                                                                                              03/29/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  January 9, 2019 Session

  ADAM BOSWELL v. YOUNG MEN’S CHRISTIAN ASSOCIATION OF
                   MIDDLE TENNESSEE

                 Appeal from the Circuit Court for Williamson County
                    No. 2016-338       Joseph A. Woodruff, Judge
                      ___________________________________

                            No. M2018-00180-COA-R3-CV
                        ___________________________________

The plaintiff, a health club member, seeks damages from the health club based on its
alleged failure to protect him from sexual assaults in the locker room by another club
member. The complaint alleges that the health club “knew who the assailant was, and
was aware that [the assailant] had engaged in such actions many times prior to”
assaulting the plaintiff. The health club denied liability insisting it had no prior
knowledge of sexual assaults by the assailant or anyone else. It also contended the claims
were barred by the exculpatory provision in its membership agreement, which released
the club from liability for injuries “resulting from” the plaintiff’s “use of [the] facilities.”
The trial court found the exculpatory provision was unambiguous and summarily
dismissed the claims. Thereafter, and while this matter was on appeal, the Tennessee
Supreme Court revised the standards by which the enforceability of an exculpatory
agreement should be determined. See Copeland v. Healthsouth/Methodist Rehabilitation
Hospital, LP, 565 S.W.3d 260 (Tenn. 2018). We have determined that the plaintiff failed
to present competent evidence that the health club knew or should have known of prior
assaults by the assailant or anyone else. Because there is no genuine dispute of fact, the
health club is entitled to judgment as a matter of law, and the issue regarding the
enforceability of the exculpatory clause is moot. Accordingly, we affirm the grant of
summary judgment, albeit on other grounds than found by the trial court, and remand
with instructions to dismiss the complaint.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.

Dan Channing Stanley and Richard Everett Collins, II, Knoxville, Tennessee, for the
appellant, Adam Boswell.
Brian Walthart and Richard Charles Mangelsdorf, Jr., Nashville, Tennessee, for the
appellee, Young Men’s Christian Association of Middle Tennessee.

                                                OPINION

                              FACTUAL AND PROCEDURAL HISTORY

       The matters at issue pertain to three alleged sexual assaults of a member of the
Young Men’s Christian Association of Middle Tennessee (“the YMCA”) by another
member. Specifically, Adam Boswell (“Plaintiff”) alleges that Jack Dabney sexually
assaulted him by groping his genitals on three occasions in the men’s locker room of the
YMCA’s Maryland Farms facility in 2015 and 2016.1

       The first incident occurred on July 10, 2015. After working out, Plaintiff changed
into his swimming suit and entered the hot tub. Shortly thereafter, a man who was
unknown to Plaintiff entered the hot tub, sat next to Plaintiff and reached into Plaintiff’s
swimming suit. Plaintiff leaped from the tub and left the facility without reporting the
incident to anyone.

       The second incident occurred one week later, on July 17, 2015. While Plaintiff
was using the steam room, the same man who assaulted Plaintiff on July 10 entered the
steam room, approached Plaintiff and put his hand on Plaintiff’s genitals. Plaintiff
jumped up and left the steam room but, this time, Plaintiff reported the incident to the
YMCA’s membership greeter, Erin Hill. Although Plaintiff still did not know the identity
of the man who groped him, he described the man to Ms. Hill; however, Plaintiff
declined to review video footage in order to identify the man or otherwise assist in an
investigation.2 According to Plaintiff’s deposition, Ms. Hill requested that Plaintiff “go
through the videotape” to identify the individual who groped him, but Plaintiff refused.
The relevant colloquy on this point reads:

        Q:      Well, [Ms. Hill] told you she was willing for you to come back and
                she would convene a session for you to look at video footage. Is that
                something you considered doing?


        1
         Mr. Dabney, who was a defendant in this action, denied assaulting Plaintiff. Thereafter, Plaintiff
dismissed his claims against Mr. Dabney, and he is not a party to this appeal. Whether Mr. Dabney paid
any damages to Plaintiff to settle the claims against him does not appear in this record.
        2
          In his deposition, Plaintiff stated that he was on federal probation at the time and did not want to
have to inform his probation officer about the incidents.



                                                    -2-
       A:     Yes, I did consider it.

       Q:     Did you do it?

