet.
She recalled walking slowly with extra caution because it was so dark and she was unable
to see the ground. Invitee had difficulty locating her car and had to click her key fob to
identify it. While this action activated the vehicle’s headlights, they were pointed away from
where she was standing.

        As Invitee began walking toward her car, she used a normal gait and was in mid stride
when she fell. She took a step forward with her left foot and it went down further than her
right foot, disrupting her walking. As a result, she pitched forward. Invitee claimed that she
did not slip – she maintained that her foot went into a hole or drop-off and she fell forward.
The record contains a photo depicting the area of the fall, located near the edge of the
walkway. As the result of her fall, Invitee sustained injuries, primarily a four-part fracture
of the right proximal humerus. After hospitalization and surgery, she incurred medical
expenses of approximately $52,000.

       On November 29, 2011, Invitee and her husband, Benny Christian (collectively, “the
Christians”), sued Owner for injuries Invitee sustained when she fell. The Christians averred
that Owner “had a duty to maintain its premises in a reasonably safe condition for its invitees,
including a duty of providing adequate parking area lighting.” The complaint asserted that

       1
           “New, big street lighting” has since been installed.

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Owner breached its duty to Invitee when “it failed to maintain its premises appropriately, and
thereby either creating or allowing an unreasonably dangerous condition to exist” by failing
“to provide any lighting for the steps and sidewalk.” Owner admitted that there was no
lighting to illuminate the walkway or parking lot because the bulbs “apparently” had burned
out. Owner later filed a motion for summary judgment seeking dismissal of the action setting
forth three arguments: (1) that it had no notice that the lights in question were out; (2) that
it owed no duty to Invitee; and (3) Invitee was more than 50 percent at fault for her injuries.

        The Owner’s representative, Traci Dower,2 was in charge of the event at the Lodge
on the night Invitee fell. Ms. Dower, a partner in Owner, opened and closed the facility that
evening. She recalled flipping on “some switches” but as far as actually knowing what
lights came on, she asserted a lack of awareness. Ms. Dower testified that prior to Invitee’s
fall, she became aware the lights at issue were not on. She related that she looked for the
switch for the outside lights but could not find it. Ms. Dower then contacted the Hampton
Inn to inquire about how to turn the lights on. She was told there was not a switch for the
lights in question and that they should come on automatically. When asked specifically what
led her to make the call to the Hampton Inn, Ms. Dower responded: “I don’t remember. I
had been there a while. I don’t know if when the door opened I realized it was dark outside,
but I went to turn and try to find those lights and couldn’t find the switch.” Her call to the
Hampton Inn took place prior to Invitee’s fall.

        The day after the accident, workers arrived at the Lodge to test the outdoor lighting
– lights activated by photocell that are supposed to come on at night and go off at dawn. It
was discovered that multiple exterior bulbs, including the lights in question, were burned out,
requiring the purchase of seven two-pack containers of flood lights to replace all the
inoperative bulbs.

       The record reveals that Owner did not have any written plan or policy regarding the
inspection or maintenance of the outdoor lighting fixtures at the Lodge. No logs or other
documentation was maintained regarding inspections of the Lodge. Its housekeeping staff
did not and was not expected to inspect the operation of the exterior light fixtures. Three
employees of other entities operated by Owner claimed to drive by and check the Lodge on
occasion. Sherry Muse, the general manager at the nearby Hampton Inn, claimed to
sometimes drive around the Lodge and inspect it as “just kind of a general thing.” However,
she admitted that she does not check the Lodge’s outside light fixtures and that the only way
she would know that the lights in question were out is if somebody happened to tell her or
she was out at night and just happened to notice. She also acknowledged it could be difficult


        2
          Ms. Dower “volunteered” the Lodge for the cancer event. She testified in her deposition that prior
to the night in question, she had been to the Lodge about twenty times.

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to see at night at the Lodge if the lights in question were not on. Donald Brown, a
maintenance man for Ayers Realty, claimed to drive around the facility occasionally while
on outings with his family, but he admitted that he performs no regular inspection of the
Lodge or its outdoor lighting. Jimmy Daugherty, the maintenance supervisor for another
Ayers entity, claimed to drive by the Lodge on occasion, but he admitted he makes no regular
trips for the purpose of inspecting the Lodge or its outdoor lighting. Mr. Daugherty testified
that there were five corners of the Lodge with light fixtures on photocells.

