                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
                                                               FILED
_____________________________________________________________________________

MICHELLE LYNN DURHAM and               Gibson Circuit No. 7089 June 3, 1996
husband ROBERT WAYNE DURHAM,                C.A. No. 02A01-9502-CV-00033
                                                            Cecil Crowson, Jr.
      Plaintiffs/Appellants,                Hon. Dick Jerman, Jr., JudgeClerk
                                                             Appellate C ourt



v.
                                                              FILED
LUTHER WEBB and wife, SUE WEBB,
individually and d/b/a WEBB’S BRITISH                            June 3, 1996
PETROLEUM STATION and W. PAUL ARNOLD,
individually and d/b/a ARNOLD CONSTRUCTION                   Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
COMPANY,

      Defendants/Appellees.

TIMOTHY L. WARNOCK and JOHN B. ENKEMA, Bass, Berry & Sims, Nashville,
Attorneys for Plaintiffs/Appellants.

FLOYD S. FLIPPIN, Adams, Ryal & Flippin, Humboldt
Attorney for Defendants/Appellees Luther Webb and wife, Sue Webb,
individually and d/b/a Webb’s British Petroleum Station.

AFFIRMED

Opinion Filed:
_____________________________________________________________________________

TOMLIN, Sr. J.

      Michelle Lynn Durham and Robert Wayne Durham (“plaintiffs” or by name)1

brought this suit in the Circuit Court of Gibson, County against Luther Webb and

wife Sue Webb, individually and d/b/a Webb’s British Petroleum Station

(“defendants”),2 seeking damages for defendant’s alleged negligence that

caused plaintiff Michelle Durham to fall in defendant’s parking lot, causing injuries.

The trial court granted defendant’s motion for summary judgment, from which this

appeal is taken. The sole issue presented is whether the trial court erred in granting

defendant’s motion for summary judgment. We find no error and affirm.




1
 Michelle Lynn Durham was the party who fell and was injured. Robert
Wayne Durham’s claim for loss of consortium is derivative of hers.
2
Defendant W. Paul Arnold, individually and d/b/a Arnold Construction
Company, was dismissed from the case with prejudice.

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    On the day of the accident in question, plaintiff stopped at defendant’s gas

station in Trenton on her way to a doctor’s appointment. Prior to plaintiff’s arrival

in defendant’s parking lot, it had been raining for a short while. There was

testimony that it had either stopped raining or was raining only slightly at the time

of plaintiff’s arrival. After parking in front of the door to defendants’ convenience

store, plaintiff entered for the purpose of buying a carton of milk. After making the

purchase, she exited the store and walked down the sidewalk to the pay phone

to call her husband. On her way back to the car, she stepped off the sidewalk

onto the parking lot and slipped and broke her leg and ankle. This suit followed.




      Plaintiff’s complaint charged defendants with negligence for failure to

exercise reasonable care in maintaining the entrance and parking area of their

place of business.    Specifically, plaintiffs contend that defendants failed to

properly clean the parking lot of oil buildup, alleging that the oil had accumulated

in areas where cars normally parked, creating a dangerous, slippery condition.

As grounds for its summary judgment, defendants contended that they could not

be held liable inasmuch as they had no actual or constructive notice of a

dangerous or defective condition in the parking lot prior to the accident.

Defendants filed depositions of plaintiffs, defendants, and three employees of

defendants in connection with the summary judgment motion. Plaintiffs filed the

affidavit of Faye King, a frequent customer of defendants, in response to

defendants’ motion.



      Following the hearing on the summary judgment motion, the trial court

entered an order, which read in pertinent part as follows:



      Plaintiffs should be given sixty (60) days from September 7, 1994, to file
      an Affidavit from an expert witness to the effect that the parking lot
      area where this accident occurred on January 13, 1992 was in an

                                          2
      unreasonable and dangerous condition on the date and time of this
      accident. If said expert Affidavit is filed within sixty (60) days from
      September 7, 1994, the Court will consider the Affidavit and make its
      decision on the Motion for Summary Judgment. If the Affidavit is not
      filed on or before sixty (60) days from September 7, 1994, then said
      Motion for Summary Judgment will be granted. (emphasis added)



Following the expiration of the sixty (60) day period without plaintiffs having filed

an affidavit of an expert addressing the alleged unreasonable and dangerous

condition of the property at the time of the accident, the trial court entered an

order granting defendants’ summary judgment motion.



      Before addressing the summary judgment issue itself, we must deal with a

secondary issue raised by plaintiffs, who contend that the above-quoted

language establishes that the trial court required them to produce an expert

witness to testify that the combination of oil and water in the parking lot created

a dangerous condition. Plaintiffs further contend that expert testimony was not

required on this subject in this state because such information is within the

knowledge of ordinary people. Plaintiffs also contend that the trial court was in

error in ruling that the affidavit of Faye King, which plaintiffs submitted in response

to defendants’ motion for summary judgment, was not an expert witness on the

subject.



      Defendants contend that plaintiffs’ characterization of this portion of the trial

court’s order is in error, and that the thrust of the trial court’s ruling was to provide

plaintiffs with additional time (sixty (60) days) to attempt to carry their burden of

proof as to the existence of a dangerous or defective condition in defendants’

parking lot on the day of the accident, and that if such a condition existed, to

establish that defendants’ had actual or constructive notice of that condition. It

is defendants’ characterization of this order that if plaintiffs did not avail themselves

of this additional time to present such an expert, the court would grant summary


                                           3
judgment to defendants. We agree with defendants’ characterization of this

order. Although the trial court used the term “expert witness,” we are of the

opinion that the purpose of the order was to give plaintiffs an additional sixty (60)

days to offer proof as to the existence of a dangerous condition on defendants’

parking lot at the time of this occurrence. Plaintiffs’ contention is without merit,

which leaves us with the responsibility of considering the correctness of the trial

court’s granting of summary judgment to defendants.



