                                                                                         03/15/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               February 5, 2018 Session

          MATTHEW EPPS V. MARY SONJIA THOMPSON ET AL.

                 Appeal from the Circuit Court for Davidson County
                       No. 16C987     Kelvin D. Jones, Judge


                            No. M2017-01818-COA-R3-CV


A landowner hired an individual she supervised at work to paint her house outside of
work. The landowner provided the painter with material and ladders for the job. While
he was using the folding ladder and painting one of the house’s eaves, the painter fell to
the ground and injured his wrist. The painter sued the landowner for damages, asserting
the landowner was negligent for providing him with old ladders that were unsafe. The
landowner moved for summary judgment, which the trial court granted after finding the
painter was unable to prove cause in fact or proximate cause. The painter appealed, and
we affirm the trial court’s judgment.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS
and W. NEAL MCBRAYER, JJ., joined.

Peter M. Olson, Clarksville, Tennessee, for the appellant, Matthew Epps.

Barbara Jones Perutelli, Nashville, Tennessee, for the appellee, Mary Sonjia Thompson.

                                      OPINION

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        Mary Sonjia Thompson hired Matthew Epps in April 2015 to paint a house she
owned in Joelton, Tennessee. Ms. Thompson provided Mr. Epps with paint, brushes,
rollers, and two aluminum ladders. One of the ladders was an extension ladder, and the
other one was a folding ladder. When Mr. Epps was painting the highest part of the
house, he fell off the folding ladder and injured his right wrist. Mr. Epps filed a
complaint against Ms. Thompson1 in which he alleged the ladders she provided were
“old, loose, and not a safe appliance for the work required.” Mr. Epps claimed Ms.
Thompson violated her duty to provide Mr. Epps with a reasonably safe place and with
safe appliances to paint her house. Mr. Epps sought money damages in an amount not to
exceed $500,000.

        The parties engaged in discovery, and both Mr. Epps and Ms. Thompson gave
their depositions. Mr. Epps testified that Ms. Thompson was his supervisor at Metro and
that when she offered him a side job outside of work where he could earn extra money,
he was happy to take it. The job involved painting a shed and the window sills, trim, and
eaves of a brick house. Mr. Epps explained that Ms. Thompson met him the morning he
was to start the job and provided him with paint, brushes, rollers, an extension handle for
the rollers, and two ladders. Mr. Epps worked on Ms. Thompson’s house over the course
of two or three weekends. He fell as he was painting one of the eaves, which was the
highest point of the house that needed painting. He described his fall as follows:

       Q: Well, why don’t you describe to me how you fell?

       ....

       A: Well, what I had done - - this is exactly what I did. I walked around
       and looked for a position to put the ladder, and so I sat the - - the long
       ladder, the extension ladder, it wasn’t working. It wasn’t working. I tried
       to put it up on the house, and I tested it with my foot and shaked [sic] it, but
       it wasn’t working right.

       Q: All right. When you say, it wasn’t working, explain.

       A: It’s just the brackets on the bottom of the foot wasn’t working right.
       And then one latch on the . . . right side, it wasn’t catching. It just didn’t
       feel right. It wasn’t catching right. So I was, like, no, I can’t use this
       ladder. So I tried the other ladder. The brackets on the bottom of the foot,
       you know, was sticking. And so, I mean, I used it anyway. Her words - -
       her exact words to me - - I asked her about the ladders, and she said, well,
       they’re old ladders, but they will work. So I’m not going to argue, because,
       like I said, that’s my boss. I had no problems with her. So she wanted the
       job done, so my job was to get the job done. I wasn’t there for me to
       question her about nothing.