       The trial court concluded that there was insufficient evidence regarding Owner’s
notice of the alleged dangerous condition. The court held that its finding rendered moot the
other claimed bases for Owner’s motion. The order specifically stated as follows:

       The defendant’s Motion for Summary Judgment is GRANTED finding that the
       defendant has, pursuant to Tenn. Code Ann. § 20-16-101(2), demonstrated to
       the Court that the nonmoving party’s evidence is insufficient to establish an
       essential element of the nonmoving party’s claim. Specifically, the Court finds
       that the record is void of sufficient evidence regarding the defendant’s notice
       of the alleged dangerous condition. The Court finds that there is no genuine
       issue as to any material fact and that the defendant is entitled to a judgment as
       a matter of law. The defendant is hereby dismissed with prejudice.

       Finding this way, the Court renders the other bases for the defendant’s motion
       for summary judgment, specifically that (1) Mrs. Christian was more than 50%
       at fault for her injuries and that (2) the plaintiffs cannot show the essential
       element of duty, moot.

The Christians filed a timely notice of appeal.


                                         II. ISSUE

       We consolidate and restate the issues raised on appeal as follows:

       Whether the trial court erred in granting the motion for summary judgment in
       favor of Owner.


                             III. STANDARD OF REVIEW

       This lawsuit was filed on November 29, 2011. The dispositive motion is therefore

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governed by Tennessee Code Annotated section 20-6-101: “In motions for summary
judgment in any civil action in Tennessee, the moving party who does not bear the burden
of proof at trial shall prevail on its motion for summary judgment if it:

       (1) Submits affirmative evidence that negates an essential element of the
       nonmoving party’s claim; or

       (2) Demonstrates to the court that the nonmoving party’s evidence is
       insufficient to establish an essential element of the nonmoving party’s claim.

Tenn. Code Ann. § 20-16-101(2).

       A trial court’s decision to grant a motion for summary judgment presents a question
of law. We therefore review the trial court’s grant of summary judgment de novo with no
presumption of correctness. See City of Tullahoma v. Bedford Cnty., 938 S.W.2d 408, 412
(Tenn. 1997). We must view all of the evidence in the light most favorable to the nonmoving
party and resolve all factual inferences in the nonmoving party’s favor. Martin v. Norfolk
S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn.
1999); Muhlheim v. Knox Cnty. Bd of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the
undisputed facts support only one conclusion, then the court’s summary judgment will be
upheld because the moving party was entitled to judgment as a matter of law. See White v.
Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153
(Tenn. 1995).

                                   IV. DISCUSSION

      In the instant case, the trial court awarded summary judgment to Owner upon
determining that there was insufficient evidence regarding Owner’s notice of the alleged
dangerous condition. The Christians contend that Owner had both actual and constructive
knowledge that the lights in question were not working prior to Invitee’s fall.

      A plaintiff seeking recovery under a premises liability theory cannot succeed in the
absence of any of the following:

       (1) a duty of care owed by the defendant to plaintiff; (2) conduct by the
       defendant falling below the 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.

Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). In addition to the

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elements of negligence, a plaintiff must also establish the existence of a dangerous or
defective condition that:

       (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,
       that the owner had actual or constructive notice that the condition existed prior
       to the accident.

Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004) (citations omitted).

       “Actual notice” is defined as “knowledge of facts and circumstances sufficiently
pertinent in character to enable reasonably cautious and prudent persons to investigate and
ascertain as to the ultimate facts.” Kirby v. Macon Cnty., 892 S.W.2d 403, 409 (Tenn. 1994).
The report of a dangerous condition places a burden on a defendant to investigate and
determine the extent of the problem. Johnson v. Knox Cnty. Bd. of Educ., No. E2003-00248-
COA-R3-CV, 2003 WL 21516217, at *2 (Tenn. Ct. App. June 30, 2003). “Constructive
notice” is defined as “‘information or knowledge of a fact imputed by law to a person
(although he may not actually have it) because he could have discovered the fact by proper
diligence, and his situation was such as to cast upon him the duty of inquiring into it.’”
Hawks v. City of Westmoreland, 960 S.W.2d 10, 15 (Tenn. 1997)(quoting Kirby, 892 S.W.2d
at 409). Specifically addressing constructive notice, a plaintiff can establish it in one of three
ways. First, the plaintiff may demonstrate that the owner or operator of the premises caused
or created the condition. See Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989).
Second, if a third party caused or created the dangerous condition, the plaintiff may prove
constructive notice by evidence that the condition “existed for a length of time” that the
owner/occupier “in the exercise of reasonable care, should have become aware of that
condition.” Elkins v. Hawkins Cnty., No. E2004-02184-COA-R3-CV, 2005 WL 1183150,
at *4 (Tenn. Ct. App. May 19, 2005). Third, the plaintiff may show constructive notice by
proving that “a pattern of conduct, recurring incident, or general continuing condition”
caused the dangerous condition. Blair, 130 S.W.3d at 765-66. All three methods of proving
constructive notice are related to the defendant’s superior knowledge of the premises.
McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980).

