                                                                                         11/05/2018

               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              September 11, 2018 Session

    ROBBIE HUNTER v. KROGER LIMITED PARTNERSHIP I ET AL.

                 Appeal from the Circuit Court for Shelby County
                 No. CT-001509-16        Rhynette N. Hurd, Judge
                      ___________________________________

                           No. W2017-01789-COA-R3-CV
                       ___________________________________


Plaintiff appeals the trial court’s order granting summary judgment to the defendant on a
premises liability claim. Because the plaintiff offered no evidence to support an essential
element of her premises liability claim at the summary judgment stage, we affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II and BRANDON O. GIBSON, JJ., joined.

Walter Bailey, Jr. and Taurus M. Bailey, Memphis, Tennessee, for the appellant, Robbie
Hunter.

Christopher M. Myatt, Memphis, Tennessee, for the appellees, Kroger Limited
Partnership I, and Kroger Company #K025 d/b/a Kroger East/Delta.

                                       OPINION

                                      Background

       This is a premises liability case. Plaintiff/Appellant Robbie Hunter (“Appellant”)
went to a grocery store owned by Defendant/Appellee Kroger Limited Partnership I
(“Kroger”) in Memphis, Tennessee on April 12, 2015, and began browsing one of the
frozen food aisles. Appellant proceeded to bend over into one of the freezers in search of
an item. When another customer proceeded down the aisle, Appellant straightened up and
backed away from the freezer in order to let the other customer pass. In taking three or
four steps backwards, Appellant tripped on a wooden pallet that was left on the floor in
the center of the aisle. Appellant fell and landed on the pallet, allegedly sustaining
injuries in the process. The pallet was wooden and “standard-sized.” It is undisputed that
the pallet was left on the floor by a Kroger employee who had used the pallet for stocking
shelves and who was farther down the aisle stocking shelves at the time of Appellant’s
fall. It is also undisputed that nothing was obscuring Appellant’s view of the pallet.

       Appellant filed a complaint for damages against Kroger on April 11, 2016, in the
Circuit Court for Shelby County (“trial court”). In the complaint, Appellant alleged that
she sustained injuries as a result of her fall, resulting in both medical expenses as well as
ongoing pain and suffering. According to Appellant, Kroger owed her an affirmative duty
of care to protect her from the dangerous condition created by the pallet and further
alleged that “there were no signs, cones or warnings of any kind regarding the dangerous
condition.” Appellant sought to recover $500,000.00 in compensatory damages, as well
as $1,000,000.00 in punitive damages.

       In response, Kroger admitted that it owed Appellant a general duty of care but
denied the contention that the wooden pallet on the floor of the aisle created a risk of
“unreasonable harm or peril.” Further, Kroger acknowledged that its employees knew of
the pallet’s presence on the floor but averred that the pallet was not a dangerous condition
as Appellant alleged in her complaint. Kroger also argued that Appellant’s injuries were
the result of her own acts and omissions and suggested that Appellant failed “to care for
her own safety and maintain awareness of her surroundings.” Essentially, Kroger
maintained that it owed no duty to protect Appellant from the wooden pallet because it
was not an unreasonably dangerous condition, and, in the alternative, Appellant’s
comparative fault should bar her recovery.

        After a period of discovery, Kroger filed a motion for summary judgment on May
1, 2017. In its supporting memorandum, Kroger argued that Appellant offered
insufficient evidence of the duty element of her premises liability claim. Kroger noted
that the duty of a property owner in a premises liability action is such that “the property
owner must remove or warn against latent or hidden dangerous conditions on its premises
that the property owner was aware of or should have been aware of.” Here, Kroger urged
that the wooden pallet did not amount to a dangerous condition; thus Kroger “had no duty
to remove or warn its customers of a ‘dangerous condition.’” Rather, Kroger asserted that
“a pallet possesses no qualities that make it inherently dangerous . . . [Appellant’s]
allegation that this pallet was a dangerous condition is not based on anything other than
the fact that she tripped.” Finally, Kroger asserted that no reasonable jury could find that
Appellant was less than fifty-percent at fault, as Appellant tripped over the wooden pallet
while walking backwards in the grocery aisle.

