                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 January 19, 2016 Session


               HOMER McCAIG, ET AL. v. ROY L. WHITMORE

                  Appeal from the Circuit Court for Carroll County
                      No. 13CV38     Donald E. Parish, Judge

                            ________________________________

              No. W2015-00646-COA-R3-CV – Filed February 22, 2016
                      _________________________________


This is a premises liability case. Appellant Homer McCaig sustained multiple injuries while
operating an all-terrain vehicle (ATV) on Appellee Roy Whitmore‘s property. The trial court
determined that Mr. Whitmore owed no duty to the McCaigs based on the Tennessee
Recreational Use Statute (―TRUS‖), Tennessee Code Annotated Sections 70-7-101 et seq.
The trial court granted summary judgment in favor of the Appellee based on its determination
that no exceptions to the statute were applicable. Discerning no error, we affirm and remand.

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

KENNY ARMSTRONG, J. delivered the opinion of the Court, in which ARNOLD B. GOLDIN, and
BRANDON O. GIBSON, JJ., joined.

Adam M. Nahmias, Memphis, Tennessee, for the appellants, Homer McCaig and Kelly
McCaig.

Bradford D. Box, Nathan E. Shelby, and Adam P. Nelson, Jackson, Tennessee, for the
appellee, Roy L. Whitmore.


                                        OPINION

                       I.      Facts and Procedural History
       The material facts in this case are not in dispute. On July 7, 2012, Appellant Homer
McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Appellee
Roy Whitmore‘s property. Mr. Whitmore‘s property consists of approximately seven acres
of land and a residence. With the exception of the residence, the property is largely
undeveloped. Mr. McCaig and his family were attending a social gathering at Mr.
Whitmore‘s home when the accident occurred. Mr. Whitmore took rides with Mr. McCaig‘s
wife and son, providing both with detailed instructions on the proper operation of the ATV.
Mr. Whitmore also provided Mrs. McCaig and her son instructions on areas to avoid
including the lawn and the concrete driveway. Mr. McCaig neither asked for nor received
the same detailed instructions from Mr. Whitmore. While riding Mr. Whitmore‘s ATV, Mr.
McCaig flipped the vehicle, which landed on top of him. Mr. McCaig sustained significant
injuries, including nerve damage to his spine, legs, feet, and hands that prevent him from
walking unassisted.

        On July 3, 2013, Mr. McCaig and his wife Kelly (together, ―Appellants‖) filed the
instant lawsuit against Mr. Whitmore. The McCaigs allege that Mr. Whitmore is liable to
them for negligence as a result of failing to properly instruct Mr. McCaig on how to operate
the ATV and by failing to warn Mr. McCaig of dangerous and concealed conditions on his
property that were known to Mr. Whitmore. Specifically, the McCaigs allege that Mr.
Whitmore failed to warn Mr. McCaig to avoid bumps in the lawn, to avoid the edges of the
concrete driveway, and to avoid steel guidewires, all of which he alleges were concealed to
him, but known to Mr. Whitmore. Mrs. McCaig made claims against Mr. Whitmore for loss
of consortium, loss of companionship, loss of services, and medical expenses to the extent
that she is responsible for her husband‘s medical bills. On September 9, 2013, Mr. Whitmore
filed his answer, in which he denied any liability for Mr. McCaig‘s injuries. In his answer,
Mr. Whitmore specifically averred that ―the Recreational Use Statute, codified at Tennessee
Code Annotated [Section] 70-7-104, bars any recovery by [the McCaigs] against [Mr.
Whitmore].‖

       On October 8, 2014, Mr. Whitmore filed a motion for summary judgment along with a
statement of undisputed facts alleging that he owed no duty to Mr. McCaig. The McCaigs
opposed Mr. Whitmore‘s motion, which was heard by the trial court on February 6, 2015.
The trial court granted the motion for summary judgment by order of February 25, 2015,
finding that Whitmore had negated an essential element of the McCaigs‘ claim and that he
owed no duty to the McCaigs.
                                   II.    Issues

       After reviewing the record and the arguments submitted by Appellants, we
perceive the dispositive issues to be:


                                           -2-
       1.     Whether the trial court erred in finding that the ―recreational use statute‖ was
              applicable to the facts in this case.
       2.     Whether any of the exceptions to the ―recreational use statute‖ outlined in
              Tennessee Code Annotated Section 70-7-104 are applicable to the facts in this
              case.
       3.     Whether the trial court erred as a matter of law in granting Appellee‘s motion
              for summary judgment.