       In cases involving premises liability, “the premises owner has a duty to exercise
reasonable care under all circumstances to prevent injury to persons lawfully on the
premises.” Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App. 1999) (citing Eaton v.
McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994)). For a plaintiff to prevail in such a case, he
or she must prove that “the injury was a reasonably foreseeable probability and that some
action within the defendant’s power more probably than not would have prevented the
injury.” Dobson, 23 S.W.3d at 331. The risk of harm is foreseeable when “a reasonable

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person could foresee the probability of its occurrence or if the person was on notice that the
likelihood of danger to the party to whom is owed a duty is probable. Downs ex rel. Downs
v. Bush, 263 S.W.3d 812, 820 (Tenn. 2008) (citations omitted). The foreseeability of harm
is to be determined as of the time the acts or omissions alleged to be negligent occurred. Doe
v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992).

      In prior cases, we have addressed the duty of care placed on a premises owner as
follows:

       This duty is based upon the assumption that the owner has superior knowledge
       of any perilous conditions that may exist on the property. See Kendall Oil Co.
       v. Payne, 293 S.W.2d 40, 42 (Tenn. Ct. App. 1955). The duty includes the
       obligation of the owner to maintain the premises in a reasonably safe
       condition, and to remove or warn against latent or hidden dangerous conditions
       of which the owner is aware or should be aware through the exercise of
       reasonable diligence. Eaton, 891 S.W.2d at 593-94. However, our Supreme
       Court has held that a duty may exist even where the injury-causing condition
       is alleged to be open and obvious to the plaintiff . . . the duty must be analyzed
       with regard to foreseeability and gravity of harm, and the feasibility and
       availability of alternative conduct that would have prevented the harm. Coln
       v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998) . . . Only after a duty is
       established does comparative fault come into play. Id. at 42.

Green v. Roberts, 398 S.W.3d 172, 177 (Tenn. Ct. App. 2012).

       The duty of ordinary care on the part of business owners includes the provision of
adequate lighting. See Heggs v. Wilson Inn Nashville-Elm Hill, Inc., No. M2003-00919-
COA-R3-CV, 2005 WL 2051287, at *6 (Tenn. Ct. App. Aug. 25, 2005); Thompson v. Ruby
Tuesday, Inc., No. M2004-01869-COA-R3-CV, 2006 WL 468724, at *10 (Tenn. Ct. App.
Feb. 27, 2006); see also C.J.S. Negligence § 580 (2005) (stating that “where the owner of
property has undertaken to light an area of his or her property he is required to exercise
reasonable care to provide adequate lighting.”).

        In this case, Owner’s representative in charge of the Lodge on the evening in question
had actual knowledge, prior to Invitee’s fall, of the lights in question being inoperative. By
showing actual knowledge, a plaintiff demonstrates that the owner had a duty to act
reasonably under the circumstances and remedy the condition that caused injury to the
plaintiff. Blair, 130 S.W.3d at 766. Under the facts of this case, it is a question for a jury
as to whether Owner, having knowledge, took sufficient action or steps in response, or
whether Owner’s failure to take further action was reasonable under the circumstances.

                                              -7-
Another genuine issue of material fact present in this matter is whether Owner could or
should have become aware of the dangerous condition through the exercise of reasonable
care, such as inspecting and testing the operation of all the lights at the Lodge as well as
recognizing the lack of lighting in the parking lot. The Owner was in the best position to
prevent falls in the parking area based on its superior knowledge of conditions on the
property. There is material evidence in this case from which the trier of fact could conclude
that a dangerous condition existed for sufficient time and under circumstances that one
exercising reasonable care and diligence would have discovered the danger. All these issues
should be determined by a jury.


                                   V. CONCLUSION

      The judgment of the trial court is reversed, and the case is remanded for further
proceedings. Costs of the appeal are assessed to the appellee, Ayers, L.P. d/b/a Ms. Lassie’s
Lodge.


                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




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