       A:     No, sir.

       Q:     Why not?

       A:     I did not want to be involved in this. I did not want a federal
              investigation. I did not want to have to talk to [my parole officer]
              about what went on. I had a fear [of] being transported to the holding
              facility in Kentucky when the federal government pursued an
              investigation. I didn’t want to be a part of any of this.

       Instead of identifying his assailant, Plaintiff filled out a comment card, requesting
the YMCA “put somebody inside the shower area to protect people from being sexually
assaulted.”

       The third incident occurred seven months later, on February 12, 2016, while
Plaintiff was again using the steam room. The same individual approached Plaintiff and
groped Plaintiff’s leg. Plaintiff left the steam room and went to the Maryland Farms
YMCA Executive Director, Jodi Schroer. Plaintiff told Ms. Schroer about the incidents.
Although Plaintiff had not assisted the YMCA in identifying his assailant after the second
incident, he complained that no action had been taken. When Plaintiff agreed to help with
the investigation and assist in identifying his assailant, Ms. Schroer asked a male staff
member to go into the men’s locker room with Plaintiff. Plaintiff pointed to the assailant,
and the staff member identified him as Jack Dabney. When they informed Ms. Schroer of
the assailant’s identity, Ms. Schroer informed Plaintiff that she would investigate the
matter, and Plaintiff left the building. Mr. Dabney continued to have access to the
YMCA’s facilities during the investigation.

       Ms. Schroer immediately notified her supervisor of Plaintiff’s report and the
supervisor advised Ms. Schroer to obtain the exact dates and times of the alleged
incidents. Ms. Schroer then called Plaintiff to obtain more information. When he did not
answer, she left a message asking him to return her call. She also sent him an email.
Plaintiff, however, never responded to either.

        Not having heard from Plaintiff, Ms. Schroer again called Plaintiff on
February 18, 2016, in an attempt to obtain more information to aid in her investigation.
The following day, February 19, Plaintiff returned to the Maryland Farms facility. When
Plaintiff saw Mr. Dabney, he went to Ms. Schroer and again complained that nothing had
been done, at which time Ms. Schroer informed Plaintiff “the YMCA was still processing
[his] reports of sexual assault.”
                                           -3-
       As Ms. Schroer explained in her deposition, the investigation included a review of
the YMCA’s “scan reports” that showed when members enter the facility. The scan
reports showed that Mr. Dabney had used his membership card to enter the facility on
two of the dates at issue but not on July 10, 2015, the date of the first assault.
Nevertheless, another membership card on Jack Dabney’s account was scanned on that
date.3

       Ms. Schroer testified that the YMCA ultimately terminated Mr. Dabney’s
membership. As she explained, although it was possible that Plaintiff’s version of events
might have been inaccurate in some respects, the YMCA “erred on the side of caution”
and determined that limiting or terminating Mr. Dabney’s access “was the better course
of action.”

       Five months later, on July 10, 2016, Plaintiff filed a complaint asserting claims
against Jack Dabney for assault and battery, and claims against the YMCA for
negligence, negligent infliction of emotional distress, intentional infliction of emotional
distress, and vicarious liability for the assault.4 The Complaint alleged, inter alia, that the
YMCA knew or should have known that Mr. Dabney engaged in the described behavior
on earlier occasions but did not enact necessary security procedures to protect its
members.5 Both defendants filed answers denying liability. In pertinent part, the YMCA
denied having any knowledge of prior assaults by anyone at the facility and asserted
numerous affirmative defenses.

       The YMCA filed a Motion for Partial Summary Judgment on Plaintiffs’ claims for
negligence and negligent infliction of emotional distress. The YMCA asserted that
Plaintiff waived his right to sue the YMCA for injuries resulting from his use of the
YMCA’s facilities by signing a Membership Application that included an exculpatory
clause that provided:

       In consideration for gaining membership and/or being allowed to
       participate in the activities and programs of the YMCA of Middle
       Tennessee (“YMCA”) and to use its facilities (whether owned or leased),


       3
         Ms. Schroer surmised that Mr. Dabney might have accessed the facility that day by using a
family member’s card by mistake.
       4
          The Complaint alleged that Mr. Dabney served on the YMCA’s board of directors, which was
later proven to be untrue.
       5
           The Complaint did not state a claim against the YMCA for gross negligence.



