                                                                                         12/07/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 15, 2017 Session

   TINA LYNN DAVIS NEWELL v. FIRST STATE BANK, INC., ET AL.

                  Appeal from the Circuit Court for Tipton County
                      No. 7212     Joe H. Walker, III, Judge
                     ___________________________________

                           No. W2017-01209-COA-R3-CV
                       ___________________________________

A customer of a tanning salon injured herself upon exiting the salon when she fell while
stepping off the curb onto a snow and ice-covered portion of the parking lot where she
had parked her car. The customer brought suit against the owners of the tanning salon and
of the shopping center, as well as a grounds keeping service, alleging that the co-
defendants negligently failed to clear the ice and snow from the parking lot or warn her of
the potential danger. The owners of the tanning salon filed a motion for summary
judgment. Finding that the tanning salon owed no duty to the customer, the trial judge
granted summary judgment. The customer appealed. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and JOE G. RILEY, SP. J ., joined.

Steven Wilson and Jack McNeil, Memphis, Tennessee, for the appellant, Tina Lynn
Davis Newell.

Cameron M. Watson and Christopher M. Myatt, Memphis, Tennessee, for the appellees,
Stephen M. McCann and Sara B. McCann.

                                       OPINION

                 BACKGROUND AND PROCEDURAL HISTORY

       On January 9, 2015, Tina Lynn Davis Newell (“Appellant”) filed a complaint
against co-defendants Sara and Stephen McCann (d/b/a Elite Beach Tanning Company)
(“Appellant,” or “Elite”), First State Bank, Inc. (“Landlord”), and Aardvark Sweeping
Services, LLC, to recover damages for personal injuries she sustained in a fall in the
parking lot of a shopping center, a few days after a severe winter ice-and-snow storm had
befallen the area surrounding Atoka, Tennessee. Just prior to her fall,1 Ms. Newell had
attended a tanning session at Elite, a tanning salon in the Kimbrough Corners shopping
center.2 According to Ms. Newell’s complaint, she slipped in the parking lot upon
stepping off the curb onto ice, concealed by partially-frozen precipitation (“slush”), while
returning to her car.

       On September 19, 2016, after taking discovery, Elite filed a motion for summary
judgment alleging that Ms. Newell had failed to establish the duty element of her
negligence claim, and asserting the affirmative defense of comparative fault. 3 In support
of its motion, Elite offered, inter alia, its lease agreement with Landlord and Ms.
Newell’s deposition. Elite argued that the lease agreement provided that Landlord was
contractually obligated to maintain the parking area. Moreover, Elite argued, Ms.
Newell’s own testimony indicated that she appreciated that there was slush surrounding
her car that could be slippery, and she failed to use proper caution.

       On March 20, 2017, the trial court entered an order granting Elite’s motion for
summary judgment. The trial court concluded that Elite owed no duty to Ms. Newell
because the parking spaces were not under Elite’s control, and that the slush was not an
unreasonably dangerous condition sufficient to trigger a duty to warn or make safe
because it was an open and obvious condition. Ms. Newell filed a “Motion for
Interlocutory Appeal,” which Appellees opposed and which the trial court denied.
However, the parties requested that the trial court certify its order granting summary
judgment, pursuant to Tennessee Rule of Civil Procedure 54.02, and make it a final
judgment. The trial court then amended its order of March 20, 2017, and granted
summary judgment and entered it as a final judgment as to Elite. Ms. Newell timely
appealed.

                                       ISSUES PRESENTED

        Ms. Newell raises the following issues for our review, which we revise and restate
as follows:

                  I. Whether Elite, as a lessee in the shopping center, had a duty to Ms.
                  Newell for injuries sustained in the shopping center’s parking lot
                  where she fell.

        1
            Ms. Newell fell on March 7, 2014.
        2
         Ms. Newell had also attended a tanning session at the same salon the day before on March 6,
2014. On March 6, 2014, she traversed the ice and snow in the parking lot near the salon without incident.
        3
          Elite’s co-defendant, Aardvark Sweeping Services, also filed a motion for summary judgment,
and the trial court granted the motion. However, that judgment is not the subject of this appeal.
                                                  -2-
              II. Whether the Trial Court erred in concluding that Elite had no duty
              to warn Ms. Newell of the slush in the parking lot or a duty to
              remove the slush from the parking spaces.

                               STANDARD OF REVIEW

       Summary judgment is appropriate when the moving party has demonstrated that
there are no disputed issues of material fact and that it is entitled to judgment as a matter
of law. See Tenn. R. Civ. P. 56.04; Thompson v. Ruby Tuesday, Inc., No. M2004-01869-
COA-R3-CV, 2006 WL 468724, at *2 (Tenn. Ct. App. Feb. 27, 2006) (citing Byrd v.
Hall, 847 S.W.2d 585, 588 (Tenn. 1998)). At the summary judgment stage, the moving
party bears the burden of either affirmatively negating an essential element of the
nonmoving party’s claim or conclusively establishing an affirmative defense. Id. (citing
McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)). When a party
makes a properly supported motion for summary judgment, the burden shifts to the
nonmoving party to establish the existence of a genuine issue of disputed material fact.
Id. The nonmoving party may accomplish this by: “(1) pointing to evidence establishing
material factual disputes that were overlooked or ignored by the moving party; (2)
rehabilitating the evidence attacked by the moving party; (3) producing additional
evidence establishing the existence of a genuine issue for the trial; or (4) submitting an
affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P.
56.06.” See Green v. Roberts, 398 S.W.3d 172, 176 (Tenn. Ct. App. 2012) (quoting
Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)).