                             III.    Standard of Review

       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); Dick Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc.,
395 S.W.3d 653, 671 (Tenn. 2013); and Rye v. Women’s Care Center of Memphis, MPLLC,
__ S.W.3d ___, 2015 WL 6457768 at *12 (Tenn. Oct 26, 2015). 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. Rye __ S.W.3d at ___, 2015 WL 6457768, at *12 (citing
Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013); Hughes v. New Life Dev. Corp., 387
S.W.3d 453, 471 (Tenn. 2012)).

      For actions initiated on or after July 1, 2011, the standard of review for summary
judgment is governed by Tennessee Code Annotated Section 20-16-101. The statute
provides:

       In motions for summary judgment in any civil action in Tennessee, the moving
       party who does not bear the burden of proof at trial shall prevail on its motion
       for summary judgment if it:

       (1)  Submits affirmative evidence that negates an essential element of the
       nonmoving party‘s claim; or

       (2)    Demonstrates to the court that the nonmoving party‘s evidence is
       insufficient to establish an essential element of the nonmoving party‘s claim.

Tenn. Code Ann. §20-16-101. However, ―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.‖ Rye, 2015 WL 6457768 at *22. Rule
                                              -3-
56.03 requires that the moving party support its motion with ―a separate concise statement of
the 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. If the moving party fails to meet its initial
burden of production, the nonmoving party‘s burden is not triggered, and the court should
dismiss the motion for summary judgment. Town of Crossville Hous. Auth., 465 S.W.3d
574, 578-79 (Tenn. Ct. App. 2014)(citing Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83
(Tenn. 2008)). As our Supreme Court recently opined:

       [T]o 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 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.

Rye, 2015 WL 6457768 at *22 (emphasis in original). If adequate time for discovery has
been provided and 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, then the
motion for summary judgment should be granted. Id. Thus, even where the determinative
issue is ordinarily a question of fact for the jury, summary judgment is still appropriate if the
evidence is uncontroverted and the facts and inferences to be drawn therefrom make it clear
that reasonable persons must agree on the proper outcome or draw only one conclusion.
White v. Lawrence, 975 S.W.2d 525, 529-30 (Tenn. 1998).

        To the extent our review requires an interpretation of the TRUS, we are guided by the
familiar principles of statutory construction. The primary objective of statutory construction
is to determine the intent of the legislature and give effect to that intent. Walker v. Sunrise
Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To achieve this objective, we
begin by examining the language of the statute in question. Curtis v. G.E. Capital Modular
Space, 155 S.W.3d 877, 881 (Tenn. 2005). This Court presumes that the legislature intended
every word be given full effect. Lanier v. Rains, 229 S.W.3d 656, 661 (Tenn. 2007).
Therefore, if the ―language is not ambiguous ... the plain and ordinary meaning of the statute
must be given effect.‖ In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007). It is a
well-settled rule of construction that ―statutes ‗in pari materia‘—those relating to the same
subject or having a common purpose—are to be construed together, and the construction of
one such statute, if doubtful, may be aided by considering the words and legislative intent
                                               -4-
indicated by the language of another statute.‖ Graham v. Caples, 325 S.W.3d 578, 581-82
(Tenn. 2010) (citing Wilson v. Johnson Cnty., 879 S.W.2d 807, 809 (Tenn. 1994)).

