                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                December 13 , 2010 Session

             KATHY YOUNG ET AL. v. FIRST BANK OF TENNESSEE

                      Appeal from the Circuit Court for Rhea County
                       No. 02-27191    Thomas W. Graham, Judge


                  No. E2010-01434-COA-R3-CV - Filed January 28, 2011


Kathy Young (“the plaintiff”) stepped backward onto an elevated curb as she opened the
driver’s door of her vehicle to leave the parking lot of First Bank of Tennessee. She was
injured when she tripped over the curb and fell into the shrubbery that bordered the parking
lot. She and her husband1 filed this action alleging that First Bank was negligent in creating
or maintaining a dangerous condition. First Bank filed a motion for summary judgment
which the trial court granted. The plaintiff appeals. We affirm.

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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Larry G. Roddy, Dayton, Tennessee, for the appellants, Kathy Young and husband Donny
Young.

N Mark Kinsman and J. Chad Hogue, Chattanooga, Tennessee, for the appellee, First Bank
of Tennessee.

                                           OPINION

                                                 I.

      The incident that gave rise to this action happened in the parking lot of First Bank of
Tennessee located off Third Street in Dayton. On December 23, 2008, the plaintiff went to


       1
        We have defined Mrs. Young as “the plaintiff.” We do so for ease of reference only. We fully
recognize that Mr. Young is a plaintiff in the pursuit of a derivative claim.
First Bank to make a payment for her sister. She turned off Third Street into the parking lot
and then immediately turned left into the parking space situated closest to Third Street. A
photograph of the parking space, with the plaintiff’s minivan parked in the same space, was
made an exhibit to the plaintiff’s deposition. The parties acknowledge that the exhibit is a
true and accurate depiction of the space and adjacent environs as it existed on the day of the
accident; however, the plaintiff was unable to say whether the photograph accurately reflects
how her vehicle was parked in that space on the day of the accident.2 The photograph was
taken by the plaintiff’s representative. It is depicted in Figure 1. below.




                                                 Figure 1.

        The bank is the building directly in front of the plaintiff’s vehicle. A sidewalk runs
along the side of the building perpendicular to the vehicle (“the front sidewalk”). Third
Street runs to the left of and parallel to the length of the minivan. A second sidewalk (“the
Third Street sidewalk”) runs parallel to Third Street and parallel to the parking space and
perpendicular to the front sidewalk. To the left of the parking space is a raised bed of
shrubbery situated between the parking space and the Third Street sidewalk. The shrubbery
bed is separated from the paved parking lot by an elevated curb. The curb extends from the
Third Street sidewalk to the front sidewalk. The curb runs parallel to Third Street from the
front sidewalk approximately the length of an automobile and then curves toward Third
Street until it hits the Third Street sidewalk. The curb is the same color as the pavement,
except for a short section next to the Third Street sidewalk which is painted yellow.



       2
           The plaintiff agreed that the parking space shown in the photograph was the one she occupied that
day.

                                                     -2-
       The following facts describing the actual accident are taken from the bank’s statement
of undisputed facts filed in support of its motion for summary judgment:

              [The plaintiff] visited this branch approximately one time per
              week, and had been doing so for several years.

              . . . [W]hen she visited the bank, she always parked in the
              parking lot in which she fell [,although she did not remember
              ever parking in the actual space where her fall occurred].

              On the day of the accident, [the plaintiff] pulled into the first
              parking space.

              Then she opened her door and moved toward the rear of the car
              so that she could shut the door.

              [The plaintiff] went into the bank to conduct her business and
              returned to the parking lot.

              When [the plaintiff] returned to her vehicle, she walked between
              her vehicle and the curb and turned to face the front driver door.

              [The plaintiff] had her vehicle remote in her right hand and
              reached for the door handle with her left hand.

              As she pulled the door towards her, she stepped back and
              stepped onto the curb.

              [The plaintiff] . . . heard . . . three popping sounds, and she fell
              into the bushes adjacent to her vehicle.

