                                                                                         12/14/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               August 24, 2017 Session

          BONNIE SHAW v. METROPOLITAN GOVERNMENT
         OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

                 Appeal from the Circuit Court for Davidson County
                    No. 14C-700     Thomas W. Brothers, Judge



                            No. M2016-02455-COA-R3-CV



In this premises liability action, following the filing of a motion for summary judgment
by the defendant, the plaintiff filed a motion seeking to amend her complaint to add a
claim of negligence per se based on alleged building code violations attributed to the
defendant’s maintenance of the premises at issue. The trial court failed to rule upon the
pending motion to amend before granting summary judgment in favor of the defendant.
The plaintiff timely appealed. Due to the trial court’s lack of proper consideration of the
motion to amend, we conclude that summary judgment was improperly granted. We
therefore vacate the grant of summary judgment in favor of the defendant and remand
this matter to the trial court for consideration of the motion to amend and entry of an
order presenting a reasoned explanation for the grant or denial of the sought amendment.
Following such action regarding the motion to amend, the trial court may consider the
motion for summary judgment.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Rocky McElhaney and Hunter A. Higdon, Nashville, Tennessee, for the appellant,
Bonnie Shaw.

Jon Cooper, Andrew D. McClanahan, Christopher M. Lackey, and Jennifer Bonilla
Moreno, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville
and Davidson County, Tennessee.
                                       OPINION

                         I. Factual and Procedural Background

       The plaintiff, Bonnie Shaw, was employed as a school bus driver for the school
system operated by the defendant, Metropolitan Government of Nashville and Davidson
County, Tennessee (“Metro”), from 2002 through February 21, 2013, the date of the
incident that triggered this premises liability action. On that date, Ms. Shaw attended a
mandatory training program conducted by Metro at Antioch Middle School. Ms. Shaw
was required to park her bus in an asphalt parking lot/driver training range located at the
school in order to board a bus for travel to the training center across campus. While Ms.
Shaw was traversing the parking lot on foot to reach the shuttle bus, she tripped on a
buckled and cracked portion of the pavement, sustaining injuries during her resultant fall.
The buckling and cracking of the pavement were purportedly the result of flooding that
had occurred in Nashville in 2010.

       On February 19, 2014, Ms. Shaw filed the instant action in the Davidson County
Circuit Court (“trial court”), alleging negligence by Metro and its employees in Metro’s
maintenance of the parking lot and seeking compensatory damages for her injuries. Ms.
Shaw asserted that the parking lot existed in a state of disrepair and had been in such a
state for a sufficient length of time that Metro knew or should have known of its
dangerous condition. Ms. Shaw further asserted that Metro had breached its duty of care
owed to her by failing to repair or warn her of this dangerous condition. Metro filed an
answer, denying that the parking lot in question was in a dangerous condition or that it
had been negligently maintained. Metro asserted that the instant action was controlled by
the Governmental Tort Liability Act (“GTLA”) and also subject to principles of
comparative fault.

       Metro filed a motion for summary judgment on August 4, 2016. On September
23, 2016, Ms. Shaw sought by motion to amend her complaint to include allegations of
negligence per se. In her proposed amended complaint, Ms. Shaw asserted that Metro
had violated various applicable building codes by failing to properly maintain the lot at
issue. Metro subsequently filed a statement of material facts and additional documents in
support of its motion for summary judgment. Ms. Shaw filed a response as well as her
own statement of material facts. Ms. Shaw also attached an affidavit from an engineering
expert, who opined that Metro had violated various building codes by failing to
adequately maintain the parking lot. The record does not demonstrate that the trial court
ever considered or acted on Ms. Shaw’s motion to amend, a point that Metro concedes in
its appellate brief.



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       On October 28, 2016, the trial court conducted a hearing regarding Metro’s motion
for summary judgment. The court entered an order granting summary judgment in favor
of Metro on November 21, 2016, stating in pertinent part:

             The case of Coln v. City of Savannah is controlling in this matter.
      There the Supreme Court explained that the fact that a danger to plaintiff
      was “open or obvious” does not automatically relieve a premises owner or
      possessor of [a] duty of care. Coln v. City of Savannah, 966 S.W.2d 34
      (Tenn. 1998). A defendant only has a duty of reasonable care if the
      foreseeability and gravity of harm posed from a defendant’s conduct, even
      though “open and obvious,” is outweighed by the burden on defendant to
      engage in alternative conduct to avoid harm, and circumstances of [a]
      premises liability case are then analyzed under comparative fault principles.
      Id. In order to impose legal liability, a thing must be dangerous according
      to common experience. Rye v. City of Nashville, 156 S.W.2d 460, 461
      (Tenn. Ct. App. 1941).