                                                  -4-
       equipment and machinery, I do hereby waive, release and forever discharge
       the YMCA and its officers, agents, employees, volunteers, representatives,
       directors and all other from any and all responsibility or liability for injuries
       or damages resulting from my participation in such activities or programs
       or my use of such facilities, equipment or machinery, even if such damage
       or injury results from a negligent act or omission.

       On February 13, 2013, the trial court entered a scheduling order that required the
parties to complete discovery related to the Motion for Partial Summary Judgment by
April 28, 2017.

        On June 1, 2017, Plaintiff filed a response in opposition to the YMCA’s motion.
Plaintiff admitted signing the Membership Application but contended the exculpatory
provision did not apply because his injuries did not “result from” his use of the YMCA’s
facilities. In addition, Plaintiff argued that public policy prevented the YMCA from
relying on the exculpatory provision because the Complaint alleged gross negligence.
Plaintiff included an affidavit in which he alleged, inter alia, that Ms. Hill told him the
YMCA knew about inappropriate, sexual conduct in the men’s locker room:

       I described both incidents to Ms. Hill in full detail. During my discussion
       with Ms. Hill, she informed me that inappropriate sexual conduct in the
       men’s locker room was a recurring problem that the YMCA was fully
       aware of. She also told me that Dabney had engaged in similar conduct
       many times before.

       The YMCA filed a Reply, disputing whether Plaintiff raised a claim for gross
negligence and contending that Ms. Hill’s statement was inadmissible hearsay.

       On July 12, 2017, the trial court granted the YMCA’s Motion for Partial Summary
Judgment based on the language of the exculpatory provision. The court found the
language was unambiguous and that Plaintiff’s injuries resulted from Plaintiff’s “use of”
the facilities. As a result, the court dismissed Plaintiff’s claims for negligence and
negligent infliction of emotional distress.

      On September 26, 2017, Plaintiff voluntarily dismissed his claims against
Mr. Dabney with prejudice.

       On October 10, 2017, the YMCA filed a Motion for Summary Judgment seeking
dismissal of Plaintiff’s remaining claims of assault and battery and intentional infliction
of emotional distress. Plaintiff did not respond to the motion. The trial court entered an
order on January 3, 2018, dismissing Plaintiff’s remaining claims against the YMCA.
This appeal followed.

                                             -5-
       Plaintiff appeals the trial court’s July 12, 2017 order that dismissed Plaintiff’s
claims for negligence and negligent infliction of emotional distress. Plaintiff also
contends the trial court erred by not recognizing that the record demonstrates a claim of
gross negligence on the part of the YMCA, which the exculpatory clause cannot bar.
Plaintiff does not appeal the dismissal of his claims for assault and battery, and
intentional infliction of emotional distress.

       The issues before this court, as we have restated them, are as follows:

       (1) Whether the record demonstrates gross negligence on the part of the YMCA,
           such that the exculpatory clause, no matter how broadly construed, cannot
           operate to excuse the YMCA from liability;

       (2) Whether Plaintiff presented competent evidence sufficient to create a question
           of fact on his claim that the YMCA is liable for its negligence in failing to
           protect Plaintiff from “a sexual assault perpetrated by another member of the
           YMCA known to have engaged in similar conduct in the past;” and, if so,

       (3) Whether the exculpatory clause precludes Plaintiff from “suing the YMCA for
           its negligence in failing to protect [Plaintiff] from a sexual assault perpetrated
           by another member of the YMCA known to have engaged in similar conduct in
           the past.”

                                 STANDARD OF REVIEW

        This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.;
Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997). In so doing, we consider the evidence
in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

        Summary judgment should be granted 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. When the party moving for
summary judgment does not bear the burden of proof at trial, it 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, 477 S.W.3d at 264.

                                            -6-
       When a motion for summary judgment is made and supported as provided in
Tennessee Rule of Civil Procedure 56, the nonmoving party may not rest on the
allegations or denials in its pleadings. Id. at 265. Instead, the nonmoving party must
respond with specific facts “showing that there is a genuine issue for trial.” Id. (quoting
Tenn. R. Civ. P. 56.03). A fact is material “if it must be decided in order to resolve the
substantive claim or defense at which the motion is directed.” Byrd v. Hall, 847 S.W.2d
208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could legitimately
resolve that fact in favor of one side or the other.” Id.