     Kroger filed a statement of undisputed material facts in support of its motion for
summary judgment. This statement of facts, in pertinent part, states:


                                             2
      4. At the time of this incident, [Appellant] was shopping in the freezer section of
      the store.

      5. [Appellant] opened one of the freezer doors while she was shopping for ice
      cream in the freezer section of the store.

      6. After she opened the door, [Appellant] was standing in between the open
      freezer door and the exposed contents of the freezer itself.

      7. While standing there, another customer was attempting to maneuver down the
      freezer aisle that [Appellant] was shopping in.

      8. Attempting to let the other customer pass by her, [Appellant] closed the freezer
      door and stepped backwards.

      9. As she was stepping backwards, [Appellant] tripped on a wooden pallet that
      was in the aisle.

      10. [Appellant] had taken around four steps backwards before she made contact
      with the wooden pallet.

      11. [Appellant] feel [sic] backwards onto the wooden pallet and landed on her
      bottom.

      12. [Appellant] did not see the wooden pallet at any point before she fell.

      13. [Kroger] employees were using this wooden pallet in the freezer aisle to
      restock various items.

      14. There was nothing blocking [Appellant’s] view of the wooden pallet.

(Record citations omitted).

       Appellant responded in opposition to Kroger’s motion but admitted all of Kroger’s
undisputed material facts, proffered no additional material facts, and submitted no
additional evidence. Appellant averred that Kroger could not be absolved of any liability
simply because the pallet was open and obvious. Appellant insisted that Kroger’s
argument “emphasizing that the pallet was not ‘latent or hidden’ inferentially promotes
the specious argument that it was open and obvious giving them ipso facto absolution of
any duty owed[,]” and that this “‘open and obvious’ argument is totally inconsistent and
against the weight of authority.”


                                            3
       The trial court eventually entered an order granting Kroger’s motion for summary
judgment on August 14, 2017. According to the trial court, the undisputed facts in this
case reflect that “the pallet did not constitute an unreasonably dangerous condition[,]”
and that “[b]y itself, [Appellant’s] injury . . . is not sufficient to establish the existence of
a dangerous condition.” Consequently, the trial court found that Kroger owed no duty of
care to Appellant and thus, as a matter of law, Appellant’s premises liability claim failed
and Kroger was entitled to summary judgment. Appellant’s claim was dismissed with
prejudice, and a timely notice of appeal was filed September 8, 2017.

                                       Issues presented

       The Appellant raises one issue, which is taken from her brief: Whether the trial
court erred in determining that there was no genuine factual dispute as to the open and
obvious nature of the pallet over which Appellant tripped, and the extent to which the
pallet amounted to a dangerous condition for which Kroger owed Appellant a duty of
care.

                                     Standard of Review

        This case was decided on a motion for summary judgment. Summary judgment is
appropriate where: (1) there is no genuine issue with regard to the material facts relevant
to the claim or defense contained in the motion; and (2) the moving party is entitled to
judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P. 56.04. “[W]hen the
moving party does not bear the burden of proof at trial, the moving party 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 v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn.
2015).

       On appeal, this Court reviews a trial court’s grant of summary judgment de
novo with no presumption of correctness. Rye, 477 S.W.3d at 250 (citing Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997)). In reviewing the trial court’s decision, we must view
all of the evidence in the light most favorable to the nonmoving party and resolve all
factual inferences in the nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635,
639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn.
1999). If the undisputed facts support only one conclusion, then the court’s summary
judgment will be upheld because the moving party was entitled to judgment as a matter
of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder,
913 S.W.2d 150, 153 (Tenn. 1995).




                                               4
      When a moving party has filed a properly supported motion for summary
judgment, the nonmoving party must respond by pointing to evidence that shows
summary judgment is inappropriate. Rye, 477 S.W.3d at 264–65. As the Tennessee
Supreme Court explained:

       When such a motion is made, any party opposing summary judgment must
       file a response to each fact set forth by the movant in the manner provided
       in Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
       [and] ... supported as provided in [Tennessee Rule 56],” to 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.”
       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. If a summary judgment motion is filed before adequate
       time for discovery has been provided, the nonmoving party may seek a
       continuance to engage in additional discovery as provided in Tennessee
       Rule 56.07. However, after adequate time for discovery has been provided,
       summary judgment should be granted if 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. Tenn. R. Civ. P. 56.04, 56.06. The
       focus is on the evidence the nonmoving party comes forward with at the
       summary judgment stage, not on hypothetical evidence that theoretically
       could be adduced, despite the passage of discovery deadlines, at a future
       trial.