         No presumption of correctness attaches to decisions granting summary

judgments because they involve only questions of law. Thus, on appeal, we must

make a fresh determination concerning whether or not requirements of T.R.C.P. 56

have been met. Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.

1991).



         It is appropriate for a trial court to grant summary judgment where (1) there

is no genuine issue as to any material fact, and (2) the moving party is entitled to

judgment as a matter of law. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). The

moving party bears the burden of demonstrating that no genuine issue of material

of fact exists. Id. at 210. In Byrd, the court stated:



         Once it is shown by the moving party that there is no genuine issue of
         material fact, the nonmoving party must then demonstrate, by
         affidavits or discovery materials, that there is a genuine, material fact
         dispute to warrant a trial. In this regard, Rule 56.05 provides that the
         nonmoving party cannot simply rely upon his pleadings but must set
         forth specific facts showing that there is a genuine issue of material
         fact for trial. ‘If he does not so respond, summary judgment . . . shall
         be entered against him.’



Id. at 211 (citations omitted).



         A party may also move for summary judgment demonstrating that the


                                            4
opposing party will not be able to produce sufficient evidence at trial to withstand

a motion for directed verdict. If, after a sufficient time for discovery has elapsed,

the nonmoving party is unable to demonstrate that he or she can indeed do so,

summary judgment is appropriate. Id. at 213 (citing Celotex Corp. v. Catrett, 106

S. Ct. 2548, 2552 (1986)).



      In taking our fresh look at the record to determine whether the evidence

supports the action of the trial court, we must view the evidence in the light most

favorable to the nonmoving party and must also draw all reasonable inferences

in the nonmoving party’s favor. Byrd, 847 S.W.2d at 210-11.



      Under the law of this state, the owner or operator of a place of business

owes customers a duty



      to exercise reasonable care to keep the premises in a reasonably
      safe and suitable condition, including the duty of removing or
      warning against a dangerous condition traceable to persons for
      whom the proprietor is not responsible . . . . if the circumstances of
      time and place are such that by the exercise of reasonable care the
      proprietor should have become aware of such condition.



Simmons v. Sears Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986).



      Although a proprietor must maintain the premises of his store in a reasonable

and safe condition, he is not an insurer of a customer’s safety. Before an owner

or operator of premises can be held liable for negligence in allowing a dangerous

or defective condition to exist, it must be shown that the condition (1) has been

created by the owner, operator or his agent or, (2) if the condition was created by

someone other than the owner or 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. Jones v. Zayre, Inc. 600 S.W.2d 730, 732 (Tenn. App. 1980).


                                         5
If liability is to be predicated on constructive knowledge by a defendant, the proof

must show the dangerous or defective condition existed for such a length of time

that the defendant knew, or in the exercise of ordinary care should have known,

of its existence. Id.



         In reviewing this record, we find that plaintiffs were unable to establish that

plaintiff Michelle Durham actually fell on an oil spot in the parking lot. Plaintiff testified

in her deposition that at the time she fell, she never saw an oil spot. She testified that she

and her husband saw oil in the parking lot when they came back to inspect the lot a week

after the accident.



         In addition, two employees of defendants both testified in their depositions that

they were unaware of an oil spill in the parking lot at the time of the accident. Dorothy

Slaughter, who was responsible for sweeping the parking lot, stated that she had just

finished sweeping the parking lot prior to plaintiff’s fall. Slaughter testified that there was

no oil on the parking lot at that time. Slaughter testified that when she does find oil on

the pavement, she applies an absorbent material on the spot to clean it up. Melinda

Turner, who had worked as a cashier for defendant for six years, testified that she had

never noticed a build up of oil on the parking lot.



         The only evidence plaintiffs submitted in response to defendants’ motion for

summary judgment was the affidavit of Faye King, a frequent customer of defendants’

store.    King stated that she had observed oil spots in defendants’ parking lot on

undisclosed prior occasions. However, K ing’s affidavit fails to comply with T.R.C.P.

56.05, which requires that the affiant state that her testimony is based on personal

knowledge. T.R.C.P. 56.05. Moreover, King’s affidavit does not create a genuine issue

of material fact concerning defendants’ actual or constructive knowledge of the oil spot

at the location where plaintiff fell at the time of the accident.



         From reading this record in its entirety, we are of the opinion that there is no

                                              6
genuine issue of material fact as to whether there was oil on the pavement on the date and

time of the accident, and in the location where plaintiff fell. Even if plaintiffs could have

established the existence of an oil spot, there is no proof in the record creating a genuine

issue of material fact as to how long the spot might have been there so as to charge

defendants with constructive notice of an oil spot in the location of plaintiff’s fall.

Plaintiffs’ proof does not measure up to the standards applicable to her as a nonmoving

party based on the facts defendants presented in support of their motion for sum mary

judgment.



       The judgment of the trial court is in all respects affirmed. Costs in this cause on

appeal are taxed to plaintiffs, for which execution may issue if necessary.



                                            ______________________________________
                                            TOMLIN, Sr. J.



                                            ______________________________________
                                            CRAWFORD, P.J.



                                            ______________________________________
                              LILLARD, J.




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