                                                ANALYSIS

                                      I.    GROSS NEGLIGENCE

        Plaintiff contends the record demonstrates a claim that the YMCA was grossly
negligent in failing to take timely and appropriate measures to prevent the sexual assaults
by Mr. Dabney because it shows that the YMCA knew or should have known of
Mr. Dabney’s conduct prior to his assaults on Plaintiff. He also contends the exculpatory
clause, no matter how broadly construed, cannot operate to bar such a claim. The YMCA
insists Plaintiff did not state a claim for gross negligence in the Complaint and the record
does not demonstrate such a claim. We agree with the YMCA.

        Tennessee Rule of Civil Procedure 8.01 requires that a pleading that sets forth a
claim for relief “contain (1) a short and plain statement of the claim showing that the
pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader
seeks.” “An essential purpose of the complaint is ‘to give notice of the issues to be tried
so that the opposing party can adequately prepare for trial.’” Harman v. Univ. of
Tennessee, 353 S.W.3d 734, 736 (Tenn. 2011) (quoting Keisling v. Keisling, 92 S.W.3d
374, 377 (Tenn. 2002). Simply put, the Complaint does not state a claim for gross
negligence. Moreover, Plaintiff implicitly acknowledges this deficiency by framing the
issue on appeal as “whether the record in this case demonstrates gross negligence.” Thus,
Plaintiff waived this claim unless “the record demonstrates a claim for gross negligence.”

       Plaintiff’s brief discusses this issue in less than two pages and nowhere in the brief
does Plaintiff cite to evidence which “demonstrates” a claim for gross negligence.6 This
deficiency is fatal to Plaintiff’s claim because Rule 6(a) of the Rules of the Court of
Appeals of Tennessee states that the argument for each issue shall contain:



       6
           Furthermore, Plaintiff does not cite to any allegation, sentence or paragraph in the Complaint.



                                                    -7-
          (1) A statement by the appellant of the alleged erroneous action of the
              trial court which raises the issue . . . , with citation to the record
              where the erroneous or corrective action is recorded.

          (2) A statement showing how such alleged error was seasonably called
              to the attention of the trial judge with citation to that part of the
              record where appellant’s challenge of the alleged error is recorded.

          (3) A statement reciting wherein appellant was prejudiced by such
              alleged error, with citations to the record showing where the
              resultant prejudice is recorded.

          (4) A statement of each determinative fact relied upon with citation to
              the record where evidence of each such fact may be found.

Tenn. Ct. App. R. 6(a) (emphasis added). Subsection (b) of Rule 6 goes on to state in
pertinent part: “No assertion of fact will be considered on appeal unless the argument
contains a reference to the page or pages of the record where evidence of such fact is
recorded.” Additionally, Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure
requires an appellant’s brief to contain an argument that sets forth, inter alia, “the
contentions of the appellant with respect to the issues presented, . . . with . . . appropriate
references to the record (which may be quoted verbatim) relied on.” Tenn. R. App. P.
27(a)(7)(A). Plaintiff’s brief fails to comply with either rule.

       As has been noted in numerous decisions, “[t]his court is under no duty to verify
unsupported allegations in a party’s brief.” Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct.
App. 2000) (citing Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn. Ct. App. 1993)).
Furthermore, our courts have routinely held that the failure to make appropriate
references to the record as required by Rule 27(a)(7) constitutes a waiver of the issue. Id.
at 55. Plaintiff’s brief does not provide citations to facts that support his contention that
the YMCA was grossly negligent; therefore, he has waived the issue. Accordingly, we
hold that Plaintiff failed to demonstrate a claim for gross negligence and that failure
leaves only Plaintiff’s claims of ordinary negligence.

                              II.   ORDINARY NEGLIGENCE

       Plaintiff contends the trial court erred by dismissing his ordinary negligence
claims based on the exculpatory clause in the membership agreement. The YMCA
counters by insisting the trial court’s decision was correct, even under the new standard
established in Copeland v. Healthsouth/Methodist Rehabilitation Hospital, LP,
565 S.W.3d 260 (Tenn. 2018). The YMCA also contends “[t]here are no facts from
which it would be reasonable to conclude that it [was] reasonably foreseeable that a crime
would be committed on the YMCA’s premises,” and “[t]here are no facts in the record
                                             -8-
from which the trial court, or this Court, could conclude that the YMCA was . . .
negligent at all.” We will address the YMCA’s challenge to the sufficiency of the
evidence first.