Id. (citation omitted).

                                        Discussion

       The claims in this case involve premises liability, a form of negligence. “Business
proprietors are not insurers of their patrons’ safety.” Parker v. Holiday Hosp.
Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014) (quoting Blair v. W. Town Mall,
130 S.W.3d 761, 764 (Tenn. 2004)). Property owners are, however, required to exercise
due care under all the circumstances. Blair, 130 S.W.3d at 764. “This general duty of due
care imposes upon a property owner the responsibility of either removing, or warning
against, any dangerous condition on the premises of which the property owner is actually
aware or should be aware through the exercise of reasonable diligence.” Parker, 446
S.W.3d at 350 (citing Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994)). A property

                                             5
owner’s duty, 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.” Rice v.
Sabir, 979 S.W.2d 305, 308–09 (Tenn. 1998) (citations and internal quotation marks
omitted).

       As such, “[t]he duty applicable to premises owners only requires them to remove
or warn against conditions that are, in fact, dangerous.” Newcomb v. State, No. M2014-
00804-COA-R3-CV, 2015 WL 3956038, at *3 (Tenn. Ct. App. June 26,
2015) (citing Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 350 (Tenn.
2014)). “A premises owner is not under a duty to warn of every aspect of a premises that
may be unfamiliar.” Steele v. Primehealth Med. Ctr., P.C., No. W2015-00056-COA-R3-
CV, 2015 WL 9311846, at *10 (Tenn. Ct. App. Dec. 22, 2015) (citing Norfleet v. Pulte
Homes Tenn. Ltd. P’ship, No. M2011-01362-COA-R3-CV, 2011 WL 5446068, at *5
(Tenn. Ct. App. Nov. 9, 2011)). “‘To hold otherwise would necessarily cast the premises
owner in the role of an absolute insurer of the social guest’s safety, which is not
contemplated by our negligence law.’” Steele, 2015 WL 9311846, at
*10 (quoting Norfleet, 2011 WL 5446068, at *5). Therefore, in order to hold a premises
owner liable for an injury, there must be some evidence that a dangerous condition
actually existed on the premises. Nee v. Big Creek Partners, 106 S.W.3d 650, 653 (Tenn.
Ct. App. 2002).

        Here, Kroger contends, and the trial court concluded, that Appellant failed to put
forth any evidence at the summary judgment stage demonstrating that the pallet in
question was a dangerous condition, such that Kroger owed Appellant a duty of care. In
support, Kroger cites in its appellate brief several Tennessee cases in which premises
liability claims were disposed of due to the plaintiff’s failure to proffer evidence
establishing that the defendant owed a duty of care to the plaintiff.

        For example, Kroger notes that in Buck v. Accurate C & S Services, No. E2017-
00231-COA-R3-CV, 2017 WL 5135703 (Tenn. Ct. App. Nov. 6, 2017), this Court
upheld the trial court’s grant of summary judgment to the defendant on the basis that the
plaintiff failed to show that the defendant owed him a duty of care. Id. at *6. In that case,
the plaintiff was entering the defendant’s business when the plaintiff tripped on a rise in
the door frame of the front door. Id. at *1. The plaintiff alleged that the raised threshold
of the door frame was an unreasonably dangerous condition, and that he suffered injury
as a result of the defendant’s negligence in maintaining the condition. Id. at *2. When the
defendant moved for summary judgment, it argued that the undisputed material facts
showed that the doorway was not unreasonably dangerous. Id. While the plaintiff filed a
response to the motion for summary judgment, he provided no further evidence reflecting
that the raised doorframe amounted to a dangerous condition. Id. The trial court entered
an order granting the defendant’s motion, and this Court affirmed, noting that the

                                             6
“[p]laintiff produced no evidence whatsoever in response to the motions for summary
judgment and, therefore, failed to satisfy his burden.” Id. at *5.

