                                                                                       06/07/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 8, 2019 Session

       SHANERA JONES v. PUBLIX SUPERMARKET, INC. ET AL.

                Appeal from the Circuit Court for Davidson County
                No. 16C-2594      Amanda Jane McClendon, Judge
                      ___________________________________

                          No. M2018-01672-COA-R3-CV
                      ___________________________________

This is a premises liability case. Appellant slipped and fell in a clear substance on the
floor of Appellee Publix Supermarket and filed suit against the grocery chain. Appellee
filed a motion for summary judgment, which the trial court granted, finding that
Appellant failed to show that Appellee had actual or constructive notice of the dangerous
condition. Appellant appeals. Discerning no error, we affirm the trial court’s grant of
summary judgment.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S. and CARMA D. MCGEE, J., joined.

Joseph A. Weir, Phillip G. Gombar, Smyrna, Tennessee, for the appellant, Shanera Jones.

Steven Douglas Parman, Nashville, Tennessee, for the appellees, Publix Supermarkets,
Inc., and Publix Tennessee, LLC.

                                       OPINION

                                    I. Background

       On October 6, 2015, Appellant Shanera Jones was shopping at the Publix
Supermarket on Concord Road in Davidson County. Ms. Jones used a hand-held basket
while shopping. After procuring a few items, she proceeded to the seafood department;
as Ms. Jones rounded a corner from an aisle, she slipped on “liquid that was present on
the floor” and fell. Ms. Jones was carrying her basket on her left arm and attempted to
break her fall with her right arm. Within seconds, Ms. Jones stood up from the floor and
continued shopping. Store video captured the entire event. By the time Ms. Jones was
checking out, Michael Goldfarb, an assistant customer service manager, had been notified
of the incident. He approached Ms. Jones to ask if she was okay. Ms. Jones did not state
that she was injured, but merely explained that she fell by the seafood department. When
Mr. Goldfarb asked if she wanted to fill out an incident report, Ms. Jones declined.
However, she returned to the store the next day to fill out a report.

        Prior to Ms. Jones’s fall, store video shows several customers traversing the area
where Ms. Jones’s fell. Approximately two minutes before the fall, the video shows a
possible source of a small amount of liquid on the floor. The video shows a toddler in a
“kiddy cart” in the area. The child appears to drink from a container (sippy cup/bottle)
and then drop the container inside the cart. Any liquid inside the container could have
fallen through the wire bottom of the cart onto the floor. Ms. Jones disputes that this was
the source of the substance on the floor because she described the liquid as “oily.”
However, Ms. Jones does not identify another possible source for the liquid.

        During discovery, Ms. Jones deposed Donald Shaw, a Publix employee who was
working in the seafood department on the day of the incident. Mr. Shaw testified that he
was waiting on a customer when Ms. Jones fell, but he did not witness the fall. However,
he “heard the commotion” and saw her stand up. Mr. Shaw testified that he immediately
left the seafood counter and went to the spot where Ms. Jones fell in an attempt to help
her, but she had already exited the area when he arrived. Indeed, the store video footage
shows a Publix employee behind the seafood counter when Ms. Jones fell. Shortly after
Ms. Jones left the area, the same Publix employee arrived at the location where she fell.
Upon watching the video, Mr. Shaw confirmed that he was that Publix employee. In the
video, Mr. Shaw can be seen looking around and calling for another person to come to
the area. Mr. Shaw stood at the location where Ms. Jones fell until another employee,
Nawzad Ahmad, came over with paper towels to clean the liquid from the floor.1
According to the video, Mr. Ahmad brought paper towels and cleaned the liquid up two
minutes after Ms. Jones fell. Mr. Shaw testified that he did not feel the substance, but he
observed that “[t]here was a little bit of water . . . not a puddle.” Mr. Shaw clarified that
it “was a clear liquid.” He also testified that he could not recall seeing anything spilled in
that area prior to Ms. Jones’s fall.

        After the incident, Mr. Goldfarb and Tim Cochran, the store manager, inspected
the area where Ms. Jones fell. In his deposition, Mr. Cochran testified that he looked at
the floor and noticed “a heel mark, like a scuff mark,” and that he “check[ed] the area for
any moisture” but did not feel any kind of substance on the floor.2 Mr. Cochran also
testified that, prior to Ms. Jones’s fall, he was not aware of any reports, from an employee
or a customer, of a spill or wet substance on the floor in that area.