             Tennessee court cases that have refused to require property owners
      to warn of or repair minor aberrations in surface conditions are still good
      law. Batts v. City of Nashville, involved a three inch deviation, and the
      Tennessee Supreme Court held that “slight holes or depressions which are
      not in the nature of traps, and from which danger could not be reasonably
      anticipated, are not defects for which an action will lie.” 123 S.W.2d 1099,
      1103 (Tenn. 1938). Similarly, City of Memphis v. McCrady, involved a
      two and a half inch deviation and the Court held that a “municipality cannot
      be held as an insurer, nor can it be charged with the duty to correct slight
      defects in sidewalks resulting from inequality in the expansion joints,
      produced by natural causes, where the inequality or unevenness does not
      make a dangerous obstruction calculated to produce injury to persons
      exercising reasonable care.” 124 S.W.2d 248, 249 [] (Tenn. 1938); see also
      Rye at 461 (Tenn. Ct. App. 1941) (holding the probability that a concrete
      sidewalk block about two inches higher than the adjacent concrete block
      will cause injuries to pedestrians using the sidewalk with reasonable care is
      too remote to impose on the city the burden and expense of preventing such
      injuries, or the duty to guard against them).

             Considering the foregoing, the Court finds that there are no genuine
      issues of material facts and this is a question of law to be decided by the
      Court. The parking lot at issue was uneven due to buckled pavement and
      contained a fifty-four foot crack that amounted to a deviation of up to one
      and a half inches. However, a property owner is not required to maintain a
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        parking lot in the same condition as a billiard table; a parking lot does not
        have to be absolutely smooth. It will have some uneven surfaces and
        potentially dangerous areas, but the key question is whether the irregular
        surface at issue was unreasonably dangerous. The Court finds it was not.

               The defect in question was open and obvious and the Plaintiff could
        have become aware of it through normal exercise of her senses as it was
        broad daylight and the lengthy crack was clearly visible. The obvious
        nature of the condition at issue is applicable to the Plaintiff as well as the
        Defendant. The foreseeable risk of harm caused by the minor aberration in
        [the] parking lot due to a slight elevation change and the obviousness of the
        defect in the form of a fifty-four inch1 crack does not outweigh the obvious
        nature of the aberration.

              Accordingly, the Metropolitan Government owed no duty to Ms.
        Shaw. The Court finds there are no genuine issues of material fact and the
        Metropolitan Government’s Motion for Summary Judgment is well taken.

Ms. Shaw timely appealed.

                                      II. Issues Presented

       Ms. Shaw presents the following issues for this Court’s review, which we have
restated slightly:

        1.      Whether the trial court erred by granting summary judgment because
                Metro (1) failed to negate an essential element of Ms. Shaw’s claim
                or (2) failed to demonstrate that Ms. Shaw’s evidence was
                insufficient to establish an essential element of Ms. Shaw’s claim.

        2.      Whether the trial court erred by failing to construe the evidence in
                the light most favorable to Ms. Shaw when making its determination
                regarding summary judgment.

        3.      Whether the trial court erred by determining that Metro owed Ms.
                Shaw no duty of care.




1
  Earlier in this order and throughout the record, the crack in the pavement is described as being fifty-four
feet in length.
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                             III. Standard of Review

       The grant or denial of a motion for summary judgment is a matter of law;
therefore, our standard of review is de novo with no presumption of correctness. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015), cert.
denied, 136 S. Ct. 2452, 195 L. Ed. 2d 265 (2016); Dick Broad. Co. of Tenn. v. Oak
Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013) (citing Kinsler v. Berkline, LLC, 320
S.W.3d 796, 799 (Tenn. 2010)). As such, this Court must “make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been satisfied.” Rye v. Women’s Care Ctr., 477 S.W.3d at 250. As our Supreme Court
has explained concerning the requirements for a movant to prevail on a motion for
summary judgment pursuant to Tennessee Rule of Civil Procedure 56:

      [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. We reiterate that 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. Rather, Tennessee Rule 56.03 requires the moving party to support
      its motion with “a separate concise statement of 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. 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.” Matsushita Elec. Indus. Co., 475 U.S. [574,] 586, 106 S. Ct. 1348
      [(1986)]. 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
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       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. at 264-65 (emphasis in original). The Supreme Court has also elucidated that “the
evidence must be viewed in a light most favorable to the claims of the non-moving party,
with all reasonable inferences drawn in favor of those claims.” Id. at 286. Pursuant to
Tennessee Rule of Civil Procedure 56.04, the trial court must “state the legal grounds
upon which the court denies or grants the motion” for summary judgment, and our
Supreme Court has instructed that the trial court must state these grounds “before it
invites or requests the prevailing party to draft a proposed order.” See Smith v. UHS of
Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014).

                   IV. Propriety of Grant of Summary Judgment

        Ms. Shaw asserts that the trial court erroneously granted summary judgment in
favor of Metro, arguing that Metro failed to (1) affirmatively negate an essential element
of Ms. Shaw’s claim or (2) demonstrate that Ms. Shaw’s evidence at the summary
judgment stage was insufficient to establish Ms. Shaw’s claim or defense. Ms. Shaw also
posits that the trial court failed to view the evidence in the light most favorable to her, as
it was required to do when considering a motion for summary judgment. In support of
her argument, Ms. Shaw places great emphasis on the affidavit of her expert, Clarence
Bennett, who opined that Metro violated various applicable building codes and
ordinances by failing to adequately maintain the parking lot at issue, thus purportedly
allowing a dangerous and defective condition to exist on its property. Although in its
order the trial court did rely upon part of the evidence contained in Mr. Bennett’s
affidavit regarding the size and depth of the cracked area, the court did not rule on Ms.
Shaw’s motion seeking to amend her complaint to assert a claim of negligence per se.
The court’s judgment does not specifically mention the alleged building code violations.

       In its appellate brief, Metro contends that any code compliance issues are not
properly before this Court because the trial court “never entered an order granting
Plaintiff’s Amended Complaint which attempted to add those claims.” Metro further
proceeds to argue, however, that no building codes were violated and that the building
codes it allegedly violated are inapplicable in this factual situation. Ergo, Metro appears
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to seek a ruling from this Court that no building code violations existed while
simultaneously asserting that the issue is not properly before the Court.

       Regarding the trial court’s failure to rule on the pending motion to amend, a
similar situation was addressed by our Supreme Court in Henderson v. Bush Bros. & Co.,
868 S.W.2d 236 (Tenn. 1993), wherein the plaintiff’s motion seeking to amend his
complaint was never ruled upon prior to the trial court’s grant of summary judgment in
favor of the defendant. On appeal, the High Court considered that Tennessee Rule of
Civil Procedure 15.01, governing the amendment of pleadings, provides that leave to
amend “shall be freely given when justice so requires.” See Henderson, 868 S.W.2d at
237. The Court also considered persuasive federal precedent construing the similar
Federal Rule of Civil Procedure 15(a), in which the Sixth Circuit Court of Appeals had
held that “it was an abuse of discretion for a district court to dismiss a suit on the basis of
the original complaint without first considering and ruling on a pending motion to
amend.” Id. at 238 (quoting Ellison v. Ford Motor Co., 847 F.2d 297, 300 (6th Cir.
1988) (in turn citing Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987)).

       The Henderson Court thus vacated the trial court’s grant of summary judgment,
reasoning that:

       the trial court must give the proponent of a motion to amend a full chance
       to be heard on the motion, must consider the motion in light of the
       amendment policy embodied in T.R.C.P. 15.01, that amendments must be
       freely allowed; and in the event the motion to amend is denied, the trial
       court must give a reasoned explanation for [its] action.

