                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                           February 14, 2003 Session

            MYRON GENTRY, ET AL., v. HOSPITAL HOUSEKEEPING
                     SYSTEMS OF HOUSTON, INC.

                          Appeal from the Circuit Court for Davidson County
                              No. 00C-2166     Barbara Haynes, Judge



                          No. M2002-01513-COA-R3-CV - Filed April 24, 2003


This appeal arose after the trial court granted summary judgment for Hospital Housekeeping Systems
of Houston, Inc. on a suit brought by an employee of Centennial Medical Center who slipped and
fell after stepping on wet carpet. Because a material factual dispute exists, we reverse the trial
court’s decision and remand.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN , J. and
L. CRAIG JOHNSON, SP . J., joined.

Donald Capparella, Brentwood, Tennessee; Daniel C. Todd, Nashville, Tennessee, for the appellants,
Myron and Linda Gentry.

G. Brian Jackson, Bryant C. Witt, Nashville, Tennessee, for the appellee, Hospital Housekeeping
Systems of Houston, Inc.

                                           MEMORANDUM OPINION1

       This is a premises liability case arising from a slip and fall at Centennial Hospital. On July
29, 1999, the Appellant, Mr. Myron Gentry, was working third shift as a charge nurse in the
Centennial Hospital Intensive Care Unit.

       1
           Tenn. R. Ct. App . 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse o r modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. When a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPIN ION,” shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
         At approximately 1 a.m., Mr. Gentry was called to respond to a patient that was in “code”
and proceeded to head toward that patient’s room accompanied by Marlena Elrod, the nursing
supervisor, and an unnamed physician employed by Centennial. As they walked to the elevator, they
came from an area that had linoleum floors. The area directly in front of the elevators, however, had
carpeting. Mr. Gentry walked across the carpet and stepped from the carpet to the elevator. At that
point, he slipped and fell. He grabbed onto the handrail in the elevator to try to stop his fall, but
twisted his back in the process. Mr. Gentry tended to his patient, then proceeded to the emergency
room to get treatment for his back pain. Mr. Gentry claimed that the carpet was wet, causing him
to slip and fall when he stepped from the carpet outside the elevator onto the uncarpeted floor inside
the elevator. There were no warning signs in the area warning that the carpet was wet. Later on that
same night, Mr. Gentry and Ms. Elrod almost slipped again when walking from the carpet in front
of the elevator to the linoleum area.

        Mr. and Mrs. Gentry filed suit against Hospital Housekeeping Systems of Houston, Inc.
(“HHS”)2 on July 31, 2000, for injuries sustained in the slip and fall.3 HHS filed a motion for
summary judgment on December 21, 2001, claiming that there were no genuine issues of material
fact and that it was entitled to judgment as a matter of law. After a hearing, the trial court granted
HHS’s motion for summary judgment. The Gentrys appeal.

        While summary judgments are proper in virtually any civil case that can be resolved on the
basis of legal issues alone, Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847
S.W.2d 208, 210 (Tenn. 1993); Church v. Perales, 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000), they
are not appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04.
Thus, a summary judgment should be granted only when the undisputed facts, and the inferences
reasonably drawn from the undisputed facts, support one conclusion - that the party seeking the
summary judgment is entitled to a judgment as a matter of law. Webber v. State Farm Mut. Auto.
Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001); Brown v. Birman Managed Care, Inc., 42 S.W.3d 62,
66 (Tenn. 2001); Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 2001).

         Summary judgments enjoy no presumption of correctness on appeal. Scott v. Ashland
Healthcare Ctr., Inc., 49 S.W.3d 281, 284 (Tenn. 2001); Penley v. Honda Motor Co., 31 S.W.3d
181, 183 (Tenn. 2000). Accordingly, appellate courts must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). We must consider the evidence
in the light most favorable to the non-moving party, and we must resolve all inferences in the non-
moving party’s favor. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Memphis
Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001). When reviewing the evidence, we

         2
         HHS is the company employed by Centennial Hospital for housekeeping purposes, including carpet
shampoo ing.

         3
           HCA Health Services o f Ten nessee , Inc. d/b /a Centennial Medical Center intervened as a plaintiff in order to
protect its interests as a result of Mr. Gentry’s utilization of worker’s compensation benefits after his injuries. It is not
a party to this appeal.

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must determine first whether factual disputes exist. If a factual dispute exists, we must then
determine whether the fact is material to the claim or defense upon which the summary judgment
is predicated and whether the disputed fact creates a genuine issue for trial. Byrd, 847 S.W.2d at
214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

        In order for an owner or operator of premises to be held liable for negligence in allowing a
dangerous or defective condition to exist on its premises, it must be shown that the condition: (1)
was caused or created by the owner, operator or his agent; or (2) if the condition was created by
someone other than the owner, operator or his agent, there must be actual or constructive notice on
the part of the owner or operator that the condition existed prior to the accident. Ogle v. Winn-Dixie
Greenville, Inc., 919 S.W.2d 45, 47 (Tenn. Ct. App. 1995). The duty of an owner or occupier of the
premises is either to remove or warn against any latent, dangerous condition of which they are aware
or should be aware through the exercise of reasonable diligence. Eaton v. McClain, 891 S.W.2d 587,
594 (Tenn. 1994).

        The parties do not dispute that the carpet was wet or that the wet carpet created a dangerous
condition which required warning. The issue in dispute is the cause of the carpet being wet and,
consequently, whether the condition was caused by an agent of the owner, HHS. Mr. Gentry claims
that the carpet was wet due to the fact it had been recently shampooed by HHS employees. It is
undisputed that if the carpet was shampooed, it was an HHS employee who did the shampooing.
Thus, the question is whether, taking the evidence in the light most favorable to Mr. Gentry, and
applying all inferences in his favor, he has brought forth sufficient proof that the carpet was wet
because it was shampooed to create an issue of fact.

        Mr. Gentry presented no direct proof from anyone who saw the carpet being shampooed that
night. However, both Mr. Gentry and Ms. Elrod noted the uniform color of the carpet, the fact that
it was damp throughout, the raised nap, and the existence of a filmy substance on Mr. Gentry’s shoes
after his fall, all consistent with shampooing. HHS presented no direct proof, through records or
testimony, that the carpet was not shampooed that night. HHS presented the testimony of Brenda
Jones, the shift supervisor, that HHS never shampoos the carpet during the third shift, in the middle
of the night. The affidavits of Ms. Elrod and Mr. Gentry, however, directly contradict the testimony
of Ms. Jones. They both assert that they have witnessed HHS employees shampooing carpet on the
third shift.

      We find that the evidence creates a material issue of fact as to whether the carpet was
shampooed on the night of the accident. Consequently, we find that summary judgment was




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inappropriate under the circumstances. We therefore reverse and remand the decision of the trial
court for further proceedings. Costs on appeal are taxed to the Appellee, Hospital Housekeeping
Systems of Houston, Inc.



                                                    ___________________________________
                                                    PATRICIA J. COTTRELL, JUDGE




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