       The reviewing court must then determine whether a factual dispute exists. Id. In
making this determination, we must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. See
Boykin v. George P. Morehead Living Tr., No. M2014-00575-COA-R3-CV, 2015 WL
3455433, at *2 (Tenn. Ct. App. May 29, 2015). Summary judgment is inappropriate if
there is any doubt concerning the existence of a genuine issue of material fact, and the
court may only award summary judgment when a reasonable person could only come to
one conclusion based on the facts and inferences drawn from those facts. Thompson,
2006 WL 468724, at *2. We review an award of summary judgment de novo, with no
presumption of correctness. Id. (citing Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528,
534 (Tenn. 2002)).

                                      DISCUSSION

        A claim for negligence requires proof of 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 that duty; (3) an injury or loss; (4) cause in
fact; and (5) proximate cause. See West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550
(Tenn. 2005) (citing Coln v. City of Savannah, 996 S.W.2d 34, 39 (Tenn. 1998)).
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Negligence cannot be presumed by the mere happening of an accident. Brackman v.
Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971). “Simply put, ‘[p]eople fall all the
time[,] but this does not perforce mean that the fall was due to another’s negligence[.]’”
Mooney v. Genuine Parts Co., No. W2015-02080-COA-R3-CV, 2016 WL 2859149, at
*3 (Tenn. Ct. App. Apr. 20, 2016) (quoting Anderson v. Wal-Mart Stores E., L.P., No.
2:12-00037, 2013 WL 3010696, at *3 (Tenn. Ct. App. June 18, 2013)).

       Negligence cases are generally unamenable to disposition at the summary
judgment stage, unless the inferences and facts taken together “are so certain and
uncontroverted that reasonable minds would agree.” See Boykin, 2015 WL 3455433, at
*2 (quoting Burgess v. Tie Co. 1, LLC, 44 S.W.3d 922, 923 (Tenn. Ct. App. 2008)). With
this instruction in mind, we turn to consider whether Elite, as a tenant in the shopping
center, owed a duty to clear frozen precipitation from the parking lot area in the vicinity
of the leased space or to warn Ms. Newell that the slush could be slippery under the
circumstances of this case.

                               I. DUTY: LOCATION OF THE FALL

       Elite claims that, as the lessee of a single leased store in the shopping center, it
owed no duty to Ms. Newell to maintain the common parking lot. The issue of whether
Elite owed Ms. Newell a duty is a question of law. See Berry v. Houchens Mkt. of Tenn.,
Inc., 253 S.W.3d 141, 145 (Tenn. Ct. App. 2007) (citation omitted). It is undisputed that
Elite leased the premises from Landlord. Likewise, it is undisputed that Elite’s lease
specified that Landlord was responsible for maintaining the common areas, including the
parking lot.4 However, Ms. Newell argues that, despite the lease, Elite owed her a duty of
care as the occupier of the area in which she fell because Elite assumed control over the
spaces by directing employees not to park there. Alternatively, Ms. Newell argues that
Elite owed her a duty with respect to the parking spaces because the parking spaces were
located approximately fifteen feet from Elite’s door. Therefore, according to Ms. Newell,
the spaces constituted part of Elite’s approach, and Elite owed her a duty to provide a
safe ingress and egress by removing the slush from the parking spaces or warning her.
We now turn to address Ms. Newell’s arguments in light of the case law.

      It is well established that when “a landlord retains possession of a part of the
premises for use in common by different tenants, the landlord is under a continuing duty

       4
           In relevant portion, the lease states:

                  Common Areas: The common areas are part of the Shopping Center designated
                  by Landlord from time to time for the common use of all tenants, including,
                  among other facilities, parking areas, sidewalks, landscaping, curbs . . . , all of
                  which are subject to Landlord’s sole management and control and shall be
                  operated and maintained in such a manner as Landlord, in its discretion, shall
                  determine.
                                                    -4-
imposed by law to exercise reasonable care to keep the common areas in good repair and
safe condition.” See Id. at 146 (quoting Teddler v. Raskin, 728 S.W.2d 343, 347–8 (Tenn.
Ct. App. 1987)). “Although the landlord has the duty to keep common areas safe and in
good repair, a lessee also has a ‘duty to see that the leased premises and its approach is in
a reasonably safe condition.’” Id. (quoting Thompson v. Ruby Tuesday, Inc., No. M2004-
01869-COA-R3-CV, 2006 WL 468724, at *3 (Tenn. Ct. App. Feb. 27, 2006)). However,
a lessee does not have a duty to a customer, injured in the common parking area of a
shopping center, when the lessee has not exercised control over the parking lot and the
lessee’s lease provides that the lessor is responsible for maintaining the safety of the
common areas. Id.; see also Thompson, 2006 WL 468724, at *3; Gladman v. Revco Disc.
Drug Ctrs., Inc., 669 S.W.2d 677, 678–79 (Tenn. Ct. App. 1984).