                                    IV.     Analysis

             A.     Applicability of the Tennessee Recreational Use Statute

        The McCaigs allege that Mr. Whitmore was negligent as a result of failing to provide
Mr. McCaig with appropriate information and instructions regarding the proper and safe
operation of the ATV. They further allege that Mr. Whitmore was negligent in failing to
warn Mr. McCaig about conditions at the residence that were concealed and created
dangerous conditions on the property, including bumps in the lawn, and edges of the concrete
driveway that were higher than the grass. In order to bring a successful suit based on a claim
of negligence, the plaintiff must establish: (1) a duty of care owed by the defendant to the
plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of
that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause.
Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993) (citing McClenahan v. Cooley, 806
S.W.2d 767, 774 (Tenn. 1991); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn.
1985)). The first element that must be established is ―a duty of care owed by the defendant to
the plaintiff.‖ Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009). The
element of duty, and the dispositive issue in this case, is the legal obligation of a defendant to
conform to a reasonable person‘s standard of care in order to protect against unreasonable
risks of harm. Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn. 2003); McClung v. Delta
Square Ltd. P'ship., 937 S.W.2d 891, 894 (Tenn. 1996); Giggers, 277 S.W.3d at 364. ―The
existence of that duty is the initial requirement of proof to establish a negligence claim.‖
Friedenstab v. Short, 174 S.W.3d 217, 218 (Tenn. Ct. App. 2004). In considering this
element, the relevant inquiry is ―whether the particular defendant owes a duty of care to the
particular plaintiff involved.‖ Main Street Market LLC v. Weinberg, 432 S.W.3d 329, 337
(Tenn. Ct. App. 2013). ―[W]hether a defendant owes a duty of care to a plaintiff is a
question of law to be determined by the court.‖ Id. at 355 (citing West v. E. Tennessee
Pioneer Oil Co., 172 S.W. 3d 545, 550 (Tenn. 2005)). Where a Plaintiff cannot establish the
existence of a duty, his claim must fail. Satterfield v. Breeding Insulation Co., 266 S.W.3d
347, 355 (Tenn. Ct. App. 2008).

        In the February 25, 2015 order granting summary judgment, the trial court found that
Mr. Whitmore ―owed no duty to the [McCaigs] based upon the Tennessee Recreational Use
Statute codified at Tenn. Code Ann. §70-7-101 et. seq.‖ That statute provides in pertinent
part as follows:

       (a) The landowner, lessee, occupant, or any person in control of land or
       premises owes no duty of care to keep such land or premises safe for entry or
                                           -5-
       use by others for such recreational activities as . . . off-road vehicle riding, . . .
       and nor shall such landowner be required to give any warning of hazardous
       conditions, uses of, structures, or activities on such land or premises to any
       person entering on such land or premises for such purposes, except as provided
       in § 70-7-104.

Tenn. Code Ann. § 70-7-102 (emphasis added).

       In Parent v. State, 991 S.W.2d 240, 243 (Tenn. 1999), the Tennessee Supreme Court
outlined a two-pronged analysis to determine whether immunity can be granted under the
recreational use statute. First, the court must determine whether the activity alleged is a
recreational activity as defined by the statute. Id. If the answer to the first inquiry is yes, then
the court must determine whether any of the statutory exceptions or limitations to the
immunity defense are applicable. Id. Accordingly, if the activity at issue here is included in
Tennessee Code Annotated Section 70-7-102 and no exceptions apply, Mr. Whitmore owed
no duty to Mr. McCaig. However, if section 70-7-102 is applicable, but an exception is also
applicable, Mr. Whitmore may be subject to liability. Id.

        In their appeal, the McCaigs argue that the recreational use statute does not apply to
the facts in this case. Specifically, Appellants argue that they did not enter Mr. Whitmore‘s
property for the purpose of engaging in recreational activities of any kind including off-road
vehicle riding, and therefore the statute is inapplicable here. Instead, the Appellants argue
that they should be afforded the status of invitees. Generally, when determining the duty that
possessors of land owe to a particular plaintiff, the court ―balances the foreseeability and
gravity of the potential harm against the feasibility and availability of alternatives that would
have prevented the harm.‖ Hale v. Ostrow, 166 S.W.3d 713, 716-17 (Tenn. 2005) (internal
citations omitted). However, by enacting the TRUS, the legislature has replaced the common
law with a specific statutory standard when the plaintiff is engaged in recreational activities
on land owned by another.

        The McCaigs argue that Tennessee Code Annotated Section 70-7-102 does not apply
in this case because they did not enter Mr. Whitmore‘s property ―for the purpose of engaging
in recreational activities of any kind including off-road vehicle riding.‖ As set out in full
context above, the statute provides ―[t]he landowner . . . or any person in control of land or
premises owes no duty of care to keep such land or premises safe for entry or use by others
for such recreational activities as . . . off-road vehicle riding . . .‖ Tenn. Code Ann. § 70-7-
102 (emphasis added). As opposed to the conjunctive use of ―and,‖ ―[t]he disjunctive ‗or‘
usually . . . separates words or phrases in an alternate relationship, indicating that either of
the separated words or phrases may be employed without the other.‖ Pryor
Oldsmobile/GMC Co. v. Tennessee Motor Vehicle Comm'n, 803 S.W.2d 227, 230 (Tenn.
Ct. App. 1990). In interpreting statutes, we apply general principles of grammatical
                                               -6-
construction. McCollum v. Huffstutter, No. M2002-00051-COA-R3-CV, 2002 WL
31247077, at *4 (Tenn. Ct. App. Oct. 8, 2002). Accordingly, interpreting the ―or‖ as
disjunctive, we read the statute to confer immunity to the landowner against those who enter
or use his property for recreational use. In other words, the immunity conferred by
Tennessee Code Annotated Section 70-7-102 is not limited to situations in which a person
enters solely for the purpose of recreational activities. Thus, we conclude that Tennessee
Code Annotated Section 7-7-102 is applicable to this case. The question then becomes
whether any exception to immunity applies.

