                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 September 20, 2006 Session

ROSALIND PRUITT, INDIVIDUALLY AND AS MOTHER AND NEXT OF
           KIN OF DOMONIQUE PRUITT, A MINOR
                            v.
                     CITY OF MEMPHIS

                     An Appeal from the Circuit Court for Shelby County
                         No. CT-002855-04     Kay S. Robilio, Judge


                   No. W2005-02796-COA-R3-CV - Filed January 18, 2007


This is a negligence case brought under the Tennessee Governmental Tort Liability Act. The
plaintiff’s minor daughter slipped and fell at a public swimming facility and broke her arm. The
plaintiff filed suit against the defendant swimming facility, alleging that her minor daughter slipped
on a wet concrete floor in the dressing room area and that the swimming facility created and
maintained a dangerous and defective condition that caused her daughter’s injury. At trial, the
defendant swimming facility moved for an involuntary dismissal at the close of the plaintiff’s proof.
The trial court granted the motion and dismissed the case. The plaintiff now appeals, arguing that
the trial court applied an adult standard of care to her minor daughter, and that she established a
prima facie case of negligence against the defendant. We affirm, finding that the plaintiff failed to
make out a prima facie case of negligence.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

David A. McLaughlin and Peter B. Gee, Jr., Memphis, Tennessee, for Appellants Rosalind Pruitt,
Individually and as Mother and Next of Kin of Domonique Pruitt, a minor.

J. Michael Fletcher, Memphis, Tennessee, for Appellee City of Memphis.

                                             OPINION

        Defendant/Appellee City of Memphis (“City” or “Defendant”), owns, operates, and
maintains the Lester Community Center, which includes a swimming pool open to the public. On
June 15, 2003, Dominique Pruitt, then age 10, entered the facility to swim. While in the facility,
Dominique Pruitt fell and injured her right arm, fracturing it in two places.
        On May 17, 2004, Plaintiff/Appellant Rosalind Pruitt, individually and as mother and next
of kin of Domonique Pruitt (“Plaintiff” or “Pruitt”), filed a lawsuit against the City pursuant to the
Tennessee Governmental Tort Liability Act, alleging negligence.1 In her complaint, Pruitt asserted
that Dominique entered the dressing room of the Lester Community Center and, while in the
changing area, slipped and fell on a wet, slippery, and slick concrete floor, fracturing her right arm
in two places. Pruitt’s complaint alleged that there were no “anti-slip measures” in place to protect
the public in general or Domonique in particular. She sought compensatory damages equal to the
maximum amount allowed under Tennessee Code Annotated § 29-20-403 or $250,000, whichever
is greater, as well as medical expenses.

        The City filed its answer on June 25, 2004. In response to the complaint, the City denied
negligence and asserted that Pruitt failed to state a claim upon which relief could be granted. The
City also argued that Pruitt was guilty of comparative fault by failing to properly supervise her minor
daughter, and that the Public Duty Doctrine barred any recovery.

        A bench trial was held on October 31, 2005. At the outset, counsel for the Plaintiff told the
trial court that the evidence would show that, while Domonique was in the hallway on the way to
the dressing room, she slipped and fell on “polished” and wet concrete.2 Counsel argued that the
evidence would show that the slippery and wet concrete floor constituted a dangerous and defective
condition created and maintained by the City.

       As their first witness, Plaintiff called Domonique Pruitt. Domonique testified that on January
15, 2003, she arrived at the Lester Community Center around 2:00 p.m. to swim. She said that when


         1
          Plaintiff pled section 29-20-205 of the Tennessee Code Annotated as the basis of her claim. This section
provides that “[i]mmunity from suit of all governmental entities is removed for injury proximately caused by a negligent
act or omission of any employee within the scope of his employment,” subject to numerous exceptions. T.C.A. § 29-20-
205 (2000). At trial and on this appeal, however, Plaintiff argued that the injury was caused by a dangerous and defective
condition of which the City of M emphis had notice. Section 29-20-204 of the Tennessee Code Annotated governs the
removal of governmental immunity for injuries caused by a dangerous or defective condition. Specifically, this section
states:

         (a) Immunity from suit of a governmental entity is removed for any injury caused by the dangerous
         or defective condition of any public building, structure, dam, reservoir or other public improvement
         owned and controlled by such governmental entity.

         (b) Immunity is not removed for latent defective conditions, nor shall this section apply unless
         constructive and/or actual notice to the governmental entity of such condition be alleged and proved
         in addition to the procedural notice required by § 29-20-302.

T.C.A. § 29-20-204 (2000).

