                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

              MARY J. JONES v. H. G. HILL REALTY COMPANY

                Direct Appeal from the Circuit Court for Williamson County
                          No. II-97722 Russ Heldman, Judge



                   No. M1999-00633-COA-R3-CV - Decided June 29, 2000


Plaintiff sued Defendant for damages resulting from Plaintiff’s fall on Defendant’s premises.
Summary judgment was granted on Defendant’s motion. On appeal Plaintiff challenges the
summary judgment grant as well as the trial court’s refusal to consider the affidavit of her expert
witness submitted in response to Defendant’s summary judgment motion. We affirm the action of
the trial court.

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

CAIN , J., delivered the opinion of the court, in which KOCH , and COTTRELL, JJ., joined.

George E. Copple, Jr., Nashville, Tennessee, for the appellant, Mary J. Jones.

Malcolm L. McCune, Nashville, Tennessee, for the appellee, H. G. Hill Realty Company.

                                            OPINION

        The standard of review is clear in cases concerning a grant of summary judgment. We
review the decision of the trial court de novo with no presumption of correctness on appeal. We
view the evidence in the light most favorable to the non-movant, allowing all necessary inferences
in her favor and discarding all countervailing evidence, to determine whether a genuine dispute
exists as to any material fact. See Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993). If, upon
review, a genuine issue exists or if there is doubt as to whether such issue exists, the summary
judgment is improper and should be reversed. See Evco Corp. v. Ross, 528 S.W.2d 20, 24 (Tenn.
1975). In premises liability cases like the one at bar, our supreme court has said, “A summary
judgment remains appropriate, for example, where Plaintiff has not produced sufficient evidence to
meet the “duty” component, or any other component of a negligence claim, as a matter of law.”
Coln v. City of Savannah, 966 S.W.2d 34, 44 (Tenn. 1998) (citing Byrd v. Hall, 847 S.W.2d 208
(Tenn. 1993). See also Tenn. R. Civ. P. 56.04. Motions for summary judgment should neither be
taken lightly nor ignored. As the rule requires,

       When a motion for summary judgment is made and supported as provided in this
       rule, an adverse party may not rest upon the mere allegations or denials of the
       adverse party’s pleading, but his or her response, by affidavits or as otherwise
       provided in this rule, must set forth specific facts showing that there is a genuine
       issue for trial.

Tenn. R. Civ. P. 56.06.

       The complaint in this case was filed December 19, 1997, and alleged the following:

       That on or about December 20, 1996, the Plaintiff, MARY J. JONES, was exiting the
       H.G. Hills Shopping Center in Brentwood, Tennessee. While descending the stairs
       between Kinko’s and Lee’s Pharmacy, Plaintiff became unsteady and reached for the
       handrail to steady herself. Due to the negligently designed hand rail, sized in such
       a manner that she was unable to grasp it, Plaintiff, MARY J. JONES, fell violently,
       sustaining injuries which essentially crushed the left side of her body. Such action
       occurred as a result of the aforementioned handrail being too large to accommodate
       the average-size hand.
                                               ***
       Defendant, H.G. HILL REALTY COMPANY, failed to provide handrails at the
       aforementioned shopping center designed to protect patrons of such shopping center
       when using stairs between the various stores. Their failure to provide appropriately
       designed and sized handrails constitutes negligence and a breach of their duty of due
       care to such persons.

        Defendant, H.G. Hill Realty, filed its answer in January of 1998 denying the allegations
concerning the negligently sized handrail. After some discovery, H.G. Hill Realty filed for summary
judgment. Accompanying that motion were several affidavits which showed that Mrs. Jones, while
walking down the stairs in question reached what she thought was the last step. In fact, she had
reached the third from the last step of stairs. She then stepped out into thin air. In addition, H.G.
Hill Realty presented affidavits to the effect that the handrail, which Mrs. Jones attempted to grasp
for support, was constructed with due regard for the building codes at the time of construction. The
motion was also accompanied by a statement of undisputed facts and a memorandum of law in
support of summary judgment.

         Mrs. Jones’s response to this motion for summary judgment was accompanied by an affidavit
from Plaintiff as well as an affidavit from purported expert Charles Nelson. Mrs. Jones’s affidavit
reiterated her disorientation and inability to grasp the handrail. Mr. Nelson’s affidavit stated in
pertinent part that the handrail to which both parties had referred in pleadings and discovery did not
fit the “dictionary” definition of a handrail, and thus was in violation of the applicable building code.
Mr. Nelson’s affidavit also stated that due to the curved shape of the descending stairway, a person
who wished to descend steps of uniform width would have to travel without the aid of the handrail
while a person who wished to use the handrail would face steps of increasing width. In Plaintiff’s
Response to Defendant’s Rule 56.03 Statement of Material Facts, she admits to having a “history
of misjudging” the steps on which she fell. She includes a “Statement of Additional Material Facts

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Creating a Genuine Issue For Trial.” Using primarily the statements of Mr. Nelson as issues of fact,
Mrs. Jones lists the following:

       1.      The steps become increasingly wider as the user descends using the handrail,
       and this can be confusing to the user.
       2.      The handrail is 3½ inches in diameter and is too large for the fingers of the
       average human hand to wrap around it and get a good grip. It does not meet the
       dictionary definition of handrail: “a narrow rail for grasping with the hand as
       support.”
                                              ***
       4.      The defendant H.G. Hill Realty should have anticipated the harm of non-
       uniform steps and an overly thick handrail.