                              B.     Exceptions to Immunity

       The McCaigs argue several exceptions to immunity: (1) that the accident occurred on
the ―landowner‘s principal place of residence;‖ (2) Mr. Whitmore‘s conduct amounts to gross
negligence; and (3) Mr. Whitmore‘s conduct amounts to willful and wanton conduct. We
address each argument in turn.

                               Principal Place of Residence

      The McCaigs argue that the ―land and premises‖ where the accident occurred was the
―landowner‘s principal place of residence‖ and is, therefore, specifically excluded from
coverage under Tennessee Code Annotated Section 70-7-101, which provides in pertinent
part:

       (1)(C) … the landowner's principal place of residence and any improvements
       erected for recreational purposes that immediately surround such residence,
       including, but not limited to, swimming pools, tennis or badminton courts,
       barbecue or horse shoe pits, jacuzzis, hot tubs or saunas.

Tenn. Code Ann. § 70-7-101(1)(C).

        The McCaigs‘ complaint states that Mr. Whitmore‘s ―residence is located on
approximately seven acres of undeveloped land. . . .‖ Appellants urge this Court to interpret
the statute to include the entire seven acres of land as Mr. Whitmore‘s ―principal place of
residence.‖ The phrase ―principal place of residence‖ is not defined in the statute, nor has it
been defined by Tennessee Courts in the context of the recreational use statute. However, in
interpreting the meaning of a word or phrase in a statute, the courts may use dictionary
definitions. McGarity v. Jerrolds, 429 S.W.3d 562, 578 (Tenn. Ct. App. 2013) (citing State
v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010)); see also 82 C.J.S. Statutes § 415 (―If the
statute does not sufficiently define a word used therein, the court may consider all known
definitions of the word, including dictionary definitions, in order to determine the plain and
ordinary meaning of the word.‖) (footnotes omitted). Black's Law Dictionary defines
                                             -7-
―residence‖ as the ―place where one actually lives; a house or other fixed abode; a dwelling.‖
Black's Law Dictionary 1423 (9th ed. 2009).

     When questioned during his deposition about where the accident took place, Mr.
McCaig testified as follows:

       Q:     Okay. Do you know what caused this accident?
       A.     No, sir.
       Q.     When you were talking about going over the driveway, we‘re not talking about
              the parking area, are we?
       A.     No, sir.
       Q.     We‘re talking about further out from the house, right?
       A.     Correct. Yes, sir.
       Q.     So this wouldn‘t be the area that you considered the home; it was more out in
              the yard or the acreage area?
       A.     Correct. Yes, sir.

        The McCaigs contend that the issue of whether the driveway is included in the
meaning of ―principal place of residence‖ is a question of fact that precludes summary
judgment. Their position, however, is contrary to Tennessee case law. Statutory
interpretation is a question of law, which we review de novo, with no presumption of
correctness given to the courts below. Sullivan ex rel. Hightower v. Edwards Oil Co., 141
S.W.3d 544, 547 (Tenn. 2004) (citing Wallace v. State, 121 S.W.3d 652, 656 (Tenn. 2003)).
When the statutory language is clear and unambiguous, we must apply its plain meaning in its
normal and accepted use, without a forced interpretation that would limit or expand the
statute's application. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

        In summary, the McCaigs argue that Mr. Whitmore‘s driveway falls within the
category of property excluded from immunity under Tennessee Code Annotated section 70-7-
101(1)(C). In this case, the provisions of the statute are clear and unambiguous.
Improvements erected for recreational purposes surrounding the residence are excluded from
coverage under the statute. Tenn. Code Ann. §70-7-101(1)(C). Applying the plain meaning
of the terms, we do not conclude that a driveway is an ―improvement erected for recreational
purposes.‖ Although the list of improvements contained in the statute is not exclusive, a
driveway on a seven acre tract of land is not in any way analogous to a swimming pool, a
tennis or badminton court, barbecue or horse shoe pit, jacuzzi, hot tub or sauna. Accordingly,
we conclude that the facts here do not constitute an exception as argued by Appellants.