Henderson, 868 S.W.2d at 238. See also Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366,
375 (Tenn. 2007) (explaining that before summary judgment was granted, “the
amendment [to the complaint] should have been considered,” but finding the error to be
harmless due to the circumstances); Reynolds v. Tognetti, No. W2010-00320-COA-R3-
CV, 2011 WL 761525, at *6 (Tenn. Ct. App. Mar. 4, 2011) (vacating the trial court’s
grant of summary judgment and remanding to the trial court for a full hearing regarding
an unadjudicated motion to amend the complaint “in light of the policy that amendments
are to be freely given”).

        Similarly, in Lowery v. Faires, No. 03A01-9605-CV-00177, 1996 WL 718290, at
*2 (Tenn. Ct. App. Dec. 16, 1996), the plaintiff filed a motion to amend his complaint
after the defendant had filed a motion seeking a grant of summary judgment. The trial
court denied the plaintiff’s motion to amend because the motion for summary judgment
was pending. Id. at *1. On appeal, this Court vacated the trial court’s grant of summary
judgment, which had been based on governmental immunity, and remanded the matter to
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the trial court for full consideration of the plaintiff’s motion to amend. Id. at *2. In so
doing, this Court explained:

             In the instant case, the trial court denied plaintiff’s motion to amend
      on the grounds that the motion could not be entertained while a motion for
      summary judgment was pending. This decision is clearly in conflict with
      the Supreme Court’s decision in Henderson.

              Appellees argue that it was within the trial court’s discretion to deny
      the motion, and cite several factors that a court must consider in
      determining whether to grant a motion to amend. We agree that in the
      ordinary case, the standard of review is whether the trial court abused its
      discretion in denying a motion to amend. This court in Welch v.
      Thuan, 882 S.W.2d 792 (Tenn. App. 1994) noted that “[t]he rule [Rule
      15.01, T.R.A.P.] provides that permission to amend may be liberally
      granted, but the decision is in the sound discretion of the trial court, and
      will not be reversed unless abuse of discretion has been shown.”
      (Citing Wilson v. Ricciardi, 778 S.W.2d 450, 453 (Tenn. App. 1989)).
      Here, however, the trial court did not exercise its discretion nor consider
      relevant factors in determining whether to grant or deny the motion. The
      trial court’s decision was based on the mistaken belief that the court could
      not entertain a motion to amend while a motion for summary judgment was
      pending. Some of the relevant factors to consider are undue delay in filing;
      lack of notice to the opposing party; bad faith by the moving party;
      repeated failure to cure deficiencies by previous amendments; undue
      prejudice to the opposing party; and futility of the amendment.
      Welch, supra, and Merriman v. Smith, 599 S.W.2d 548 (Tenn. App. 1979).

             We make no determination concerning the merits of either the
      motion to amend or the motion for summary judgment except to vacate the
      present order. We believe that the trial judge should consider the motion to
      amend, and if, in the court’s determination the motion is not well taken, a
      reasoned explanation for the denial should be given in accordance
      with Henderson. After action on the motion to amend, the trial court may
      then consider the motion for summary judgment.

Id.

       In the instant action, the trial court similarly failed to properly exercise its
discretion. The court neither ruled upon the pending motion to amend nor undertook
analysis of the above-listed applicable factors in order to determine whether the sought
                                            8
amendment should have been granted pursuant to Tennessee Rule of Civil Procedure
15.01. See Lowery, 1996 WL 718290, at *2. Due to the trial court’s lack of sufficient
consideration of Ms. Shaw’s motion to amend, summary judgment was improperly
granted. See Henderson, 868 S.W.2d at 238. We therefore vacate the grant of summary
judgment to Metro and remand this matter to the trial court for consideration of the
motion to amend and entry of an order presenting a “reasoned explanation” for the grant
or denial of the amendment. See Henderson, 868 S.W.2d at 238; Lowery, 1996 WL
718290, at *2. Following such action regarding the motion to amend, the trial court may
consider the motion for summary judgment. See id.

                                     V. Conclusion

       For the foregoing reasons, the trial court’s grant of summary judgment in favor of
Metro is vacated. We remand this matter to the trial court for further proceedings
consistent with this opinion. Costs on appeal are taxed one-half to the appellant, Bonnie
Shaw, and one-half to the appellee, Metropolitan Government of Nashville and Davidson
County, Tennessee.



                                                _________________________________
                                                THOMAS R. FRIERSON, II, JUDGE




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