              When she arrived at First Bank, [the p]laintiff did not see the
              curb in question.

              [The p]laintiff admits that she would have seen the curb if she
              had been looking for it.

                                           *   *     *




                                               -3-
               During the time when she began to open the door and she
               stepped back, she was facing her van.

               After exiting her vehicle, [the plaintiff] admits that she saw the
               bushes to her left, but denies that she saw the curb in question,
               despite the fact that she would have walked parallel to this curb
               for several feet in order to reach the sidewalk.

                                            *   *     *

               [The p]laintiff was facing the door of her van before the fall.

               Due to the position of her body in front of the door, it was
               impossible for her to open her vehicle’s door without stepping
               backward.

               Rather than move to the rear of the vehicle and swing the door
               in front of her, [the p]laintiff stepped backward without looking
               to see whether she could make the movement safely.

(Paragraph numbering and record citations omitted). These facts are taken from the
plaintiff’s deposition. The plaintiff did not challenge the bank’s statement of facts in the trial
court. Her brief on appeal essentially recites the bank’s statement of undisputed facts as the
facts of the case.

      The trial court’s order sustaining the bank’s motion for summary judgment, states as
follows:

               [T]he [p]laintiff simply can not prove at least two (2) of the five
               (5) essential elements of this negligence action, to-wit:

               First, with regard to duty, a business owner is not required to
               warn invitees such as the [p]laintiff of open and obvious dangers
               such as the curb in this case which can be easily stepped over or
               around and which is common to many parking areas. In fact,
               this [p]laintiff had been in this parking lot on numerous
               occasions over the years and was quite familiar with its
               construction. Moreover, it is clear from the contemporaneously
               taken photo of the subject curb that the curb was not obstructed
               from normal vision by the shrubbery contained therein. (See

                                                -4-
              Exhibit 4 to Plaintiffs’ March 24, 2010, deposition. [Figure 1.
              above].)

              Secondly, even if some duty to warn such as painting       the curb
              existed [as alleged by the plaintiff], this [p]laintiff    was not
              looking where she stepped when she blindly backed          into the
              curb. Therefore the alleged failure to warn was not a      cause in
              fact. [The p]laintiff’s failure to see and be aware of     the area
              where she stepped was the cause of her injury.

              Finally, even it the [bank] had not negated duty and cause in
              fact, this Court finds no reasonable person could conclude based
              on the facts in this case, that [the bank’s] alleged failure to warn
              was the primary negligent act causing the subject injury. The
              facts establish [the p]laintiff’s failure to observe what was there
              to be seen was the primary cause of her fall and resulting injury
              and was at least fifty percent (50%) of the fault in this case.

(Headings in document and footnote omitted).

                                              II.

       The sole issue the plaintiff identifies for appeal is whether “the trial court err[ed] in
granting defendant’s motion for summary judgment.”

                                              III.

      The Supreme Court in a 2009 decision articulated the standard for reviewing summary
judgment:

              The scope of review of a grant of summary judgment is well
              established. Because our inquiry involves a question of law, no
              presumption of correctness attaches to the judgment, and our
              task is to review the record to determine whether the
              requirements of Rule 56 of the Tennessee Rules of Civil
              Procedure have been satisfied.

              A summary judgment may be granted only when there is no
              genuine issue of material fact and the moving party is entitled to
              judgment as a matter of law. The party seeking the summary

                                              -5-
              judgment has the ultimate burden of persuasion that there are no
              disputed, material facts creating a genuine issue for trial and that
              he is entitled to judgment as a matter of law. If that motion is
              properly supported, the burden to establish a genuine issue of
              material fact shifts to the non-moving party. In order to shift the
              burden, the movant must either affirmatively negate an essential
              element of the nonmovant’s claim or demonstrate that the
              nonmoving party cannot establish an essential element of his
              case. . . .