1
 Mr. Epps also named Michael Thompson, Ms. Thompson’s former husband, as a defendant. Mr. Epps
agreed to dismiss Mr. Thompson from the case at the trial court level, and Mr. Thompson is not
participating in this appeal.
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       Mr. Epps explained that he used the folding ladder to reach the eave of the house
where he fell. Because an air conditioning unit was situated immediately below the
highest point, he was unable to place the extension ladder in such a way that he could
reach the top of the eave. The ground next to the house where Mr. Epps fell sloped away
from the house, and he said he had trouble situating the folding ladder in a way that it
seemed stable enough to use. Mr. Epps testified:

       A: I went up and down [the ladder] a couple of times, shaking the ladder,
       because I couldn’t get it to sit right, you know, and then I kept looking at
       the legs and trying to get the legs right. Couldn’t get it to sit right. Once I
       got it stable to where I thought it was in a position to where I could finish
       this job up, then I went back up and proceeded to finish my work.

       Q: And then tell me what happened when you fell.

       A: I just started painting. And when I got to - - right at the end - - close to
       the end of . . . the peak [of the house eave] I just looked up at it and thought
       it looked okay. And then, like I said, I don’t know if it was the devil or an
       act of God. The ladder just kicked out. It just kicked out.

       Q: When you say, kicked out, does that mean fell over?

       A: It just fell over. The ladder just kicked out.

       Q: Did anything on the ladder break?

       A: I don’t know. When I hit the ground, I wasn’t thinking about no ladder.
       I don’t know if it broke or what. All I know is, when I hit the ground, I
       jumped up, and this part of my hand was facing me, . . . , so I wasn’t
       thinking about no ladder.

        Mr. Epps stated that he did not see the ladder after he fell, so he did not know if a
step broke, a hinge came loose, or if the ladder failed in some other respect. He testified
that it was “defective to the point where the legs [weren’t] working right.” Mr. Epps
testified that his conversation with Ms. Thompson about the condition of the ladders
occurred on his first day at her house, before he used either of the ladders. He was not
sure whether he said anything to Ms. Thompson about the ladders’ not being “up to par”
after he started using them.

       Ms. Thompson testified during her deposition that she did not stay at the house in
Joelton to observe Mr. Epps while he painted her house. She stated that she met him
there on the first morning of the job and then did not return until she heard that he had


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fallen. Ms. Thompson said that when she spoke with Mr. Epps about his fall, he told her
something different than what he said during his deposition.

           I asked him how he got hurt, and he told me he was painting, and the little
           girl next door had hollered at him, and was asking him if my granddaughter
           was home to where she could play,[2] and he turned around to talk to her,
           and he said when he turned back around to start painting, that he just - - he
           didn’t know what had happened. He just fell off the ladder.

In response to a question regarding instructions she gave Mr. Epps about painting the
house, Ms. Thompson testified as follows:

           A: I didn’t really give him any instructions. We talked about the house. I
           asked him again if he was sure he could do the job. He said yes. The only
           instruction I really gave him was to start on the front of the house, because
           that’s where you could see the house first from the street.

           Q: Curb appeal?

           A: Yes. And that’s basically the only instruction was to paint the house
           and to paint the shed.

           Q: Did you supervise any of his work?

           A: No, I did not.

           Q: Was anybody there to assist him?

           A: No.

       Ms. Thompson testified that she purchased the folding ladder “somewhere around
2004, maybe.” She denied having any conversation with Mr. Epps about the safety of the
ladders before he began painting. She believed that Mr. Epps fell because he was
distracted by the child next door, not because there was anything wrong with the folding
ladder he was using.

       Ms. Thompson filed a motion seeking summary judgment. She argued that Mr.
Epps had insufficient evidence to establish either the legal cause of his injury or to show
that she breached any duty she owed him. The trial court agreed and granted Ms.
Thompson’s motion, dismissing Mr. Epps’ complaint with prejudice. It wrote:


2
    Either Ms. Thompson’s son or daughter was living in the house in Joelton that Mr. Epps was painting.
                                                    -4-
              The undisputed facts in this cause show that the Plaintiff was
       employed to paint the Defendants’ house. Mary Sonjia Thompson, as the
       Plaintiff’s employer did not breach any duty to the Plaintiff either under the
       theory that the employment was as an independent contractor or under the
       theory that the employment was a master servant relationship.