       1
          Ms. Jones also deposed Mr. Ahmad who could not recall the incident.
       2
          According to the store video, Messrs. Goldfarb and Cochran inspected the area after Mr. Ahmad
cleaned the substance from the floor.
                                                 -2-
        On September 29, 2016, Ms. Jones filed suit in Davidson County Circuit Court
(“trial court”) against Publix Super Markets, Inc. and Publix Tennessee, LLC (together
“Publix,” or “Appellees”) alleging negligence and seeking damages for injuries she
allegedly sustained in the October 6, 2015 fall. On October 20, 2016, Publix answered
denying any liability. On March 12, 2018, Publix filed a motion for summary judgment.
Ms. Jones filed a response in opposition to the motion. The trial court heard the motion
for summary judgment on May 11, 2018. On August 21, 2018, the trial court issued a
memorandum opinion and order granting Appellees’ motion for summary judgment. Ms.
Jones appeals.

                                       II. Issues

   Ms. Jones raises two issues, which we restate as follows:

   1. Whether the trial court erred in determining that Publix did not have constructive
      notice of the dangerous condition that caused Appellant to fall.

   2. Whether the trial court erred in determining that no genuine issues of fact exist in
      this case.

                               III. Standard of Review

       A trial court’s decision to grant a motion for summary judgment presents a
question of law. Therefore, our review is de novo with no presumption of correctness
afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997). This Court must make a fresh determination that all requirements of Tennessee
Rule of Civil Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-
Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary
judgment is made, the moving party has the burden of showing that “there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. Despite Appellant’s contention that there are disputed material
facts so as to preclude summary judgment, we disagree. As set out below, the sole issue
before us is whether Publix had constructive notice of the liquid substance on the floor.
The Tennessee Supreme Court has explained that when the party moving for summary
judgment does not bear the burden of proof at trial, “the moving party may satisfy its
burden of production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264
(Tenn. 2015) (italics omitted). Furthermore,

      “When a motion for summary judgment is made [and] . . . supported as
                                    -3-
      provided in [Tennessee Rule 56],” to survive summary judgment, the
      nonmoving party “may not rest upon the mere allegations or denials of [its]
      pleading,” but must respond, and by affidavits or one of the other means
      provided in Tennessee Rule 56, “set forth specific facts” at the summary
      judgment stage “showing that there is a genuine issue for trial.” Tenn. R.
      Civ. P. 56.06. The nonmoving party “must do more than simply show that
      there is some metaphysical doubt as to the material facts.” Matsushita
      Elec. Indus. Co., [Ltd. v. Zenith Radio Corp.], 475 U.S. [574,] 586, 106 S.
      Ct. 1348 [(1986)]. The nonmoving party must demonstrate the existence of
      specific facts in the record which could lead a rational trier of fact to find in
      favor of the nonmoving party.

Rye, 477 S.W.3d at 265.

                                       IV. Analysis

        In order to prevail on a negligence claim, a plaintiff must provide evidence to
establish the following elements: (1) a duty of care defendant owed to plaintiff; (2) a
breach of that duty of care; (3) an injury or loss; (4) cause in fact; and (5) proximate or
legal cause. King v. Anderson Cnty., 419 S.W.3d 232, 246 (Tenn. 2013). In premises
liability actions, such as the case at bar, a premises owner’s duty is to exercise
“reasonable care with regard to social guests or business invitees in the premises. The
duty includes the responsibility to remove or warn against latent or hidden dangerous
conditions on the premises of which one was aware or should have been aware through
the exercise of reasonable diligence.” Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998).
Liability in premises liability cases stems from superior knowledge of the condition of
the premises. McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). Nonetheless,
“[b]usiness proprietors are not insurers of their patrons’ safety. However, they are
required to use due care under all the circumstances.” Blair v. W. Town Mall, 130
S.W.3d 761, 764 (Tenn. 2004) (citing Martin v. Washmaster Auto Ctr., U.S.A., 946
S.W.2d 314, 318 (Tenn. Ct. App. 1996)). Accordingly, due to a property owner’s
superior knowledge, a property owner has “the responsibility of either removing, or
warning against, any dangerous condition on the premises of which the property owner is
actually aware or should be aware through the exercise of reasonable diligence.” Parker
v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014) (emphasis
added) (citing Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994)). As the Tennessee
Supreme Court has made clear, for a plaintiff to prevail on a claim of premises liability,
in addition to the elements of negligence, the plaintiff must establish that:

      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,
                                          -4-
          or his agent, that the owner or operator had actual or constructive notice
          that the condition existed prior to the accident.

Blair, 130 S.W.3d at 764.

        Here, the trial court granted Publix’s motion for summary judgment on its finding
that Ms. Jones failed to provide facts sufficient to show Publix’s actual or constructive
notice of liquid on the floor. The Tennessee Supreme Court defines “actual notice” 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 Co., 892 S.W.2d 403, 409 (Tenn. 1994) (quoting Texas Co. v.
Aycock, 227 S.W.2d 41, 46 (Tenn.1950)). “‘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.’” Parker, 446
S.W.3d at 351 (citing Hawks v. City of Westmoreland, 960 S.W.2d 10, 15 (Tenn. 1997)).
To establish constructive notice, the plaintiff must show “proof that the dangerous or
defective condition existed for such a length of time that the defendant, in the exercise of
reasonable care, should have become aware of the condition.” Blair, 130 S.W.3d at 764.
“[W]here liability is based on constructive knowledge of the dangerous or defective
condition, there must be material evidence from which the trier of fact could conclude the
condition existed for sufficient time and under such circumstances that one exercising
reasonable care and diligence would have discovered the danger.” Paradiso v. Kroger
Co., 499 S.W.2d 78, 79 (Tenn. Ct. App. 1973).