        Likewise, in Nee v. Big Creek Partners, 106 S.W.3d 650 (Tenn. Ct. App. 2002),
the plaintiff tripped going down a set of stairs on a golf course and suffered a broken
ankle. Id. at 652. As such, the plaintiff alleged that Big Creek was negligent in its
“construction, maintenance, and inspection of the stairs.” Id. During a bench trial, the
plaintiff testified about his fall and introduced a picture that showed the stairs were
“rotted and in a state of disrepair.” Id. The trial court, however, was unconvinced that this
amounted to sufficient evidence to show a dangerous condition, and entered a directed
verdict for the defendant. Id. at 651. We affirmed the decision of the trial court,
concluding that the plaintiff’s evidence was insufficient to create an inference that the
stairs were defective or dangerous. Id. at 655. This Court has come to a similar
conclusion in several other cases. See, e.g., Cagle v. Gaylord Entm’t Co., No. M2002-
00230-COA-R3-CV, 2002 WL 31728866, at *1 (Tenn. Ct. App. Dec. 5, 2002) (affirming
the trial court’s grant of summary judgment in favor of defendants where plaintiff alleged
that a curb in defendant’s parking lot was a dangerous condition but presented no proof
as to how the curb presented a hazard); Goumas v. Mayse, No. 2013-01555-COA-R3-
CV, 2014 WL 1713195, at *8 (Tenn. Ct. App. Apr. 29, 2014) (holding that summary
judgment in favor of defendant was proper in premises liability action where plaintiff
proffered no evidence that the rock over which he tripped “presented any unreasonable
risk of harm.”); Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV,
2015 WL 151373, at *3 (Tenn. Ct. App. Jan. 13, 2015) (defendant store owed no duty to
plaintiff in premises liability case in which plaintiff walked backwards and tripped over a
fully visible curb in the parking lot).

        Appellant argues, however, that Kroger cannot be absolved of all liability simply
because the pallet was open and obvious.1 This characterization of Kroger’s argument,
however, conflates what Kroger has actually asserted. Indeed, it is undisputed in this case
that the pallet was not latent or hidden, and that nothing obstructed Appellant’s view of

1
  It is well-settled that the “open or obvious” nature of a condition no longer “ipso facto[] relieves a
defendant of a duty of care.” Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998). Rather, this
Court has held that a defendant’s duty can still arise where a condition is open and obvious; however,
“[w]hen an invitee is injured because of dangers that are obvious, reasonably apparent, or as well known
to the injured party as to the owner or operator of the premises, liability, if any, should be determined in
accordance with the principles of comparative fault analysis[.]” Green v. Roberts, 398 S.W.3d 172, 178
(Tenn. Ct. App. 2012) (citing Cooperwood v. Kroger Food Stores, Inc., No. 02A01-9308-CV-00182,
1994 WL 725217 (Tenn. Ct. App. Dec. 30, 1994)). Essentially, the open and obvious doctrine has been
subsumed by Tennessee’s adoption of a comparative fault system. See McIntyre v. Ballentine, 833
S.W.2d 52 (Tenn. 1992). Although the Appellant in this case has characterized Kroger’s argument as
being reliant on the outdated “open and obvious” doctrine, this is incorrect. Kroger did not argue at trial,
nor has it argued in this appeal, that Kroger cannot be held liable because the pallet was open and
obvious.

                                                     7
the pallet. As such, Kroger has never asserted that it cannot be held liable for Appellant’s
injuries simply because the pallet was open and obvious. Rather, Kroger argues that the
pallet does not amount to a dangerous condition and contends that Appellant put forth no
evidence of Kroger’s duty of care at the summary judgment stage. See Rye, 477 S.W.3d
at 265 (“[A]fter adequate time for discovery has been provided, summary judgment
should be granted if 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.”).