              The Plaintiff alleged that the ladders provided to him by Ms.
       Thompson to paint the house were defective. However, the Court finds it
       to be undisputed, as deemed by the Plaintiff, that if the ladders were
       defective, then Ms. Thompson had no knowledge of any defects.

               The Court holds that the Plaintiff was not aware of why the ladder
       fell, and had no facts to show causation. Therefore the Court finds that the
       Plaintiff’s evidence is insufficient to establish the essential elements of his
       claim.

       Mr. Epps filed a motion for additional findings of fact and to alter or amend the
summary judgment, which the trial court denied. Mr. Epps then filed a notice of appeal.
On appeal, Mr. Epps argues that the trial court erred in granting Ms. Thompson’s motion
for summary judgment.

                                       II. ANALYSIS

        Summary judgment is appropriate “if 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; see also Rye v. Women’s Care Ctr.
of Memphis, MPLLC, 477 S.W.3d 235, 261-62 (Tenn. 2015) (quoting TENN. R. CIV. P.
56.04). Appellate courts review a trial court’s decision on a motion for 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)). A court ruling on a motion for
summary judgment is required to construe the evidence “in the light most favorable to the
nonmoving party” and to “resolve all inferences in the nonmoving party’s favor.” Rains
v. Bend of the River, 124 S.W.3d 580, 587 (Tenn. Ct. App. 2003) (citing Godfrey v. Ruiz,
90 S.W.3d 692, 695 (Tenn. 2002); Johnson v. LeBonheur Children’s Med. Ctr., 74
S.W.3d 338, 342 (Tenn. 2002)).

         If the party moving for summary judgment does not bear the burden of proof at
trial, the movant will be entitled to succeed on the motion if he or she:

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


                                            -5-
       (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; see Eden W. ex rel. Evans v. Tarr, 517 S.W.3d 691, 695
(Tenn. Ct. App. 2015) (stating that defendant moving for summary judgment must either
negate an essential element of the plaintiff’s claim or prove an affirmative defense that
defeats the plaintiff’s claim) (citing Doyle v. Town of Oakland, No. W2013-02078-COA-
R3-CV, 2014 WL 3734971, at *2 (Tenn. Ct. App. July 28, 2014)). Once the moving
party satisfies these requirements, the nonmoving party “must demonstrate how these
requirements have not been satisfied.” Rains, 124 S.W.3d at 587 (citing Bain, 936
S.W.2d at 622). “[T]he 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.’” Rye, 477 S.W.3d at 265 (quoting TENN.
R. CIV. P. 56.06).

       The basis of Mr. Epps’ claim is that Ms. Thompson was negligent by providing
him with old ladders that were not suitable for his use in painting her house. Our
Supreme Court has addressed the elements a plaintiff must prove to establish a prima
facie case of negligence:

       In order to establish a prima facie claim of negligence, basically defined as
       the failure to exercise reasonable care, a plaintiff must establish the
       following essential elements: “(1) a duty of care owed by defendant to
       plaintiff; (2) conduct below the applicable standard of care that amounts to
       a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5)
       proximate, or legal, cause.”

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v.
Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). ‘“Causation [in fact] and proximate cause
are distinct elements of negligence, and both must be proven by the plaintiff by a
preponderance of the evidence.”’ Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005)
(quoting Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)). A defendant’s
conduct constitutes the “cause in fact” of a plaintiff’s injury if the injury would not have
occurred “but for” the defendant’s conduct. Id. When determining whether proximate
cause exists, a court considers whether the injury that occurred was reasonably
foreseeable by the defendant. Id. at 719. The Hale Court explained that a three-pronged
test is used to determine whether proximate cause exists:

       “(1) the tortfeasor’s conduct must have been a “substantial factor” in
       bringing about the harm being complained of; and (2) there is no rule or
       policy that should relieve the wrongdoer from liability because of the

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       manner in which the negligence has resulted in the harm; and (3) the harm
       giving rise to the action could have reasonably been foreseen or anticipated
       by a person of ordinary intelligence and prudence.”