                                   Gross Negligence Exception

       The immunity described in section 70-7-102 does not limit the liability that otherwise
                                          -8-
exists for ―[g]ross negligence, willful or wanton conduct that results in a failure to guard or
warn against a dangerous condition, use, structure or activity.‖ Tenn. Code Ann. § 70-7-104.
The McCaigs argue that the gross negligence exception set out in section 70-7-104 is
applicable in this case, and specifically, that Mr. Whitmore‘s failure to warn Mr. McCaig
about the ―dangerous conditions existing on his property‖ constitutes gross negligence.1

       The trial court determined that the allegations against Mr. Whitmore do not constitute
gross negligence even if taken as ―absolutely true.‖ Ordinarily, a determination of ―gross
negligence‖ is a question of fact that should be presented to a jury. However, a question of
fact does not have to be reserved for trial if ―the evidence contained in the record could only
bring reasonable minds to reach one possible conclusion.‖ Rewcastle v. State, No. E2002-
00506-COA-R3-CV, 2002 WL 31926848, at *5 (Tenn. Ct. App. Dec. 31, 2002) (citing
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000)); see also Davis v.
Campbell, 48 S.W.3d 741, 747 (Tenn. Ct. App. 2001).

        In order to prevail on a claim of gross negligence, a plaintiff must prove that the act
was ―done with utter unconcern for the safety of others, or one done with such a reckless
disregard for the rights of others that a conscious indifference to consequences is implied in
law.‖ Leatherwood v. Wadley, 121 S.W.3d 682, 693-94 (Tenn. Ct. App. 2003)(citations
omitted). Gross negligence is ―a conscious neglect of duty or a callous indifference to
consequences.‖ Conroy v. City of Dickson, 49 S .W.3d 868, 871 (Tenn. Ct. App. 2001)
(citations omitted). see also Thrasher v. Riverbend Stables, LLC, No. M2008-02698-COA-
RM-CV, 2009 WL 275767, at *4 (Tenn. Ct. App. Feb. 5, 2009).

       Gross negligence in relation to TRUS claims has only been found in the most
egregious cases. In Sumner v. United States, 794 F. 1358 (M.D. Tenn. 1992), the plaintiff
was injured by unexploded ordnance on a firing range on the military installation at Fort
Campbell. Id. at 1361. The District Court explained that the Army had created the hazard
and knew that it had to keep trespassers off the range. Id. at 1362. In Sumner, the District
Court held that a failure to maintain a clear legible sign warning of such a known danger
under the facts of that case constituted gross negligence. Id. at 1367.

        During his deposition, Mr. McCaig testified as follows:



1
  During the ruling, which is incorporated into its February 25, 2015 order, the trial court observes that the
Appellants do not plead gross negligence in their complaint. However, in the Parent case, the Tennessee
Supreme Court concluded that a party is not required to specifically plead the exceptions delineated in
Tennessee Code Annotated Section 70-7-104. ―Section 104 merely operates to: (1) negate the recreational use
defense, and (2) allow a claimant to pursue a cause of action for which a recreational use defense has been
raised.‖ Parent, 991 S.W. 2d at 242-43. Therefore, the failure to plead the exceptions to the TRUS does not
                                                    -9-
                 Q.       So after you get on the four-wheeler, what happened?
                 A.       After I got on, Kelly was also on the other one. We were just
                          going around the house on the four-wheeler. She was a little bit
                          ahead of me, so I went across the driveway.
                          When I went over the first bump – when I first went over the
                          driveway, I just was kind of losing control of it. So I
                          accidentally hit the gas, and it sped up a little bit.

                          So I went over the driveway, and then I made like a turn. And
                          when I made that turn, I must have hit something to make it go
                          up. Honestly, to my knowledge sir, I don‘t remember what I hit.
                           I just remember going up like this. And the next thing I
                          remember, sir, I was on my back with a four-wheeler on top of
                          me.
                                                         ***
                 Q.       So is it fair to say that the route that you took was the same route
                          that your wife had taken directly in front of you?
                 A.       Yes, sir.
                 Q.       Okay. Do you know what caused this accident?
                 A.       No, sir.