       In response, Appellant argues that Kroger owed her a duty of care because in the
context of a grocery store, it is reasonably foreseeable that customers will become
distracted by various merchandise displays and will not be aware of even open and
obvious conditions. According to Appellant, retailers “owe a duty of care to protect
shoppers against the risk of harm posed by open and obvious conditions where it is
reasonably foreseeable that the customers will be distracted by the store’s merchandise
and fail to notice the condition.”

        To support this contention, Appellant relies heavily on McDavid v. ALDI, No.
2:16-cv-02699-SHM-cgc, 2017 WL 2954424 (W.D. Tenn. 2017). In McDavid, the
plaintiff was browsing items in the frozen food section at an ALDI grocery store. Id. at
*1. After bending over into the freezer, the plaintiff “straightened up . . . stepped
backward, allowing the door to close.” Id. “[W]hen she did so, her foot hit part of the
center-aisle display, and she fell backward into the display[.]” Id. ALDI moved for
summary judgment on the basis that there was no dangerous condition under those
circumstances. Id. The district court, however, disagreed. In discussing ALDI’s duty of
care, the court noted:

       [R]elevant considerations that bear on whether a premises owner owes a
       duty of care to protect invitees from an open-and-obvious condition include
       whether the danger was known and appreciated by the plaintiff, whether the
       risk was obvious to a person exercising reasonable perception, intelligence,
       and judgment, and whether there was some other reason for the defendant
       to foresee the harm. Such reason to expect harm to the visitor from known
       or obvious dangers may arise, for example, where the possessor has reason
       to expect that the invitee’s attention may be distracted, so that he will not
       discover what is obvious, or will forget what he has discovered, or fail to
       protect himself against it . . . ALDI had reason to expect that its customers’
       attention might be distracted because a store competes for the customer’s
       attention by encouraging her to look at and purchase items for sale. It
       would have been foreseeable that a customer in Plaintiff’s position,
       distracted by merchandise in the freezer unit as Plaintiff was, might
       momentarily forget about the display that she had discovered. For a
       customer in Plaintiff’s position, the risk and gravity of harm posed by the

                                             8
       display was heightened by the narrowness of the space between the display
       and the glass windows.

Id. at **4–5.

       Appellant also cites Read v. Home Depot USA, Inc., No. 01A01-9803-CV-00121,
1998 WL 721084 (Tenn. Ct. App. Oct. 15, 1998), and Fox v. Food Lion Store #539, No.
E1911-00015-COA-R3-CV, 2000 WL 1424805 (Tenn. Ct. App. Sept. 21, 2000). The
Read plaintiff alleged that she was distracted by the “cloud of light” in the light fixture
aisle of Home Depot, and that the injury she sustained after tripping on a box protruding
into the aisle was foreseeable. Id. at *1. The court agreed with the plaintiff that under
those particular circumstances, the retail store indeed owed the plaintiff a duty of care:

       The merchandise in this area included over 200 ceiling light fixtures
       (chandeliers) which were hung 18 feet above the floor in what was
       described as a light cloud which extended the entire length of the aisle . . .
       The presence of the “cloud of light” for the express purpose of attracting
       the attention of customers placed a special duty of care upon the defendant
       to provide safety for the customers whose attention was diverted from their
       pathway to the ceiling.

Read, 1998 WL 721084, at *2.

        Finally, in relying on Fox, 2000 WL 1424805, Appellant asserts that Kroger bore
a “special duty of care . . . because a grocery store should reasonably expect customers to
inspect and read items while they are shopping.” The Fox plaintiff brought suit against
Food Lion after tripping over an empty wooden display base in the one of the grocery
aisles. Id. at *1. The display base “had been placed in the aisle by the defendant’s store
planner several months prior to the accident and was typically utilized as a display for 12-
pack cases of soft drinks.” Id. A jury awarded the plaintiff over $100,000.00 in damages,
and this Court affirmed, explaining that:

       Food Lion had reason to expect that the attention of a customer such as Fox
       would be distracted . . . the defendant’s customer service manager,
       acknowledged as much when she testified that merchandise is placed on
       shelves and on displays for the purpose of attracting the attention of
       customers. Furthermore, a grocery store should reasonably expect
       customers to inspect and read items while they are shopping.

Id. at *4. Thus, the Fox court determined that under those particular circumstances, the
display base at issue was a dangerous condition such that the defendant owed the plaintiff
a duty of care.