       Based on the foregoing, in order to prevail on her negligence claim, Ms. Jones
would have to provide sufficient evidence to, inter alia, establish that Publix breached its
duty of care to her. As explained, supra, Publix had “the responsibility of either
removing, or warning against, any dangerous condition on the premises of which [Publix]
[was] actually aware or should [have] be[en] aware through the exercise of reasonable
diligence.” Parker, 446 S.W.3d at 350 (emphasis added) (citing Eaton, 891 S.W.2d at
594). Ms. Jones does not offer evidence to dispute the Publix employees’ deposition
testimony that there was no actual notice of the substance on the floor. Therefore, to
prevail on her negligence claim, Ms. Jones must provide sufficient evidence to establish
that Publix had constructive knowledge of the dangerous condition, i.e., “the dangerous
or defective condition existed for such a length of time that [Publix], in the exercise of
reasonable care, should have become aware of the condition.” Blair, 130 S.W.3d at 764.

        In its motion for summary judgment and on appeal, Publix argues that there is no
evidence that it had actual or constructive notice of the substance on the floor.
Specifically, concerning constructive notice, Publix maintains that the video evidence
undisputedly established that there was an insufficient length of time between the toddler
spilling the liquid and Ms. Jones’s fall to establish that Publix “should have become
                                           -5-
aware of the condition.” Id. We have reviewed the video evidence. The footage shows a
child in a shopping cart appearing on camera at 17:46:18; the child plays with the
bottle/sippy cup and drops it in the cart twice before leaving the camera view at 17:47:14.
From 17:47:14 until Ms. Jones appears on camera at 17:48:50, six people are seen
traversing the area where Ms. Jones fell, without slipping or falling. None of these
people are Publix employees. Ms. Jones appears in camera view at 17:48:50 and falls at
17:48:51. Given the truncated time between these events, Publix argues, there was
nothing to put it on notice of the dangerous condition such that Publix could have
reasonably taken action to clean up the spill.

        Again, Ms. Jones does not argue that Publix had actual notice of the dangerous
condition, only that it had constructive notice. Ms. Jones relies on Benson v. H.G. Hill
Stores, Inc., 699 S.W.2d 560 (Tenn. Ct. App. 1985), in support of her argument. In
Benson, the plaintiff was walking by the check-out lanes at closing when she slipped and
fell on the freshly waxed floor. Id. at 561. The plaintiff testified that there were no other
customers in the store, but that her fall was in plain view of two store employees. Id.
The trial court granted a directed verdict in favor of the defendant grocery store,
concluding that the plaintiff failed to establish that the grocery store caused the dangerous
condition or had notice of same. Id. at 561-62. On appeal, this Court reasoned that a jury
could reasonably infer that the defendant grocery store applied the wet wax to the floor
because grocery store employees regularly apply wet wax to the floors as part of routine
cleaning. Id. at 563. If the jury did not come to this conclusion, this Court reasoned that
the jury could also surmise that the wax was spilled on the floor by either an employee or
a customer. Id. at 564. If the employee spilled the wax, the grocery store would have
knowledge of the dangerous situation. Id. However, the Court reasoned that if a
customer spilled the wax, because there were two employees “a few feet” from the scene,
a reasonable jury could infer that the employees observed or should have observed the
spill, producing constructive notice of the danger. Id.

        Ms. Jones uses Benson for the proposition that, despite a plaintiff having no
corroborating witnesses, a jury could nonetheless make reasonable inferences from a
given set of facts. She argues that “a jury could reasonably infer from the set of facts in
this case that the oily substance that caused Ms. Jones to slip and fall was either spilled
by an employee or by a customer.”3 Ms. Jones also argues that a jury could “reasonably
infer that the presence of Mr. Shaw a mere ten feet away from the site of [Ms. Jones]’s
accident, as well as the fact that the fall occurred in a ‘high traffic’ area where employees
frequently traveled in order to obtain inventory, that the spillage was observed or should
have been observed by employees of Publix, thereby producing constructive notice of the
dangerous condition.”

