                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                       January 14, 2015 Session

              JENNIFER WALDEN v. CENTRAL PARKING SYSTEM
                        OF TENNESSEE, INC., ET AL.

                        Appeal from the Circuit Court for Knox County
                          No. 1-519-09     Dale C. Workman, Judge


                   No. E2014-00939-COA-R3-CV-FILED-APRIL 27, 2015


Jennifer Walden (APlaintiff@) sued Central Parking System of Tennessee, Inc. (ACentral
Parking@) and Fort Sanders Regional Medical Center (AFort Sanders@)1 for negligence after
she allegedly suffered injuries as a result of a fall in a parking garage located in Knoxville,
Tennessee. Defendants filed a motion for summary judgment. The Circuit Court for Knox
County (Athe Trial Court@) granted defendants summary judgment after finding and holding,
inter alia, Athat no alleged fault on the part of the defendants was the cause of plaintiff=s
accident and injuries, that the same occurred due to her own failure to observe the open and
obvious condition of the premises that was there to be seen, and that reasonable minds could
not differ on this issue.@ We find and hold that there is a genuine disputed issue of material
fact regarding whether Plaintiff=s fault was greater than defendants=. We, therefore, reverse
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 Reversed
                                  Case Remanded

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

David H. Dunaway and Rick A. Owens, LaFollette, Tennessee, for the appellant, Jennifer
Walden.


        1
         Plaintiff initially sued only Central Parking. Fort Sanders later was added to the suit as a third-party
defendant. Plaintiff filed an amended complaint adding Fort Sanders as a defendant. By order entered June 7,
2010 the Trial Court allowed the dismissal with prejudice of Central Parking=s third-party complaint against
Fort Sanders, and also allowed for defendants= current counsel to be substituted as counsel of record for both
Central Parking and Fort Sanders.
R. Kim Burnette and Stacie D. Miller, Knoxville, Tennessee, for the appellees, Central
Parking System of Tennessee, Inc. and Fort Sanders Regional Medical Center.


                                                 OPINION

                                                Background

                On August 12, 2009 Plaintiff parked her vehicle in a parking garage owned by
and located near Fort Sanders, and operated by Central Parking.2 After attending an
appointment nearby, Plaintiff returned to the garage and entered the fourth floor. Plaintiff
fell while walking in the garage to get to her vehicle and suffered injuries to her right arm.
Plaintiff filed suit against Central Parking and Fort Sanders (collectively ADefendants@) for
negligence in October of 2009.3

                Discovery commenced, and Plaintiff testified during her deposition that she
never had been in that garage prior to the day of the accident. The weather that day was
Asunny and warm,@ and Plaintiff was returning to her vehicle a few minutes before noon.
There was both artificial and natural light in the parking garage at that time. Plaintiff
testified that as she walked toward her vehicle:

        Well, everything looked the same, and I was taking a few steps to go to my car,
        and all the sudden it just gave way with me. It just dropped and I didn=t see the
        difference in the height of the drop from the step down. Everything just went
        out from under me. I didn=t see the step down. . . . It all looked the same. I
        mean, I didn=t see anything but gray. . . . I didn=t see the step down. . . . I
        didn=t see it. I mean, I looked. I didn=t see anything that was yellow or
        anything, or I would have looked - - been more careful. I didn=t see any yellow
        markings. . . . I didn=t see it. It all looked the same. It looked like one level
        when I come through that door.

               When asked, Plaintiff agreed that she was looking down where she was
walking. She further stated: AIt all looked the same. I=m sorry, I can=t tell you why I didn=t
see it. I was looking. It all looked gray. It all looked the same. Maybe it was faded. I don=t

        2
         The facts discussed in this Opinion are taken largely from Plaintiff=s complaint and are included solely
to give context to the issue on appeal. These facts have not yet been proven and are not to be taken as
conclusively established.
        3
            See footnote 1.

                                                      -2-
know. Maybe it was faded too bad to see.@ Photographs of the scene of Plaintiff=s fall were
produced, but it was admitted that the photographs depict the scene from an angle and
viewpoint different from the one Plaintiff would have had as she was walking toward her
vehicle.

              Defendants filed a motion for summary judgment. After a hearing the Trial
Court entered its order on May 1, 2014 granting Defendants summary judgment after finding
and holding, inter alia:

      3. The plaintiff fell when she failed to observe that there was a step down
      from the curb of the landing area to the garage floor. In the opinion of the
      Court, the central issue for determination of the pending motion is whether the
      plaintiff should have seen the curb and step down. Per the plaintiff=s own
      testimony, although it was darker in the garage than in the lobby area, she
      could see without difficulty, she denied being distracted, and further testified
      that she was looking down where she was walking. Photographs were
      introduced that were identified by the plaintiff as accurately representing the
      conditions existing at the time and place of her accident. Specifically, those
      photographs were Exhibits 3, 4 and 5 to the deposition of plaintiff Walden and
      Exhibits 2 and 3 to the deposition of Bobby Bluford, former security officer of
      the defendant, who also identified those photographs as fairly and accurately
      representing the conditions existing at the time and place of plaintiff=s
      accident. Those photographs clearly show the presence of yellow striping on
      the curb and yellow striping in the no parking area immediately in front of the
      curb.