       It is important to note that Plaintiff is seeking to hold the YMCA liable for the
criminal acts of Mr. Dabney. Thus, we must be mindful of the duty a business owes to
protect its customers—in this case, a member of the YMCA—from the criminal acts of
third parties:

       A business ordinarily has no duty to protect customers from the criminal
       acts of third parties which occur on its premises. The business is not to be
       regarded as the insurer of the safety of its customers, and it has no absolute
       duty to implement security measures for the protection of its customers.
       However, a duty to take reasonable steps to protect customers arises if the
       business knows, or has reason to know, either from what has been or should
       have been observed or from past experience, that criminal acts against its
       customers on its premises are reasonably foreseeable, either generally or at
       some particular time.

McClung v. Delta Square Ltd., 937 S.W.2d 891, 902 (Tenn. 1996).

       The YMCA filed a properly-supported motion for summary judgment, thereby
shifting the burden of persuasion to Plaintiff. See Rye, 477 S.W.3d at 265. Based on the
legal principle in McClung, for Plaintiff’s negligence claims to survive summary
judgment, Plaintiff had the burden to present or identify competent evidence sufficient to
create a genuine dispute of fact that the YMCA knew or should have known prior to the
assaults on Plaintiff that criminal acts by Mr. Dabney on its premises were reasonably
foreseeable. Stated another way, Plaintiff was required to respond with facts “showing
that there is a genuine issue for trial.” Id. at 264 (quoting Tenn. R. Civ. P. 56.03). A
“genuine issue” exists if “a reasonable jury could legitimately resolve that fact in favor of
one side or the other.” Byrd, 847 S.W.2d at 215.

        “As a practical matter, the requisite degree of foreseeability essential to establish
a duty to protect against criminal acts will almost always require that prior instances of
crime have occurred on or in the immediate vicinity of defendant’s premises.” McClung,
937 S.W.2d at 902. The record includes facts that could establish that the YMCA was
aware that inappropriate but consensual liaisons previously occurred at its facilities.
However, there is no competent evidence that the YMCA was aware of sexual assaults
by Mr. Dabney or others at the facility. Simply put, there is no evidence of any criminal
acts or assaults against YMCA members or invitees in its facility. Moreover, there is no
competent evidence from which a reasonable person or jury could conclude that an
assault such as that by Mr. Dabney was foreseeable.

                                            -9-
       Plaintiff submitted an affidavit in which he states that Ms. Hill told him on the
date of the second incident that Mr. Dabney “had engaged in similar conduct many times
before.” However, Ms. Hill’s purported statement, even if admissible, fails to support a
finding that the YMCA or Ms. Hill knew or should have known that Mr. Dabney had
criminally assaulted anyone at a YMCA facility. When read closely, it is readily apparent
that her statement merely indicates that the YMCA had prior knowledge that
“inappropriate sexual conduct in the men’s locker room was a recurring problem that the
YMCA was fully aware of” and “that [Mr.] Dabney had engaged in similar conduct
many times before.” Thus, if admissible, Ms. Hill’s statement would have shown that
Mr. Dabney had engaged in inappropriate sexual conduct in the men’s locker room,
which is not probative of whether the YMCA knew Mr. Dabney had “sexually assaulted”
or engaged in “criminal conduct” at a YMCA facility.

        Significantly, however, what Ms. Hill purportedly said to Plaintiff is inadmissible
hearsay. A hearsay statement “is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Such a statement is not admissible unless it is shown to
be admissible as provided by the rules of evidence or otherwise by law. Tenn. R. Evid.
802. “If a statement is hearsay, but does not fit one of the exceptions, it is inadmissible,
and the court must exclude the statement.” Kendrick v. State, 454 S.W.3d 450, 479
(Tenn. 2015). Plaintiff offered his recitation of the statement purportedly made by
Ms. Hill to prove the YMCA had prior knowledge of Mr. Dabney’s criminal conduct.
Because it was offered for the truth of the matter asserted, Ms. Hill’s purported statement
was hearsay. Moreover, Plaintiff failed to establish that her hearsay statement “fit one of
the exceptions” to the hearsay rule. Accordingly, her statement would be inadmissible at
trial.

