                                                                                        08/18/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                April 20, 2017 Session

               HOLLY RADER, ET AL. v. RUBY TUESDAY, INC.

                     Appeal from the Circuit Court for Knox County
                        No. 2-302-12     Kristi Davis, Judge


                            No. E2016-01677-COA-R3-CV


Holly Rader (“Plaintiff”) appeals the August 4, 2016 order of the Circuit Court for Knox
County (“the Trial Court”) granting summary judgment to Ruby Tuesday, Inc. (“Ruby
Tuesday”) in this slip and fall action after finding that Ruby Tuesday did not have
superior, actual, or constructive knowledge of the condition that caused Plaintiff’s slip
and fall. We find and hold that Ruby Tuesday did have superior, actual, or constructive
knowledge of the condition that caused the slip and fall and owed a duty to Plaintiff. We,
therefore, vacate the grant of summary judgment and remand this case for further
proceedings.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

Ameesh A. Kherani and David H. Dunaway, LaFollette, Tennessee, for the appellant,
Holly Rader.

Janet Strevel Hayes and Benjamin W. Jones, Knoxville, Tennessee, for the appellee,
Ruby Tuesday, Inc.
                                              OPINION

                                             Background

       Plaintiff sued Ruby Tuesday alleging that she sustained damages as a result of her
slip and fall (“the Accident”) that occurred on June 24, 2011, at the Ruby Tuesday
located on Emory Road in Powell, Tennessee. Plaintiff’s employer, Glaxo Smith Kline,
and its workers’ compensation insurance carrier, Broadspire, were granted leave to
intervene in the suit because the injuries allegedly sustained from the Accident occurred
while Plaintiff was acting in the course and scope of her employment.

       The facts surrounding the Accident are largely undisputed. Plaintiff was working
as a pharmeceutical sales representative for Glaxo Smith Kline. The evening before the
Accident, Plaintiff placed an order with Ruby Tuesday for a carry-out lunch for
approximately 25 to 30 people to be picked up on June 24, 2011, the date of the Accident.
Plaintiff intended to serve the carry-out lunch to a group of doctors and their staff
members upon whom Plaintiff was making a sales call. The carry-out order included
drinks and at least one bag of ice.

       Plaintiff planned to pick up the lunch order around 11 or 11:15 a.m. as she wanted
to be at the doctors’ office before noon on that day. Plaintiff testified that her practice
when placing orders such as this one was to tell Ruby Tuesday that she wanted the food
“earlier” because “they kind of run late on their food.” On the day of the Accident,
Plaintiff called Ruby Tuesday when she “got off the exit” to let them know she was on
her way. She stated that the traffic was “stop and go because the traffic light was not
working . . . .” Plaintiff stated: “I was worried that I might be late, so I didn’t want to get
there have a delay, so I told them, you know, hey, be sure and have my food ready when I
walk in.” Plaintiff asserted that she was not running behind schedule and had not missed
her pick-up window.

       When Plaintiff arrived at the Ruby Tuesday, she entered through the “carry-out
entrance,” told the manager that she was there to pick her order up, and handed the
manager her credit card.1 Plaintiff stated that the manager took the credit card and told
her that her food was “over on the ledge.” The food was in a box. The food order also
included a “couple of gallons of tea,” and “two, maybe more, bags of ice.”

      Plaintiff stated that she picked up the box and a bag of ice to “head for” her car,
and she fell. When asked what caused her to fall, Plaintiff stated: “The water from the
1
  The manager testified that he did not process Plaintiff’s payment and that the bartender would have been
the person to whom Plaintiff handed her credit card. Although this fact is disputed, it is not material to
the issues involved in the suit.
                                                     2
bag of ice.” Plaintiff stated that “there wasn’t any water in the floor” when she entered
the Ruby Tuesday. She further stated that “the bag [of ice], when I felt, it was all water.”
Plaintiff stated: “I was soaked. . . . What I know is I was laying in the floor with water.
There was some ice and I had a big box of food laying on me.” Plaintiff stated that she
was “hurting and in shock and just wanted to get out of there.”

       After her fall, Plaintiff put the food, drinks, and ice into her car with the help of
some Ruby Tuesday employees. Plaintiff then went to the doctors’ office for her sales
call. At the doctors’ office, Plaintiff took some Advil. Plaintiff did not change clothing
prior to making her sales call. Instead, she “turned on the heater real, real high” in her
car.