         2
           From the record, we gather that upon entering the Lester Community Center, there is a long hallway leading
directly to the swimming pool. On the left or right side of that hallway is an entryway area that, upon entering it, veers
into the girls’ dressing room. The record is not clear as to which side of the hallway the girls’ dressing room is located.
Either way, it appears that entry to the dressing room would require a turn from the hallway to the dressing room.

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she entered the facility, she walked down a hallway on her way to change clothes. In the hallway,
she stated, she slipped once, but “caught [her]self,” and then after a few more steps, slipped again
and fell to the floor. According to Domonique, there was nothing on the floor where she slipped;
she described the concrete floor as “rough” and wet. When she got up, she said, the back of her
shorts was wet and her right arm was hurting. She testified that she then told an employee of her fall.
The employee informed her that her arm was broken and called her mother. After Domonique’s
mother arrived at the community center, the two of them were taken to LeBonheur Children's
Hospital by ambulance, where her right arm was put in a cast. On cross-examination, Domonique
acknowledged that when she arrived at the community center, she was late meeting friends and did
not pay attention to where she stepped.

        Next, Rosalind Pruitt, Dominique’s mother, took the stand. When she arrived at the
community center, she said, her daughter was sitting in a chair at the entrance of the facility holding
her right arm. According to Ms. Pruitt, as she bent down to examine her daughter’s arm, she peered
into the hallway of the facility “trying to imagine what happened” and saw a wet concrete floor lit
only by the sunlight coming from the front door. She maintained that she did not see a mat of any
kind on the concrete floor of the hallway. Ms. Pruitt also testified about her visit to the community
center three or four days after the alleged incident, in which she was accompanied by an investigator
who took photographs of the facility. Ms. Pruitt looked at the photographs taken by the investigator.
She said that they depicted the “dressing area,” but that none showed the area where Domonique fell.
Ms. Pruitt’s testimony suggested that the fall occurred in the entryway area of the dressing room.3

         Plaintiff then called, as an adverse witness, Daniel Young, the manager of the Lester
Community Center and a certified lifeguard. Young testified that, on the day of the incident,
Domonique Pruitt came out of the dressing room of the facility with a broken right arm. Young said
that he was in charge of placing rubber mats on the concrete floors of the community center. He
testified about where the floor mats were typically placed. According to Young, one mat was
typically placed in the long hallway leading to the swimming pool, another mat at the entrance of
the dressing room, and two or three mats on the floor inside the dressing room. Young asserted that
there was a floor mat in the hallway on the day of the incident. He conceded, however, that the floor
mats are not physically connected to each other. He allowed that, in the dressing room area, the mats
do not cover the entire floor, and that there is a gap between the floor mat lining the hallway to the
swimming pool and the floor mat in the entryway area leading into the dressing room, which exposes
the concrete floor.

         Finally, Plaintiff presented the testimony of Gloria Collins, also an employee of the Lester
Community Center. On the day of the incident, Collins was working in the “cage,” an area where
children deposit their clothes after changing. Collins testified that she saw Domonique walk into the
facility and go around the corner to the “women’s side.” Shortly thereafter, she stated, Domonique


         3
            The photographs taken by Ms. Pruitt’s investigator, which were submitted as part of the record, appear to
depict this entryway area in addition to the inside of the dressing room area. As noted above, however, Ms. Pruitt
testified that the photographs do not depict the area where Domonique fell.

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returned and informed her that “she fell in the dressing room.” Collins also testified about the
location of the rubber mats. She said that, on the day of the incident, the rubber mat designated for
the hallway was in place. She could not recall whether there was a mat placed in the entryway of
the dressing room. Collins also conceded that if there was a floor mat in the entryway area leading
into the dressing room on the day of the incident, it would not have been connected to the mat in the
hallway.

        At the conclusion of the Plaintiff’s proof, the City moved for an involuntary dismissal under
Rule 41.02(2) of the Tennessee Rules of Civil Procedure. The trial court granted the motion, ruling
orally as follows:

                The Court does not find plaintiff’s argument persuasive. Domonique Jones
       Pruitt testified herself that the concrete was rough and wet. All of us have been
       around swimming pools all of our lives and that’s what you find is rough and wet
       concrete and that’s what she testified to. And that she was not looking where she
       was going.
                And I think that Domonique—I think we very surely will never know exactly
       what happened, but the plaintiff has not tipped the scales in plaintiff’s favor. We find
       that she, in fact, testified.
                Also, we have to remember—I didn’t want to cause Domonique any
       embarrassment, but Domonique is now 12 years old and in the fourth grade. So her
       perception—she may have to meet some perceptual challenges herself, and I simply
       don’t see that plaintiff’s carried the burden of proof.
                That’s what you have at swimming pool[s] is rough, wet concrete and you do
       have to pay attention to where you’re going and you do have to look where you’re
       going. And if there are mats around—and it’s difficult to know where the mats were,
       but it seems that the way the evidence is, that there were some mats around, suppose
       that she was in dressing room, I mean, she has an obligation to stand where she is not
       going to fall over.
                Now, we don’t know where she fell. When she stepped out, and at one time
       she was in the dressing area—in fact, she said she was down in the hall. She cannot
       remember herself. Again, Domonique is 12 years old and in the fourth grade, so I do
       not find that plaintiffs carried the burden of proof.