      4. In light of the foregoing, the Court concludes that no alleged fault on the
      part of the defendants was the cause of plaintiff=s accident and injuries, that the
      same occurred due to her own failure to observe the open and obvious
      condition of the premises that was there to be seen, and that reasonable minds
      could not differ on this issue. Accordingly, there is no genuine issue of
      material fact and defendants are entitled to judgment in their favor as a matter
      of law.

Plaintiff appeals the grant of summary judgment to this Court.




                                              -3-
                                         Discussion

            The dispositive issue in this case is whether the Trial Court erred in granting
summary judgment to Defendants and dismissing Plaintiff=s claims.

              Because this case was filed prior to July 1, 2011, we apply the standard of
review set out by our Supreme Court as follows:

             The scope of review of a grant of summary judgment is well
      established. Because our inquiry involves a question of law, no presumption
      of correctness attaches to the judgment, and our task is to review the record to
      determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
      Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
      1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

              A summary judgment may be granted only when there is no genuine
      issue of material fact and the moving party is entitled to judgment as a matter
      of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
      1993). The party seeking the summary judgment has the ultimate burden of
      persuasion Athat there are no disputed, material facts creating a genuine issue
      for trial . . . and that he is entitled to judgment as a matter of law.@ Id. at 215.
      If that motion is properly supported, the burden to establish a genuine issue of
      material fact shifts to the non-moving party. In order to shift the burden, the
      movant must either affirmatively negate an essential element of the
      nonmovant=s claim or demonstrate that the nonmoving party cannot establish
      an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ=g Co.,
      270 S.W.3d 1, 8-9 (Tenn. 2008). A[C]onclusory assertion[s]@ are not sufficient
      to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
      Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
      apply the federal standard for summary judgment. The standard established in
      McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
      sets out, in the words of one authority, Aa reasonable, predictable summary
      judgment jurisprudence for our state.@ Judy M. Cornett, The Legacy of Byrd v.
      Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
      175, 220 (2001).

              Courts must view the evidence and all reasonable inferences therefrom
      in the light most favorable to the non-moving party. Robinson v. Omer, 952
      S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
      only when the facts and the reasonable inferences from those facts would
                                              -4-
       permit a reasonable person to reach only one conclusion. Staples v. CBL &
       Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
       Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
       Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

               With regard to negligence our Supreme Court has instructed:

       [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).

Rice v. Sabir, 979 S.W.2d 305, 308-09 (Tenn. 1998) (footnote omitted). In Staples v. CBL &
Assocs., Inc., our Supreme Court further 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 at 42. 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 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).

              The Trial Court found that reasonable minds could not differ that the accident
occurred due to Plaintiff=s Aown failure to observe the open and obvious condition of the
premises that was there to be seen . . . .@ We disagree.

               Viewing the evidence in the light most favorable to Plaintiff, as we must at this
summary judgment stage of the proceedings, we find that Plaintiff testified that she was
looking where she was walking in the parking garage. Plaintiff specifically stated: AI was
looking. It all looked gray. It all looked the same.@ Furthermore, the evidence shows that
the photographs depicting the scene of the accident relied upon by the Trial Court were taken
                                               -5-
from an angle and viewpoint different from the one Plaintiff had while she was walking
toward her vehicle.

               This is not a situation where the Plaintiff was not looking where she was
walking. To the contrary, Plaintiff was, as found by the Trial Court, Alooking down where
she was walking@ and did not see the curb and step down. A reasonable person could
conclude that Plaintiff was keeping a careful lookout by Alooking down where she was
walking@ and that despite her doing so, Athe curb and step down@ were not open and obvious.
 Thus, there is a genuine issue of material fact regarding whether Plaintiff could have or
should have seen Athe curb and step down@ and whether any fault attributable to Plaintiff is
greater than the fault of Defendants. As reasonable minds could disagree as to whether
Plaintiff could have or should have seen Athe curb and step down,@ summary judgment on the
issue of comparative fault was not proper as there is a genuine disputed issue of material fact
regarding whether Plaintiff=s fault was greater than Defendants=. We, therefore, reverse the
grant of summary judgment and remand this case for further proceedings.

                                         Conclusion

              The judgment of the Trial Court granting summary judgment to Defendants is
reversed, 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 appellees, Central Parking System of Tennessee, Inc. and Fort Sanders Regional
Medical Center.



                                                    ________________________________
                                                    D. MICHAEL SWINEY, JUDGE




                                              -6-