       As previously stated, gross negligence may be decided as a matter of law when the
material facts are not in dispute and when these facts, and the conclusions reasonably drawn
from them, would permit a reasonable person to reach only one conclusion. Leatherwood,
121 S.W.3d at 693 (affirming summary judgment dismissing gross negligence claim); and
Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn.Ct.App.1990) (affirming summary judgment
dismissing gross negligence claim). We have reviewed the entire record in this case and find
no facts from which a reasonable fact finder could conclude that Mr. Whitmore is guilty of
gross negligence.
                                 Willful Wanton Exception

         Like gross negligence, ―willful or wanton conduct that results in a failure to guard or
warn against a dangerous condition, use, structure or activity‖ is also excluded from
immunity under Tennessee Code Annotated Section 70-7-102. Tenn. Code Ann. § 70-7-104.
 The McCaigs take issue with the fact that in reviewing the exceptions to the recreational use
statute, the trial court focused exclusively on gross negligence. In its ruling, the trial court
stated, ―It‘s not argued here that the willful or wanton conduct exception is relevant. Rather,
it is argued here that the [Appellee‘s] conduct constitutes gross negligence.‖ According to

prohibit their application to the case at bar.

                                                 - 10 -
the trial court, the McCaigs did not argue that Mr. Whitmore is guilty of willful or wanton
conduct. Further, the McCaigs‘ complaint does not allege willful or wanton conduct. It is
well settled that issues not raised at the trial level are considered waived on appeal. Tenn. R.
App. P. 36(a) (―Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.‖). See Waters v. Farr, 291 S.W.3d 873, 918
(Tenn. 2009); PNC Multifamily Capital Institutional Fund XXVI Ltd. P'ship v. Mabry, 402
S.W.3d 654, 660 (Tenn. Ct. App. 2012). Additionally, the record does not contain a
transcript of the hearing. Although the record contains an excerpt of the hearing on the
summary judgment motion, the portion of the transcript provided contains only the trial
court‘s ruling. The burden is upon the appellant to show that the evidence preponderates
against the judgment of the trial court. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct.
App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d 259, 266 (Tenn. Ct. App. 1969)).
 ―In the absence of a transcript of the evidence, there is a conclusive presumption that there
was sufficient evidence before the trial court to support its judgment, and this Court must
therefore affirm the judgment.‖ Coakley, 840 S.W.2d at 370 (citing McKinney v. Educator
and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. App. 1977)). Because we can
make no meaningful review absent a transcript, we assume that the statement of the trial
court is correct. Consequently, we affirm the ruling of the trial court that the ―exceptions
provided in the Tennessee Recreational Use Statute are inapplicable to this case.‖

    C.      Whether the trial court erred as a matter of law in granting Appellee’s
                            motion for summary judgment.

        The McCaigs also argue that the trial court erred in granting Mr. Whitmore‘s motion
for summary judgment. The two-prong test outlined by our supreme court in Parent v. State,
991 S.W.2d 240, 243 (Tenn. 1999), is instructive here. In this case, the activity of off-road
vehicle riding is specifically named in Tennessee Code Annotated Section 70-7-102. Thus,
the first prong of the test, whether the activity is a recreational activity as defined by statute,
is answered in the affirmative. The next inquiry is whether any of the statutory exceptions or
limitations to the immunity defense are applicable. We have determined that there are no
applicable exceptions presented by the facts in this case. Accordingly, we conclude that Mr.
Whitmore owed no duty to Mr. McCaig pursuant to Tennessee Code Annotated Section 70-7-
101 et seq. To survive summary judgment, the Tennessee Supreme Court requires the
Appellants to ―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.‖ Rye, 2015 WL 6457768 at
*22. When viewing the facts in the light most favorable to the McCaigs, we conclude that
summary judgment is appropriate in this case. Accordingly, we affirm the decision of the
trial court.


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                                 V.     Conclusion

       For the foregoing reasons, we affirm the order of the trial court granting summary
judgment in favor of the Appellee. This case is remanded to the trial court for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the appeal are
assessed against the Appellants, Homer and Kelly McCaig and their surety, for all of which
execution may issue if necessary.


                                                    _________________________________
                                                    KENNY ARMSTRONG, JUDGE




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