Subsequently, on November 7, 2005, the trial court entered a written order dismissing the Plaintiff’s
claim and granting the City’s Rule 41.02(2) motion. From this order, the Plaintiff now appeals.

       On appeal, Plaintiff raises the following two issues: (1) whether the trial court erred in
granting the City’s motion for involuntary dismissal pursuant to Tennessee Rule of Civil Procedure
41.02(2); and (2) whether the City rebutted the legal presumption that her minor daughter,
Domonique Pruitt, is not capable of negligence.




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         A Rule 41.02(2) motion for involuntary dismissal challenges the sufficiency of the plaintiff’s
proof. Burton v. Warren Farmers Co-op, 129 S.W.3d 513, 520 (Tenn. Ct. App. 2002). In
considering such a motion, a trial court “need only impartially weigh and evaluate the plaintiff's
evidence just as it would after all the parties had concluded their cases and may dismiss the plaintiff's
claims if the plaintiff has failed to make out a prima facie case by a preponderance of the evidence.”
Id. (citing Thompson v. Adcox, 63 S.W.3d 783, 791 (Tenn. Ct. App. 2001)). On appeal, we review
the trial court’s decision to grant a Rule 41.02(2) motion in accordance with Tennessee Rule of
Appellate Procedure 13(d) “because the trial court has used the same reasoning to dispose of the
motion that it would have used to make a final decision at the close of all the evidence.” Id. at 521
(citing College Grove Water Util. Dist. v. Bellenfant, 670 S.W.2d 229, 231 (Tenn. Ct. App. 1984);
Nold v. Selmer Bank & Trust Co., 558 S.W.2d 442, 444 (Tenn. Ct. App. 1977)). Thus, our standard
of review is de novo upon the record, according a presumption of correctness to the trial court’s
findings of fact. “We will affirm the trial court's decision unless the evidence preponderates against
the trial court's factual determinations or unless the trial court has committed an error of law
affecting the outcome of the case.” Id. (citing Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.
1984); Smith v. Inman Realty Co., 846 S.W.2d 819, 821 (Tenn. Ct. App. 1992)). Finally, we note
that the trial court’s assessment of the witnesses’ testimony is given great weight on appeal, because
the trial court is in a better position to evaluate their credibility. Id. (citing Thompson v. Adcox, 63
S.W.3d 783, 787 (Tenn. Ct. App. 2001)); see also Whitaker v. Whitaker, 957 S.W.2d 834, 837
(Tenn. Ct. App. 1997).

        On appeal, the Plaintiff argues first that she established that the City created and maintained
a dangerous and defective condition on the premises of the Lester Community Center, namely, a wet
concrete floor exposed between a gap in the rubber floor mat in the hallway and the area leading into
the dressing room. She also contends that she proved that the City had actual notice of this
dangerous condition. Plaintiff also asserts that she established that Domonique Pruitt, a ten-year-
old minor, slipped and fell in the area leading into the dressing room, fracturing her right arm in two
places. Accordingly, Plaintiff asserts, the evidence preponderates against the trial court’s finding
that she failed to establish a prima facie case of negligence against the City.

        Pruitt’s negligence action was brought pursuant to the Tennessee Governmental Tort Liability
Act (“GTLA”). In pertinent part, the GTLA removes governmental immunity “for any injury caused
by the dangerous or defective condition of any public building, structure, dam, reservoir or other
public improvement owned and controlled by [a] governmental entity.” T.C.A. § 29-20-204(a)
(2000). In accordance with common-law principles of premises liability, section 29-20-204 requires
the plaintiff to prove “constructive and/or actual notice to the governmental entity of such
condition.” T.C.A. § 29-20-204(b) (2000); Collins v. Metro. Gov’t of Nashville, No. 01A01-9607-
CV-00339, 1997 WL 187312, at *3 (Tenn. Ct. App. Apr. 18, 1997). Further, the GTLA also
removes governmental immunity for “injury proximately caused by a negligent act or omission of
any employee within the scope of his employment,” subject to various exceptions not pertinent to
this appeal. T.C.A. § 29-20-205 (2000). As noted above, despite pleading section 29-20-205 of the
Tennessee Code Annotated in her complaint, at trial it appears that Plaintiff traveled under section



                                                   5
29-20-204. Under either section, however, the analysis for purposes of this appeal would be the
same.