        In Gladman, a customer fell in the slushy parking lot of a multi-store shopping
complex, injuring himself. 669 S.W.2d at 678. A store owner’s lease specified that the
landlord was responsible for maintaining the common areas, and specifically stated that
the landlord was responsible for removing snow and frozen precipitation. Id. The store
owner filed a motion for summary judgment alleging that it owed no duty with respect to
the common parking lot, and the trial court granted the motion having concluded that the
plaintiff failed to establish the duty element. Id. On appeal, this Court affirmed, holding
that the store owner owed no duty to maintain the common parking lot. Id. at 679.

        Just as in Gladman, Elite negated the element of duty by affirmatively
demonstrating that Landlord was contractually responsible for maintaining the common
areas, including the parking spaces in front of Elite. At the summary judgment stage,
“[i]f the moving party successfully negates a claimed basis for the action, the non-moving
party may not simply rest upon the pleadings, but must offer proof to establish the
existence of the essential elements of the claim.” Berry, 253 S.W.3d at 145 (quoting Blair
v. W. Town Mall, 130 S.W.3d 761 (Tenn. 2004)). Ms. Newell has proffered only the
“evidence” that Elite had a general operational policy of instructing employees not to
park in the spaces directly in front of Elite so that the spaces would be free for customers.
According to Ms. Newell, this policy evidences a level of “control” over the parking lot
sufficient to hold Elite responsible for clearing frozen precipitation from the common
areas. We disagree. Elite’s policy was an attempt to control employees, not parking
spaces. Ms. Newell’s “proffered” evidence is insufficient to establish duty vis-à-vis the
assumption of control theory of liability under these facts.

       We now turn to evaluate whether Ms. Newell proffered sufficient evidence to
survive appellant’s motion for summary judgment by establishing the duty element under
the “approach” theory. Relying on Roberts v. Tennessee Wesleyan College, Ms. Newell
argues that Elite owed her a duty of care in the parking lot because the spaces constituted
part of the approach to Elite. See Roberts v. Tenn. Wesleyan Coll., 60 Tenn. App. 624,
634 (Tenn. Ct. App. 1969). In Roberts, this Court concluded that a lessee of a venue for a
ballet recital owed a duty to ensure that the steps of the exit of the building were
                                            -5-
reasonably well lit. Id. at 634–35. According to Ms. Newell, the parking spaces in front
of Elite constitute part of the approach to Elite, and Elite owed her a duty to warn or
remove the “slush” as part of its duty to maintain a safe entryway.

        However, the evidence supports Elite’s position that it maintained a safe approach.
According to Ms. Newell, the area around the entrance to Elite and the entire parking lot
was completely free of ice on the day that she fell—except for the parking spaces in
which she chose to park. Ms. Newell’s exhibit, a photograph taken the same day as her
fall by her sister, shows that the sidewalks of the shopping center outside the entrance to
Elite are covered with an overhang and clear of “slush.” In her deposition, the following
exchange took place:

       Q: Was there still some snow, slush, ice stuff out in the parking lot itself [on the
       day you fell]?

       A: No, sir.

       Q: Okay.

       A: The parking lot was clear.
                                           ...

       Q: Okay. So there was still some frozen stuff, slushy stuff up next to the
       curb and those parking spaces right in front of the salon?

       A: Yes, sir.

       She testified that she parked in those spaces because they were the closest to her
destination and she “assumed it was safe” because other customers had parked in those
spaces. Ms. Newell testified that she used her car to steady herself on the way inside, and
warned her companions to be careful not to slip in the clearly visible slush. Based on our
review of the record, it is clear that Ms. Newell could have safely entered Elite without
walking through the “slush” by walking through the clear parking lot and utilizing the
clear sidewalks or ramps to avoid injury. She chose not to do so. Under these
circumstances, we find that the spaces in front of Elite do not constitute part of Elite’s
approach for purposes of establishing the duty element of Ms. Newell’s claim.

                      II. DUTY: BALANCING TEST APPLIED

       Ms. Newell argues that the trial court erred in applying the test for the scope of
duty in a premises liability action. Specifically, Ms. Newell assigns error to the trial
court’s conclusion that any duty of care owed did not extend to the slush because it was
an open and obvious hazard. However, because Ms. Newell failed to establish that Elite’s
                                          -6-
duty extended to the area in which she fell, it is not necessary for us to review this issue
and it is pretermitted.

                                     CONCLUSION

      For the foregoing reasons, we affirm the order of the trial court granting summary
judgment in favor of Appellee. The case is remanded for such further proceedings as may
be necessary and are consistent with this opinion. Costs of the appeal are assessed to the
Appellant, Tina Lynn Davis Newell, and her surety, for which execution, if necessary,
may issue.

                                                 _________________________________
                                                 ARNOLD B. GOLDIN, JUDGE




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