        James Gordon, III, the manager at the Ruby Tuesday on the day of the Accident,
was deposed. Mr. Gordon testified that condensation from the bag of ice that Plaintiff
picked up dripped on to the floor and this water was what caused Plaintiff to slip and fall.
Mr. Gordon testified that he had assisted with setting out Plaintiff’s carry-out order so it
was ready for pickup and stated that the order “was ready at the time due.” Mr. Gordon
himself placed the ice out with the food. He stated: “the food - - it was - - it was placed
out at the time it was due, and it sat out for quite a while.” Mr. Gordon further stated:

       [Plaintiff] was there for three minutes. She was frantic. She grabbed the
       box. I offered to help. She declined my help, grabbed the bag of ice,
       turned around, the condensation fell in the floor. She slipped and fell. She
       got up quickly, did not want my help. That’s what I recall. That’s what I
       recall.

Mr. Gordon also testified that later that day Plaintiff telephoned and told him that her
knee was swelling and that she was going to seek medical attention.

        On the day of the Accident, after making her sales call, Plaintiff sought medical
attention. Plaintiff stated that the doctor ordered x-rays which showed nothing was
broken. The doctor prescribed an antiinflammatory and told Plaintiff to apply ice and to
rest. Plaintiff continued to have pain, and in June of 2012 she filed the instant suit.

       Ruby Tuesday filed a motion for summary judgment alleging, in part: “The
undisputed material facts, however, demonstrate that no hazard existed sufficient to
trigger a duty of [Ruby Tuesday] to warn Plaintiff of a hazard prior to Plaintiff’s own
actions creating the hazard,” that there was no evidence of a dangerous or defective
condition, and that Plaintiff was more than fifty percent at fault for her injuries. In
support of its motion, Ruby Tuesday submitted the deposition testimony of Plaintiff
wherein Plaintiff testified that the condition that caused her to fall was the water that
                                             3
dripped from the bag of ice when she picked the bag up and that there was no water on
the floor prior to Plaintiff’s picking up the bag of ice.

        In opposition to Ruby Tuesday’s motion for summary judgment Plaintiff pointed
to the deposition testimony of Thad Harshbarger, among other things. Mr. Harshbarger
testified that he is an operating partner for Ruby Tuesday and heads up ten different
restaurants in east Tennessee and Kentucky. Mr. Harshbarger testified that Ruby
Tuesday normally keeps the temperature in its restaurants at “[s]eventy to ’72” degrees.
Mr. Harshbarger agreed that a bag of ice left at room temperature would melt, produce
water, and form condensation that could drip. Mr. Harshbarger explained that the normal
procedure for carry-out orders is to bag the ice when the order is supposed to be picked
up and place it with the order “so they can grab it, because it does take some time to bag
the ice.”

       Plaintiff also submitted the affidavit of Kimberly Kay Goins. In her affidavit, Ms.
Goins stated that she has been in the food catering and food service business for thirty-
seven years and has prepared “catering and carry-out orders for hundreds and thousands
of patrons and guests.” Ms. Goins also has owned her own catering and food service
business. Ms. Goins stated in her affidavit:

      7. In my review of these materials it is clear Ruby Tuesday, Inc., was
      negligent through its agents, servants and employees in keeping a bag of ice
      outside at room temperature of 72° for a significant period of time because
      this would cause the ice bag to accumulate condensation and cause the ice
      to melt which is a safety risk for any potential carry-out guests who carry
      the ice causing the condensation to get on the floor causing a significant
      hazard of the patron or any other person slipping and falling.
      8. In my thirty-seven (37) year career in catering and food industry, it is the
      industry norm that bags of ice for any carry-out order are stored in an ice
      freezer until the patron or the guest arrives to pick up the order and then the
      bag of ice is taken out of the freezer to hand to the guest and patron to
      ensure that there is no safety risk and to also otherwise ensure that the
      patron and guest is not getting ice that has already melted into water.

       After a hearing, the Trial Court granted Ruby Tuesday summary judgment finding
and holding, inter alia, that there were no genuine disputed issues of material fact and
that Ruby Tuesday did not have superior, actual, or constructive knowledge of the
condition that caused Plaintiff to slip and fall, and therefore, that Ruby Tuesday had
negated an essential element of Plaintiff’s claim. Plaintiff appeals to this Court.