                                             9
        Here, Appellant asserts on appeal that because the case-at-bar appears factually
similar to McDavid, Read, and Fox, summary judgment in this case is likewise
inappropriate. According to Appellant, she was “distracted by looking for a specific
brand of ice cream when she needed to step back to let another customer get by.
[Appellant] had not seen the pallet because she was at all times distracted by the products
on display. The empty pallet lying in the middle of aisle created a dangerous condition
resulting in a clear duty of care to [Appellant].”

        While the cases cited by Appellant appear similar at first blush, a close review
reveals that the present case is in fact distinguishable.2 The premise of the holding in both
McDavid and Read is that the defendant store intentionally created a merchandise display
that was meant to attract the attention of customers. See McDavid, 2017 WL 2954424, at
*7 (“McDavid was distracted by merchandise when she fell.”); see also Read, 1998 WL
721084, at *2 (“The presence of the ‘cloud of light’ for the express purpose of attracting
the attention of customers placed a special duty of care upon the defendant to provide
safety for the customers whose attention was diverted from their pathway to the
ceiling.”). Under these circumstances, the court held that it was foreseeable that
customers would be unaware of their surroundings, thereby creating a duty of care on the
part of the store.

       In the case-at-bar, however, Appellant readily admits that at the time of her fall,
she was not browsing any type of sales display but was in fact walking backwards to
avoid the path of another customer. Indeed, Kroger stated in its statement of undisputed
facts that in letting “another customer pass by her, [Appellant] closed the freezer door
and stepped backwards . . . [a]s she stepped backwards, [Appellant] tripped on a wooden
pallet that was in the aisle.” In response, Appellant admitted this fact proffered by
Kroger. See Cruce v. Memmex, Inc., No. W2016-01167-COA-R3-CV, 2017 WL
497035, at *8 (Tenn. Ct. App. Jan. 17, 2017) (facts admitted by the non-moving party are
taken as true for purposes of summary judgment). As such, the events underlying
Appellant’s claim are distinct from that of the cases she relies on. Notably, the McDavid
opinion explicitly states that the facts in that case were distinguishable from cases in
which plaintiffs “simply were not paying attention,” and clarified that a duty of care does
not necessarily arise where customers are “not distracted by merchandise” at the time of a
fall. McDavid, 2017 WL 2954424, at *7.

       2
         We also note that in any event, the McDavid case is not binding precedent. See Fitzgerald v.
Hickman Cty. Gov’t, No. M2017-00565-COA-R3-CV, 2018 WL 1634111, at *19 n.8 (Tenn. Ct. App.
Apr. 4, 2018) (citing Townes v. Sunbeam Oster Co., Inc., 50 S.W.3d 446, 452 (Tenn. Ct. App. 2001)
(“When a federal court undertakes to decide a state law question . . . the state courts are not bound to
follow the federal court’s decision.”)).




                                                  10
        Moreover, the case at hand is distinguishable from McDavid and Read in that the
plaintiffs in those cases satisfied their burden in proffering sufficient evidence as to the
defendant’s duty at the summary judgment stage.3 In Read, for example, there was
evidence that the “cloud of light” contained over two-hundred light fixtures meant to
attract shoppers’ attention and that the carton over which the plaintiff tripped protruded
several feet into the same aisle. Id. Likewise, in McDavid, the plaintiff submitted
evidence concerning the dimensions of the aisle compared to the display. McDavid, 2017
WL 2954424, at *1 (“The space between the side of the aisle and the edge of the center-
aisle display was approximately 3 feet . . . the door . . . extended approximately 2 feet
into the aisle . . . the aisle was very narrow.”).