        The same rule applies to affidavits submitted at the summary judgment stage.
Tennessee Rule of Civil Procedure 56.06 provides, in relevant part, “Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.” The hearsay attributed to Ms. Hill fails
to meet this test. Because Ms. Hill’s purported statement is inadmissible hearsay, it
cannot be considered at the summary judgment stage. See Perlberg v. Brencor Asset
Mgmt., Inc., 63 S.W.3d 390, 396–97 (Tenn. Ct. App. 2001); see also Byrd, 847 S.W.2d
at 215 (“To permit an opposition to be based on evidence that would not be admissible at
trial would undermine the goal of the summary judgment process to prevent unnecessary
trials since inadmissible evidence could not be used to support a jury verdict.”).

        The only other facts on which Plaintiff relies to establish that the YMCA knew or
should have known of Mr. Dabney’s criminal conduct are set forth in one newspaper
article and Craigslist advertisements. The article and ads indicate that persons were
                                           - 10 -
coordinating dates and times to meet at a YMCA facility to engage in consensual, albeit
inappropriate, sexual acts in a health club locker room. However, a newspaper article and
a “web posting” such as a Craigslist advertisement are inadmissible hearsay. See State v.
Martin, No. 02C01-9512-CC-00389, 1997 WL 471158, at *6 (Tenn. Crim. App. Aug. 18,
1997) (“[T]he content of newspaper articles is hearsay that does not fall within an
exception to the hearsay rule, and thus is inadmissible at trial.” (citing Tenn. R. Evid. 801
to 803)); see also United States v. El-Mezain, 664 F.3d 467, 496 (5th Cir. 2011), (stating
that newspapers, leaflets, the internet, and friends are sources that “constitute classic
hearsay rather than personal knowledge”), modified, (Dec. 27, 2011); United States v.
Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (“The web postings were not statements made
by declarants testifying at trial, and they were being offered to prove the truth of the
matter asserted. That means they were hearsay.” (citing Fed. R. Evid. 801)).

       As for Plaintiff’s statement to Ms. Hill in 2015 and his request on the comment
card, neither identified Mr. Dabney. Moreover, Plaintiff refused to help identify the
assailant at that time or provide additional information that would have assisted the
YMCA in an investigation.

       The foregoing reveals that Plaintiff failed to present or identify any competent
evidence to support a finding the YMCA knew or should have known that it was
reasonably foreseeable that Mr. Dabney would sexually assault someone. Based on these
facts, we find that Plaintiff failed to carry his burden to “‘set forth specific facts’ at the
summary judgment stage ‘showing that there is a genuine issue for trial.’” Rye,
477 S.W.3d at 265 (quoting Tenn. R. Civ. P. 56.06). Therefore, we affirm the summary
dismissal of Plaintiff’s claims, albeit on different grounds than the trial court.7

                              III.    THE EXCULPATORY CLAUSE

       Because Plaintiff failed to create a dispute of a material fact concerning his
negligence claims and all such claims were dismissed, the issue of whether the
exculpatory clause is enforceable is now moot.


        7
           The fact we affirmed the summary dismissal of Plaintiff’s claims on different grounds does not
require a reversal of the trial court’s decision because this court may affirm a grant of summary judgment
on grounds different from those cited by the trial court. See Bobo v. City of Jackson, 511 S.W.3d 14, 26
n.14 (Tenn. Ct. App. 2015) (“[W]e are entitled . . . to affirm the entry of summary judgment on grounds
that differ from those forming the basis of the trial court’s decision.”); see also Lewis v. NewsChannel 5
Network, L.P., 238 S.W.3d 270, 302 n.31 (Tenn. Ct. App. 2007) (“The Court of Appeals may affirm a
judgment on different grounds than those relied on by the trial court when the trial court reached the
correct result.” (citations omitted)).



                                                 - 11 -
                                  IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with
instructions to dismiss the Complaint. Costs of appeal are assessed against Appellant,
Adam Boswell.



                                                 ________________________________
                                                 FRANK G. CLEMENT JR., P.J., M.S.




                                        - 12 -