                                            4
                                       Discussion

       Although not stated exactly as such, Plaintiff raises one issue on appeal: whether
the Trial Court erred in granting summary judgment to Ruby Tuesday. As our Supreme
Court has instructed:

             Summary judgment is appropriate when “the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any material fact
      and that the moving party is entitled to a judgment as a matter of law.”
      Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
      summary judgment de novo, without a presumption of correctness. Bain v.
      Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
      Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
      so, we make a fresh determination of whether the requirements of Rule 56
      of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
      Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
      Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

                                          ***

      [I]n Tennessee, as in the federal system, when the moving party 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. We reiterate that a moving party
      seeking summary judgment by attacking the nonmoving party’s evidence
      must do more than make a conclusory assertion that summary judgment is
      appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
      moving party to support its motion with “a separate concise statement of
      material facts as to which the moving party contends there is no genuine
      issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
      separate, numbered paragraph and supported by a specific citation to the
      record.” Id. When such a motion is made, any party opposing summary
      judgment must file a response to each fact set forth by the movant in the
      manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
      judgment is made [and] . . . supported as 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
                                            5
      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., 475 U.S. at 586, 106 S.
      Ct. 1348. 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. If a summary judgment motion is filed before
      adequate time for discovery has been provided, the nonmoving party may
      seek a continuance to engage in additional discovery as provided in
      Tennessee Rule 56.07. However, after adequate time for discovery has
      been provided, summary judgment should be granted if the nonmoving
      party’s evidence at the summary judgment stage is insufficient to establish
      the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
      56.04, 56.06. The focus is on the evidence the nonmoving party comes
      forward with at the summary judgment stage, not on hypothetical evidence
      that theoretically could be adduced, despite the passage of discovery
      deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

      With regard to negligence, our Supreme Court has explained:

              As we have frequently observed, a negligence claim requires a
      plaintiff to prove the following elements: (1) a duty of care owed by the
      defendant to the plaintiff; (2) conduct by the defendant falling below the
      standard of care amounting to a breach of the duty; (3) an injury or loss; (4)
      causation in fact; and (5) proximate causation. See, e.g., Bradshaw v.
      Daniel, 854 S.W.2d 865, 869 (Tenn. 1993). The duty element is a question
      of law requiring the court to determine “whether the interest of the plaintiff
      which has suffered invasion was entitled to legal protection at the hands of
      the defendant.” Id. at 870 (quoting W. Page Keeton, Prosser & Keeton on
      Torts, § 37 at 236 (5th ed.1984)). Appellate review of a question of law is
      de novo. Bradshaw, 854 S.W.2d at 870.

             In analyzing duty, the court must balance the foreseeability and
      gravity of the potential risk of harm to a plaintiff against the burden
      imposed on the defendant in protecting against that harm. McClung v.
      Delta Square Ltd. Partnership, 937 S.W.2d 891, 902 (Tenn. 1996). A “risk
      is unreasonable and gives rise to a duty to act with due care if the
      foreseeable probability and gravity of harm posed by defendant’s conduct
                                             6
outweigh the burden upon defendant to engage in alternative conduct that
would have prevented the harm.” McCall v. Wilder, 913 S.W.2d 150, 153
(Tenn. 1995).

       In a premises liability case, an owner or occupier of premises has a
duty to exercise reasonable care with regard to social guests or business
invitees on 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. See Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn.
1996); Eaton v. McLain, 891 S.W.2d 587, 593–94 (Tenn. 1994). Although
the traditional rationale for imposing this duty was the owner’s superior
knowledge of conditions on the premises, see e.g., Kendall Oil v. Payne, 41
Tenn. App. 201, 293 S.W.2d 40, 42 (Tenn. App. 1955), we recently held
that a duty may exist even where the injury-causing condition is alleged to
be “open and obvious” to the plaintiff. We explained:

       That a danger to the plaintiff was ‘open or obvious’ does not,
       ipso facto, relieve a defendant of a duty of care. Instead, the
       duty issue 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. The
       factors provided in the Restatement (Second) of Torts, §
       343(A) relate directly to the foreseeability question; in short,
       if the foreseeability and gravity of harm posed from a
       defendant’s conduct, even if ‘open and obvious,’ outweighed
       the burden on the defendant to engage in alternative conduct
       to avoid the harm, there is a duty to act with reasonable care.

Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998).