       Although Appellant in this case had ample time to conduct discovery that would
have perhaps produced similar evidence, Appellant chose to submit no evidence at the
summary judgment stage, nor did she seek additional time for discovery. See Todd v.
Shelby Cty., 407 S.W.3d 212, 218 (Tenn. Ct. App. 2012) (noting that a nonmoving party
may properly respond to a motion for summary judgment by “submitting an affidavit
explaining the necessity for further discovery pursuant to Tenn. R. Civ. P. 56.06.”)
(quoting Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)). Instead,
Appellant responded by admitting all of Kroger’s proposed undisputed material facts.
The undisputed facts submitted by Kroger contain no information concerning the
dimensions of the aisle at issue or the pallet that allegedly caused Appellant’s fall. See
McDavid, 2017 WL 2954424, at *1 (considering similar evidence in holding that
summary judgment was not appropriate); Fox, 2000 WL 1424805, at *1 (considering
such evidence to sustain the jury’s verdict). Rather, the undisputed material facts reflect
only that there was a pallet in the floor of the aisle and that Appellant fell on it. It is well-
settled in Tennessee that evidence of an injury, standing alone, does not constitute
evidence of a dangerous condition. See, e.g., Cagle, 2002 WL 31728866, at *4
(concluding that plaintiff’s fall alone did not amount to “proof that defendant’s conduct
posed any harm to the plaintiff.”); Barron v. Stephenson, No. W2004-02906-COA-R3-
CV, 2006 WL 16310, at *1 (noting that “the mere fact that an injury has been sustained”
does not mean that negligence has occurred); cf. Smid v. St. Thomas Hosp., 883 S.W.2d
632, 634 (Tenn. Ct. App. 1994) (pointing out that “there is [no] product of human nature
or invention, no matter how benevolent, that a human being cannot turn into a source of
injury to himself, if only he is careless enough.”).

        3
           The plaintiff also met her burden of proof in Fox, albeit following a jury trial, rather than at
summary judgment. Specifically, the Fox plaintiff produced evidence explaining the layout of the aisle in
which she tripped, as well as the display that caused her to fall. Fox, 2000 WL 1424805, at *1 (“The
subject display base was approximately eight feet long, three feet wide, and six inches high. It was located
between two displays of merchandise in the center of the aisle. The display base had been placed in the
aisle by the defendant’s store planner several months prior to the accident and was typically utilized as a
display for 12-pack cases of soft drinks.”).

                                                    11
        Consequently, we cannot conclude that the wooden pallet created the condition
complained of by Appellant. Given the lack of evidence or authority in support of
Appellant’s assertion that the pallet was a dangerous condition, a jury would have to
engage in “speculation, conjecture, and guesswork” in order to reach that conclusion.
Nee, 106 S.W.3d at 654. Following Kroger’s properly supported motion for summary
judgment, the burden shifted to Appellant to set forth some evidence not merely that a
fall onto the pallet was possible but that it “was reasonably foreseeable that the condition
could probably cause harm or injury and that a reasonably prudent property owner would
not maintain the premises in such a state.” Newcomb, 2015 WL 3956038, at *4
(emphasis added). However, Appellant has pointed to no evidence other than the isolated
incident of her fall on April 12, 2015, to show that a reasonably prudent person would not
have maintained the grocery aisle in the same manner or that it was reasonably
foreseeable that an injury would more than likely occur.

        While “it is conceivable that proof could be developed that would lead to the
conclusion that the [pallet] created an unsafe, dangerous, or perilous condition,” this
particular record contains no such proof. Cagle, 2002 WL 31728866, at *3. The simple
fact that one person was injured is not proof that the grocery aisle or the pallet’s presence
in the aisle was dangerous or unsafe. Id. Indeed, “[g]raceful athletes often trip on yard
lines in football or on the foul line in basketball. People do trip and fall on conditions that
are not unsafe.” Id. Because the existence of a dangerous condition is an essential
element of Appellant’s premises liability claim, her action must necessarily fail. See Nee,
106 S.W.3d at 653. As a final note, we must point out that although Kroger raised
Appellant’s comparative fault as an issue for review, our conclusion that an essential
element of Appellant’s claim is lacking pretermits the issue of comparative fault in this
matter.

                                             Conclusion

The judgment of the Circuit Court for Shelby County is affirmed, and this cause is
remanded to the trial court for further proceedings consistent with this Opinion. Costs of
this appeal are taxed to Appellant, Robbie Hunter, for which execution may issue if
necessary.

                                                   _________________________________
                                                   J. STEVEN STAFFORD, JUDGE




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