              Courts must view the evidence and all reasonable inferences
              therefrom in the light most favorable to the non-moving party.
              A grant of summary judgment is appropriate only when the facts
              and the reasonable inferences from those facts would permit a
              reasonable person to reach only one conclusion. In making that
              assessment, th[e] Court must discard all countervailing
              evidence.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363 -64 (Tenn. 2009)(citations
and internal quotation punctuation omitted).

                                              IV.

        The thrust of the plaintiff’s challenge to summary judgment is simply this: when the
facts and all reasonable inferences therefrom are taken in a light most favorable to her, and
the countervailing evidence is discarded, a reasonable trier of fact could conclude that the
bank was negligent. Her summary of the facts that would supposedly allow that conclusion
is as follows:

              The deposition of [the] plaintiff and the photographs clearly
              show that the parking lot space in which [the] plaintiff parked is
              near an elevated curb. . . . [V]iew of the curb is partially
              obstructed by bushes. . . . [T]he curb is the same color as the
              pavement. The curb is difficult to see when pulling into the
              space due to the bushes and the camouflage effect of the color
              of the pavement and the curb. . . . [H]aving a curb partially
              painted yellow and then end the yellow paint leaving the balance
              of the curb unpainted and the same color as the pavement
              creates an[] illusion that the curb ends with the yellow paint.



                                              -6-
        We disagree with the plaintiff. As the trial court correctly notes, there are two
dispositive facts as to which there is no countervailing evidence and no favorable inferences
to be drawn in the plaintiff’s favor. The first is that “it is clear from the . . . photo[graph] of
the subject curb that the curb was not obstructed from normal vision by the shrubbery
contained therein. (See [Figure 1. reproduced above]).” The second fact is that “even if
some duty to warn such as painting the curb existed [as alleged by the plaintiff], this
[p]laintiff was not looking where she stepped when she blindly backed into the curb.” These
undisputed facts compel the conclusion that if the plaintiff had looked – which she
admittedly did not – she would have seen the curb, and that the cause of her injury was not
the bank’s alleged failure to paint the curb or otherwise call attention to it, but the plaintiff’s
failure to look where she was stepping.

        The plaintiff argues that Allman v. Hut’s, Inc, No. W2000-01829-COA-R3-CV, 2001
WL 523953 (Tenn. Ct. App. W.S., filed May 16, 2001) compels reversal of the summary
judgment. Allman did involve a patron’s fall over a small elevated curb, but there the
similarity ends. The curb in Allman was situated directly in the sidewalk in the path of foot
traffic “in front of the main entrance . . . where Hut’s invited and expected patrons to enter
and exit.” Id. at *5. The curb in the present case was not in the traffic path, and the bank
could not have expected that a patron would walk backward over it without looking. Also,
in Allman, there were numerous distractions at the entrance to the business that “drew the
attention of patrons away from the curb.” Id. There are no such distractions even alleged
in the present case. Accordingly, Allman does not require reversal of the summary
judgment.

        Allman recognized that questions of duty, breach and causation, although normally
questions of fact, “become questions of law. . . when the facts and inferences drawn
therefrom permit reasonable persons to reach only one conclusion.” Id. (citing Kelley v.
Johnson, 796 S.W.2d 155, 157 (Tenn. Ct. App. 1990)). We hold that the facts and
inferences therefrom in the present case permit reasonable persons to reach only one
conclusion, i.e., that the curb was visible and gave rise to no duty to warn and further that the
plaintiff’s failure to look where she was going was the cause of her accident rather than
breach of any duty to warn that, theoretically, may have existed. In the absence of any reason
for assigning fault to the bank, we decline to decide whether, if the bank is assumed to be at
fault, the plaintiff was 50% or more at fault.




                                                -7-
                                         V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Kathy Young and her husband, Donny Young. This case is remanded, pursuant
to applicable law, for collection of costs assessed below.


                                               _______________________________
                                               CHARLES D. SUSANO, JR., JUDGE




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