        3
         We note that if a reasonable jury could infer that an employee spilled the substance on the floor
that would create an inference that Publix had actual notice of the liquid on the floor, an argument Ms.
Jones does not make.
                                                  -6-
        Benson is factually distinguishable from our case. Here, we do not know the
nature of the substance on the floor. After her fall, Ms. Jones briefly looked at the floor
but did not touch the floor or the substance. Her own testimony was that there were only
“[a] few wet spots” or “little splatters” on the floor, and it was a clear “oily like”
substance. Even viewing these facts in the light most favorable to Ms. Jones, there are no
other alleged facts that support a reasonable conclusion that Publix caused the unsafe
condition or had reason to know about it. In Benson, the plaintiff slipped on wax at
closing time, from which a jury could reasonably infer that the wax was put on the floor
by employees doing routine maintenance at closing time. Here, however, the droplets on
the floor are from an unknown source (although likely a toddler spill). It would be
difficult, therefore, for a jury to reasonably infer that Publix caused the unsafe condition
or, given the truncated time frame discussed, supra, knew about it. It is undisputed that
none of the deposed Publix employees knew the origin of the substance. Mr. Cochran
testified that he was not made aware of any reports of a spill prior to Ms. Jones’s fall.
Similarly, Mr. Shaw testified that he could not recall seeing anything spilled in that area
prior to the fall. Ms. Jones herself admits that she did not see anything on the floor
before she fell. Further, the video footage shows many customers traversing the area
directly before Ms. Jones’s fall, and shows Mr. Shaw distracted with another customer.
This is another way in which this case differs from Benson, where the plaintiff testified
that it was late at night and she did not see any other customers in the store. Here, Ms.
Jones fell at 5:48 p.m. in the middle of a busy shopping period with many other
customers around and Publix employees interacting with those customers. Even if a
customer spilled the substance on the floor, Ms. Jones has not alleged sufficient facts to
demonstrate that there were Publix employees who could have or should have observed
the spill that caused her fall. Therefore, under the undisputed facts of the case, there is no
reasonable inference that Publix had constructive notice of the dangerous condition, i.e.,
the substance on the floor, thereby distinguishing this case from Benson.

        Based on the foregoing discussion, Publix satisfied its summary judgment burden
by: (1) affirmatively negating an essential element of Ms. Jones’s claim; and (2)
demonstrating that Ms. Jones’s evidence at the summary judgment stage is insufficient to
establish Publix’s negligence. Specifically, Publix affirmatively negated the essential
element of Ms. Jones’s negligence claim because it showed that Publix did not breach its
duty to her—the substance on the floor did not exist for such a length of time that Publix,
in the exercise of reasonable care, should have become aware of the condition. See Blair,
130 S.W.3d at 764. The video footage shows six people walking in the same location
where Ms. Jones fell within a minute and a half before her fall; none of these people
slipped or showed any sign that there was a slippery substance on the floor.

       To survive summary judgment, Ms. Jones was required to “set forth specific facts”
showing that there was a genuine issue for trial. Rye, 477 S.W.3d at 265. She has failed
to do so. In essence, the only “disputed” facts Ms. Jones alleges are: (1) the substance on
                                           -7-
the floor was “oily,” so it was not water; (2) because children do not drink oil, the child
dropping the sippy cup or bottle was not the cause of the substance on the floor; and (3)
there was a nearby floral case that was known to leak water.4 Even if the child with the
sippy cup/bottle was not the cause of the liquid on the floor, Ms. Jones has not set forth
any specific facts to establish that the substance, whatever it was, had been on the floor
for a sufficient time to charge Publix with constructive notice of it. See Id. Regardless,
the nature of the substance is irrelevant to our inquiry here; to prove negligence, Ms.
Jones must show that the substance, whatever it was, had been on the floor for an
extended period of time such that Publix should have known about it and cleaned it up.
In this regard, Ms. Jones’s allegations are exactly what the Tennessee Supreme Court
warned against in Rye. She has done no more than to show “that there is some
metaphysical doubt as to the material facts,” i.e. there is a metaphysical doubt concerning
the type of substance that was on the floor. Matsushita Elec. Indus. Co., Ltd., 475 U.S.
at 586. We agree with the trial court that “the only evidence suggests that a small amount
of clear liquid was on the floor, and apparently only for a short period of time before [Ms.
Jones] fell.” Therefore, Ms. Jones’s evidence at the summary judgment stage simply
does not show that Publix had constructive notice of the dangerous condition and is,
therefore, insufficient to establish Publix’s negligence.

                                            V. Conclusion

       For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against Appellant, Shanera Jones, for all of which
execution may issue if necessary.


                                                          _________________________________
                                                          KENNY ARMSTRONG, JUDGE




        4
          The floral case argument is a bit illogical because Ms. Jones argues that she slipped in an “oily”
substance, and the testimony from Mr. Ahmad was that the floral case had been known to leak water, not
oil. Further, there is nothing in the record to suggest that the floral case leaked on this occasion.
                                                   -8-