       To establish a prima facie case of negligence, the Plaintiff must prove the following five
elements: “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the applicable
standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5)
proximate, or legal, cause.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995) (citing Kilpatrick
v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993); McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991)). This case turns on the issue
of causation.

        As stated by the Tennessee Supreme Court, a “defendant’s conduct is the cause in fact of the
plaintiff’s injury if, as a factual matter, it directly contributed to the plaintiff’s injury.” Hale v.
Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005). Thus, the initial question is whether the plaintiff’s
injury would not have occurred “but for” the defendant’s breach of duty. Id. (citing Wood v.
Newman, Hayes & Dixon Ins. Agency, 905 S.W.2d 559, 562 (Tenn. 1995)). If the plaintiff
establishes “but for” causation, then the question becomes whether the defendant’s breach of duty
proximately caused the plaintiff’s injury.

        Proximate cause puts a limit on the causal chain, such that, even though the
        plaintiff’s injury would not have happened but for the defendants’ breach, defendants
        will not be held liable for injuries that were not substantially caused by their conduct
        or were not reasonably foreseeable results of their conduct.

Id. at 719; see also Lowery v. Franks, No. 02A01-9612-CV-00304, 1997 WL 566114, at *5 (Tenn.
Ct. App. Sept. 10, 1997).

        At trial, the Plaintiff’s proof regarding the location of the fall can only be characterized as
inconsistent. The complaint alleged that Domonique fell in the changing area of the dressing room.
Domonique testified that she fell in the hallway on her way to the changing area. Domonique’s
mother seemed to assert in her testimony that her daughter fell in the entryway area of the dressing
room. Still later, the testimony of the two employees of the Lester Community Center who worked
on the day of the incident tended to support the allegation in the complaint that Domonique fell
inside the dressing room.

         Furthermore, there was also conflicting testimony regarding the location of the rubber floor
mats. Domonique testified that there was nothing on the floor where she fell in the hallway. Ms.
Pruitt testified that she did not see a floor mat when she peered into the hallway from the entrance
of the community center as she tended to her injured daughter. Daniel Young, however, testified that
floor mats are typically placed in the hallway leading to the swimming pool, in the entryway area of
the dressing room, and inside the dressing room. Young further testified that, on the day of the
incident, there was a floor mat in the hallway. Gloria Collins recalled that there was a floor mat in
the hallway on the day of the incident, but could not remember whether there was a floor mat at the
entrance of the dressing room. The Plaintiff’s proof also included photographs of the “dressing area”

                                                   6
of the Lester Community Center, but Ms. Pruitt said that the photographs were not of the place
where Domonique fell.

        After hearing all of this proof, the trial court explicitly found that it could not determine
where in the facility Domonique actually fell. The trial court further found that while the evidence
established that there were “some mats around,” their location could not be determined. After
thoroughly reviewing the record, we cannot say that the evidence preponderates against these
findings.

       Assuming arguendo that the Plaintiff proved that there was an exposed, wet concrete floor
between the gaps in the rubber floor mats, the Plaintiff did not establish by a preponderance of the
evidence that this allegedly dangerous condition caused Domonique to fall and injure her right arm.
Based on the record before us, it is unclear where Domonique actually fell and whether or not a
rubber floor mat was located in that area.

        Without establishing where the injury occurred and whether there was a floor mat in that
location, the Plaintiff failed to prove that the City’s conduct or the alleged dangerous condition was
a cause in fact of Domonique’s injury, much less a proximate or legal cause. Cook By and Through
Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 939 (Tenn. 1994) (“The finding of
proximate cause must be based on proof of causation in fact.”). Instead, Plaintiff merely established
that Domonique fell while inside the Lester Community Center and was injured. As often noted,
“negligence is not presumed from the mere fact of an accident or injury.” Lowery v. Franks, No.
02A01-9612-CV-00304, 1997 WL 566114, at *4 (Tenn. Ct. App. Sept. 10, 1997). Because the
Plaintiff did not establish causation, we cannot conclude that the trial court erred in granting the
City’s motion for involuntary dismissal. This holding pretermits any other issues raised on appeal.

        The decision of the trial court is affirmed. Costs of this appeal are to be taxed to
Plaintiff/Appellant Rosalind Pruitt, and her surety, for which execution may issue, if necessary.




                                               ___________________________________
                                                     HOLLY M. KIRBY, JUDGE




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