        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.” Prosser and Keeton on Torts, supra, § 61 at 426. In this regard, “the
mere existence of a defect or danger is generally insufficient to establish
liability, unless it is shown to be of such a character or of such duration that
the jury may reasonably conclude that due care would have discovered it.”
Id. at 426–27. As we explained in Doe v. Linder Const. Co., 845 S.W.2d
173, 178 (Tenn. 1992):
                                       7
              Foreseeability is the test of negligence. If the injury which
              occurred could not have been reasonably foreseen, the duty of
              care does not arise, and even though the act of the defendant
              in fact caused the injury, there is no negligence and no
              liability. ‘[T]he plaintiff must show that the injury was a
              reasonably foreseeable probability, not just a remote
              possibility, and that some action within the [defendant’s]
              power more probably than not would have prevented the
              injury.’

       (emphasis added) (citations omitted).

Rice v. Sabir, 979 S.W.2d 305, 308-09 (Tenn. 1998) (footnote omitted).

        In its memorandum opinion incorporated into its August 4, 2016 judgment by
reference, the Trial Court found that the “injury-causing condition” was the “actual water
on the floor of the restaurant,” not the bag of ice that had been sitting on a shelf melting
which allowed water to condense on the bag. The Trial Court found that the undisputed
facts showed that the water was not on the floor when Plaintiff entered the Ruby Tuesday
to pick-up her food order. The undisputed facts show that the water did not drip on to the
floor of the restaurant until Plaintiff picked up the bag of ice. As such, the Trial Court
found that Ruby Tuesday could not have had knowledge of the injury-causing condition
prior to the Accident because the injury-causing condition, water on the floor, did not
occur until Plaintiff picked up the bag of ice. The undisputed facts show that Plaintiff fell
immediately after she picked up the bag of ice. Thus, according to the Trial Court, Ruby
Tuesday could not have had actual or constructive knowledge of the injury-causing
condition prior to Plaintiff’s slip and fall. The Trial Court further found that Ruby
Tuesday did not have a duty to warn Plaintiff that the bag of ice might drip when it was
lifted up because the condition of the bag of ice was “equally available to be noticed by
both Ruby Tuesday’s [sic] and the plaintiff,” and as such Plaintiff had as much
knowledge about the condition of the bag of ice when she lifted it as did Ruby Tuesday.
Based upon all this, the Trial Court found that Ruby Tuesday had negated an essential
element of Plaintiff’s claim, i.e., duty.

       Ruby Tuesday made a properly supported motion for summary judgment.
Plaintiff opposed the motion and pointed to evidence that showed that Ruby Tuesday
knew that the ice had been sitting out at room temperature. In fact, Mr. Gordon, the
Ruby Tuesday manager, testified that he had assisted with setting the order out to wait for
Plaintiff to pick it up and that the order, including the bag or bags of ice, had been sitting
out “for quite a while.” Plaintiff also pointed to the testimony of Mr. Harshbarger, an
                                               8
operating partner for Ruby Tuesday, who agreed that a bag of ice left at room
temperature would melt, produce water, and form condensation on the bag that could
drip. Plaintiff also pointed to the affidavit of her catering and food service expert, Ms.
Goins, who stated that the industry norm is to keep bags of ice for a carry-out order in a
freezer until the customer arrives for the pickup, both to ensure that the bag does not form
condensation and drip and that the customer receives ice as ordered and not water.

       We agree with the Plaintiff that the Trial Court defined the dangerous or injury
causing condition too narrowly. The dangerous or injury-causing condition was not just
the water that fell on the floor after Plaintiff picked up the bag of ice. The dangerous or
injury-causing condition included the partially melted bag of ice with condensation on it
waiting to be picked up by Plaintiff. It was this condition of the bag of ice that caused the
water to fall on the floor when Plaintiff picked up the bag of ice. The undisputed facts
show that only Ruby Tuesday and not Plaintiff had actual knowledge of how long the bag
of ice had been sitting out on the shelf. In the case now before us, Plaintiff has shown
that Ruby Tuesday clearly had superior knowledge with regard to how long the bag of ice
had been sitting out at room temperature before Plaintiff arrived to pick up her order. We
must balance the foreseeability and gravity of the potential risk of harm to a customer
such as Plaintiff if a bag of ice is left at room temperature “for quite a while” and then
drips water on to the floor when picked up by the customer against the burden imposed
upon Ruby Tuesday to protect against such foreseeable harm. Ruby Tuesday could have
protected against such harm either by leaving the bag of ice in a freezer until the
customer arrived or by warning the customer that the bag of ice might be dripping
because it has been sitting out “for quite a while.” The foreseeable probability and
gravity of harm outweighs the burden on Ruby Tuesday to have taken steps that would
have prevented the harm. This results in Ruby Tuesday having had a duty to engage in
alternative conduct to prevent the foreseeable harm. Thus, we hold that Ruby Tuesday
did have a duty to Plaintiff.