Id. at 719 (quoting Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn. 1994)).

       The Supreme Court in Rice v. Sabir, 979 S.W.2d 305 (Tenn. 1998), explained that
‘“[f]oreseeability is the test of negligence.”’ Rice, 979 S.W.2d at 309 (quoting Doe v.
Linder Const. Co., 845 S.W.2d 173, 178 (Tenn. 1992)). ‘“If the injury which occurred
could not have been reasonably foreseen, the duty of care does not arise, and even though
the act of the defendant in fact caused the injury, there is no negligence and no liability.”’
Id. (quoting Doe, 845 S.W.2d at 178).

       The trial court held that Mr. Epps “was not aware of why the ladder fell, and had
no facts to show causation.” Indeed, Mr. Epps testified during his deposition that he did
not know what caused him to fall off the ladder. He said the ladder “just kicked out,” but
he did not know if he simply lost his balance, if the ladder itself failed, or if something
else caused him to fall.

        The facts here are not unlike the facts of Lurks v. City of Newbern, No. W2016-
01532-COA-R3-CV, 2017 WL 384429 (Tenn. Ct. App. Jan. 26, 2017), where the
plaintiff fell while walking on a sidewalk and sued the city for negligence. Lurks, 2017
WL 384429, at *1. The plaintiff asserted that the sidewalk was defective, and she
introduced photographs showing the sidewalk’s poor condition, but she did not know if
she fell because of the sidewalk’s condition. Id. She testified that she did not stumble
before she fell, and she did not know if her foot hit anything that led to her fall. Id. The
trial court held that the plaintiff had failed to prove the city was negligent because she
could not connect her injury to the defective condition of the sidewalk. Id. at *3. The
Court of Appeals affirmed the trial court’s decision, explaining “we will not presume
negligence simply because an accident occurred. A plaintiff must be able to prove
causation.” Id.; see also Hickman v. Jordan, 87 S.W.3d 496, 499 (Tenn. Ct. App. 2001)
(“[N]egligence is not presumed from the mere fact of an accident or injury.”). The Lurks
court went on to say:

       “Negligence shall not be presumed absent an affirmative demonstration
       from the evidence. Therefore, in the context of injuries to plaintiffs
       resulting from a fall, mere speculation about the cause of an injury is
       insufficient to establish liability on a negligence claim. As such, a plaintiff
       will be prevented from establishing negligence when he, either personally
       or with the use of outside witnesses, is unable to identify what caused the
       fall. In other words, a plaintiff must know what caused him to slip and fall.
       A plaintiff cannot speculate as to what caused the fall.”


                                            -7-
Lurks, 2017 WL 384429, at *3 (quoting Pittinger v. Ruby Tuesday, Inc., No. M2006-
00266-COA-R3-CV, 2007 WL 935713, at *3 (Tenn. Ct. App. Mar. 28, 2007)); see also
Mullins v. Nash, No. 01A01-9403-CV-00138, 1994 WL 485581, at *2 (Tenn. Ct. App.
Sept. 9, 1994) (affirming trial court’s decision granting defendant summary judgment
where record did not reveal cause of plaintiff’s fall). Thus, Mr. Epps could not carry his
burden on an essential element of his case, the condition of the ladder was a cause in fact
of his fall and injury.