        In reviewing the record in a light most favorable to Mrs. Jones, there seems to be no dispute
as to the fact that in her journey down the stairs between Kinko’s and Lee’s Pharmacy Mrs. Jones
became disoriented and started to fall; that she reached for the handrail which, though constructed
consistent with the building codes at the time the building was constructed, did not provide her with
the support she needed to prevent her fall.

        To make out a case for premises liability, a plaintiff must show that the premises owner or
operator failed in its duty to maintain the premises in a safe condition or failed to warn of a risk
about which it was aware or, through the exercise of due diligence, should have been aware. See
Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1999); see e.g. Blair v. Campbell, 924 S.W.2d 75, 76
(Tenn. 1996); Eaton v. McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994); Jones v. Zayre, Inc., 600
S.W.2d 730, 732 (Tenn. 1980). Obviously showing negligence in this context requires proof of a
dangerous condition created by or apparent to the owner/operator. See Rice, 979 S.W.2d at 308;
Chambliss v. Shoney’s, Inc., 742 S.W.2d 271, 273 (Tenn. Ct. App. 1987).

       As the supreme court stated in Rice:

       The duty imposed on the premises owner or occupier, however, does not include the
       responsibility to remove or warn against “conditions from which no unreasonable
       risk was to be anticipated, or from those which the occupier neither knew about nor
       could have discovered with reasonable care.” Prosser and Keeton on Torts, supra,
       § 61 at 426. In this regard, “the mere existence of a defect or danger is generally
       insufficient to establish liability, unless it is shown to be of such a character or of
       such duration that the jury may reasonably conclude that due care would have
       discovered it.” Id. at 426-27.

       Rice, 979 S.W.2d at 309. The record in this case is insufficient to create a jury question as




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to the existence of a dangerous condition in the premises.1

        Mrs. Jones argues that the affidavit proffered by Charles Nelson amounts to expert proof
supporting her claim. The gist of this affidavit was that despite the absence in the Standard Building
Code of specific requirements as to the size of a handrail, the rail in question was overly large and
therefore does not meet the “dictionary definition” of a handrail, i.e. “A narrow rail for grasping ...
.” It appears to this court that Appellant is attempting to stretch the standards of admissibility of
expert proof far beyond that which was contemplated by the supreme court in McDaniel v. CSX
Transp., Inc., 955 S.W.2d 257 (Tenn. 1997). The material question of fact, if there is one, is whether
the “handrail-stair combination” caused Mrs. Jones’s fall. Other than the bare unsupported
statements by Mr. Nelson, the whole of his “expert proof” regarding this question is an excerpt from
a dictionary equally capable of being read and understood by the most learned engineer or the
average lay reader. No study exists in this affidavit to suggest a causal link between the size of the
handrail and the injuries in question - - only the assumption that the Standard Building Code’s
drafters must have changed the design requirements well after the construction of the H.G. Hill
building in response to Webster’s Dictionary. There is no methodology to support any assertion that
the stairs foreseeably led to the disorientation of those who traversed them. As a result, the only
proof as to the “duty” of H. G. Hill to warn, i.e. the very nature of the handrail - stair - condition, is
pure conjecture. Such conjecture does not become expert proof simply by virtue of the technical
expertise of the proponent. This is the very reason why trial courts are accorded the gatekeeper
function described in the Tennessee Rules of Evidence and in McDaniel. The questions regarding
admissibility and competency rest within the sound discretion of the trial court. McDaniel, 955
S.W.2d at 264; see also Tenn. R. Evid. 702-703. The court specifically found that the affidavit given
by Mr. Nelson and proffered by Plaintiff, Mrs. Jones, did not rise to the level of expert proof.
Indeed, the ability to read from a dictionary does not amount to expert proof. We find no abuse of
discretion in the trial court’s exclusion of that testimony.

        Plaintiff/Appellant cannot survive a summary judgment in this case under principles
established in Eaton v. McClain, 891 S.W.2d 587 (Tenn. 1994). Appellant has not shown that
appellee “reasonably knew or should have reasonably known of the probability of an occurrence
such as the one which caused her injuries.” Eaton v. McClain at 594. No “duty” exists under the
undisputed facts of this case. The trial court correctly granted Defendant’s motion for summary
judgment.


        The action of the trial court, therefore, is affirmed in all respects, and the cause is remanded


        1
         Inasmuch as we hold for Defendant in Mrs. Jones’s second issue on appeal concerning an
alleged error on the part of the trial court in refusing to consider the affidavit of Charles Nelson,
there is no evidence to show any violation of the attendant standard of care concerning the handrail
or stairway.



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for such further proceedings as may be necessary. Costs are assigned against Appellant.




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