       In its brief on appeal, Ruby Tuesday argues, in part, that summary judgment was
also proper because reasonable minds could conclude only that Plaintiff’s fault was fifty
percent or greater. In Staples v. CBL & Assocs., Inc., our Supreme Court instructed:

              In negligence cases, only after the element of duty is established
       does the comparative fault of the plaintiff come into play. See Coln v. City
       of Savannah, 966 S.W.2d [34] at 42 [ (Tenn. 1998) ]. If the defendant has
       plead the affirmative defense of the plaintiff’s relative fault, the
       reasonableness of the plaintiff’s conduct in confronting a risk should be
       determined under the principles of comparative fault. See Perez v.
       McConkey, 872 S.W.2d 897, 905 (Tenn. 1994). If the evidence is evaluated
       in the light most favorable to the plaintiff and reasonable minds could not
                                             9
       differ that her fault was equal to or great [sic] than that of the defendants,
       summary judgment in the defendant’s favor may be granted. See Coln v.
       City of Savannah, 966 S.W.2d at 44.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91–92 (Tenn. 2000).

        Ruby Tuesday argues that Plaintiff admitted that there was no water on the floor
prior to Plaintiff’s picking up the bag of ice, that Plaintiff was the one who ordered the
ice and demanded that it be ready at a certain time knowing that this time was earlier than
she intended to arrive for pickup, that Plaintiff was running late, and that Plaintiff should
have known that ice melts and will cause condensation on the bag. Thus, Ruby Tuesday
argues that Plaintiff was in the best position to avoid the Accident. Viewing the
evidence, including our determination of what the dangerous or injury causing condition
was and Ruby Tuesday’s actual and superior knowledge as to how long the ice had been
sitting out, in the light most favorable to plaintiff, as we must at this summary judgment
stage, we cannot say that a reasonable trier of fact could not find that the percentage of
fault attributable to Plaintiff was less than fifty percent.

       The evidence in the record on appeal shows that Ruby Tuesday knew how long the
bag of ice was sitting out while Plaintiff had no actual knowledge of how long the bag of
ice had been sitting out at room temperature. The evidence further shows that Plaintiff
ordered a bag or bags of ice, not water. A reasonable trier of fact could find that Plaintiff
was justified in expecting that the bag she picked up was un-melted ice and that Plaintiff
was less than fifty percent at fault for picking up the bag without examining it to
determine if the ice had melted causing condensation on the bag. As such, there are
genuine disputed issues of material fact with regard to comparative fault in this case,
making summary judgment inappropriate.

       In its brief on appeal, Ruby Tuesday also argues that public policy ought to
prohibit a finding of liability in this case. In essence, Ruby Tuesday argues: “To deny
summary judgment in this case would be to suggest that there is a legal duty to warn that
ice melts and can develop condensation when placed in a plastic bag. To adopt the
Plaintiff’s reasoning would create law that mandates that a restaurant must disregard the
specific requests a customer makes regarding pick-up and/or affirmatively warn all
customers that ice can melt.”

       The outcome that Ruby Tuesday argues will occur, however, will not result from
our decision in this case. We are not holding that a restaurant must disregard customer
requests, nor are we holding that a restaurant must warn all customers that ice melts.
Rather, we state only that Ruby Tuesday was in a superior position to know that the bag
of ice involved in the Accident had been sitting out at room temperature “for quite a
                                             10
while,” and knowing that ice melts and can cause condensation on the bag at room
temperature, Ruby Tuesday had a duty either to keep the bag of ice in a freezer until
Plaintiff arrived or to warn Plaintiff that the bag of ice had been sitting out “for quite a
while” and, therefore, could drip water causing a potentially dangerous condition. Such a
duty imposes neither an onerous nor a ridiculous burden upon Ruby Tuesday.

       As Ruby Tuesday had a duty to Plaintiff and we cannot say that a rational trier of
fact could not find that the percentage of fault attributable to Plaintiff was less than fifty
percent, summary judgment was not proper. We, therefore, vacate the grant of summary
judgment and remand this case for further proceedings consistent with this Opinion.

                                        Conclusion

       The judgment of the Trial Court is vacated, and this cause is remanded to the Trial
Court for further proceedings consistent with this Opinion and for collection of the costs
below. The costs on appeal are assessed against the appellee, Ruby Tuesday, Inc.




                                           _________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE




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