        Turning to proximate cause, the trial court found that it was undisputed that if the
ladders were defective, Ms. Thompson was not aware of the defects. This finding by the
trial court is supported by the record. When Ms. Thompson filed her motion for
summary judgment, she submitted a statement of undisputed material facts. In paragraph
26, she stated: “Ms. Thompson does not believe that either ladder was dangerous or
defective. If they were defective, she had no knowledge of any defect.” Mr. Epps
responded to this paragraph by stating: “Admitted for the purpose of Summary
Judgment.” In his motion to alter or amend, Mr. Epps asked the trial court to reconsider
his response, explaining that he had told Ms. Thompson that the ladders were “old,” and
that this statement by him should be interpreted as proof that Ms. Thompson was aware
of the ladders’ defective condition. The trial court denied Mr. Epps’ motion to alter or
amend, writing that the findings of fact it set forth in its earlier order granting the motion
“were appropriate.”

       We agree with the trial court that Mr. Epps failed to put forth evidence
establishing a genuine issue for trial concerning proximate cause. Mr. Epps has not
pointed to any evidence showing that it was foreseeable to Ms. Thompson that Mr. Epps
would suffer an injury as a result of the ladders’ conditions. In support of his opposition
to Ms. Thompson’s motion for summary judgment, Mr. Epps submitted an affidavit by an
engineer that he retained to inspect the ladders and give his opinion of the ladders’ safety.
The expert did not identify in his report the date when he inspected the ladders. His
report is dated April 28, 2017, which is more than two years after Mr. Epps fell off the
folding ladder. In addition, the expert focused on the condition of the extension ladder,
not the folding ladder, and he did not link the folding ladder’s condition to Mr. Epps’ fall.

       Ms. Thompson moved to strike the expert’s affidavit because it did not meet the
requirements of Tenn. R. Civ. P. 56.06. The record does not reflect whether the trial
court ruled on Ms. Thompson’s motion to strike. The trial court did not appear to rely on
the expert’s affidavit in granting Ms. Thompson’s motion for summary judgment, and
Ms. Thompson’s motion to strike Mr. Epps’ expert’s affidavit is not an issue on appeal.
In any event, we do not find that the expert’s affidavit assists Mr. Epps because it fails to
provide evidence establishing causation or proximate cause.

       In a similar case where the plaintiff fell while walking on a piece of roofing
material that the defendant used as a sidewalk, the plaintiff’s expert did not inspect the

                                            -8-
area where the plaintiff fell until close to a year after the fall. Mullins, 1994 WL 485581,
at *2. Based on this lapse of time, we concluded that the plaintiff had “failed to present
any evidence regarding the condition of the accident scene at the time she fell.” Id. We
also noted that ‘“[t]he mere possibility of a causal relationship, without more, is
insufficient to qualify as admissible expert opinion.’” Id. (quoting Lindsey v. Miami Dev.
Corp., 689 S.W.2d 856, 862 (Tenn. 1985)). Here, Mr. Epps did not provide proof that
Ms. Thompson’s conduct was ‘“a substantial factor in bringing about the harm,’” or that
‘“the harm giving rise to the action”’ was reasonably foreseeable ‘“by a person of
ordinary intelligence and prudence.”’ Hale, 166 S.W.3d at 719 (quoting Haynes, 883
S.W.2d at 612). Thus, Mr. Epps did not prove proximate cause.

       Mr. Epps asserts that his relationship with Ms. Thompson was that of employer-
employee, whereas Ms. Thompson asserts Mr. Epps was an independent contractor. See,
e.g., Galloway v. Memphis Drum Serv. & Liberty Mut. Ins. Co., 822 S.W.2d 584, 586
(Tenn. 1991) (discussing factors courts consider in determining whether worker is
employee or independent contractor). Regardless of whether Mr. Epps was an employee
or an independent contractor, Mr. Epps is not entitled to continue his action where he is
unable to establish cause in fact or proximate cause, two elements of his claim for
negligence.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed. The costs of this appeal shall be
assessed against the appellant, Matthew Epps, for which execution shall issue if
necessary.

                                                  ________________________________
                                                  ANDY D. BENNETT, JUDGE




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