IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 3, 2023 Session

MARQUICA L. BEASLEY ET AL. v. JAE NAILS BAR, LLC

Appeal from the Circuit Court for Davidson County

No. 19C1530 Thomas W. Brothers, Judge

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No. M2022-01330-COA-R3-CV

___________________________________

This is a premises liability action in which the plaintiff slipped and fell while she was 

walking to a pedicure station in a nail salon. Two principal issues are presented. First, the 

plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion 

for spoliation of evidence by finding that the defendant was not put on notice that a video 

recording from a surveillance camera in the nail salon was relevant to pending or 

reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by 

summarily dismissing her complaint on the basis that there was no proof that the defendant 

had created the allegedly hazardous condition in the nail salon or that the defendant had 

actual or constructive notice of the condition. We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Luvell L. Glanton, Nashville, Tennessee, for the appellants, Marquica L. Beasley and Trent 

Beasley.

Colin B. Calhoun, Nashville, Tennessee, for the appellee, Jae Nails Bar, LLC.

OPINION

FACTS AND PROCEDURAL HISTORY

Marquica Beasley (“Mrs. Beasley”) and her husband, Trent Beasley (“Mr. 

Beasley”) (or collectively “Plaintiffs”), brought this personal injury action on the basis of 

negligence and loss of consortium after an incident that occurred at a nail salon owned and

operated by Jae Nails Bar, LLC (“Defendant”).1 On July 12, 2018, Mrs. Beasley and her 

 

1 Defendant provides manicure and pedicure services.

12/11/2023
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16-year-old daughter were at Jae Nails Bar when Mrs. Beasley was called back to receive 

a pedicure. As she walked to the pedicure station, Mrs. Beasley slipped on the tile floor. 

The salon manager, Kiet Luc (“Mr. Luc”), heard “what sounded like a fall” and observed 

Mrs. Beasley sitting on the tile floor of the salon. Mr. Luc offered to assist Mrs. Beasley in 

getting up, but she declined, getting up on her own. 

Mrs. Beasley did not leave immediately following her fall; instead, she remained at 

the salon and received a pedicure. Mrs. Beasley later testified that by the time her pedicure 

service was complete, “the right side of my ankle and right side of my foot . . . the whole 

area [was] swollen. . . . I just remember my foot wouldn’t go all the way back into my shoe 

and it was time for me to go to the doctor.” 

Mrs. Beasley also testified to a “dust” or “residue . . . all on the palm of my hand, 

on the back of my pants, on my elbows, . . . on the bottom of my shoes, everywhere.” Mrs. 

Beasley’s daughter testified to seeing “dust on my mother’s clothes, hands, and arms” and 

that she “helped brush some of the debris off her clothes.” As she was leaving the salon, 

Mrs. Beasley took a photo of the residue on the floor, which was later introduced as an 

exhibit. However, Mrs. Beasley stated that the photo did not reveal the amount of dust that 

was on the floor at the time that she fell. She did not take photographs of the dust on her 

clothing. 

Mr. Luc testified that he “inspected the floor and did not observe any slippery or 

dangerous condition on the surface of the tile floor where Mrs. Beasley’s fall occurred.” 

Angie Hoang, the owner of the salon, arrived at the salon after Mrs. Beasley’s fall and had 

the same observations about the floor as Mr. Luc. 

Mrs. Beasley never returned to Defendant’s salon and neither she nor her counsel 

communicated with Defendant following the incident until after this action was 

commenced.

On June 28, 2019, Plaintiffs filed their complaint, asserting a claim based on 

premises liability and loss of consortium. Defendant filed its answer on March 23, 2020, 

asserting as defenses, inter alia, failure to state a claim, assumption of risk, and lack of 

notice of the dangerous condition. 

During discovery, Plaintiffs learned that Defendant had a surveillance camera that 

monitored the interior of the salon, but that the video recording of the day in question was 

overwritten as a matter of course six months after the incident. Consequently, in December 

2021, Plaintiffs filed a “Motion for Curative Action to Remedy TRCP 34A.02 Violations,” 

alleging spoliation of video evidence from cameras that monitored the nail salon. 

Specifically, in response to Defendant’s statement that it was “not in possession of any 

footage captured in July of 2018, as the captured video is automatically overwritten every 

six months,” Plaintiffs argued that “at the time the evidence was destroyed, Jae Nails Bar, 
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LLC knew or should have known that the evidence was relevant to reasonably foreseeable 

litigation.” Plaintiffs also argued that “Defendant either intentionally caused and/or 

negligently or inadvertently allowed for critical evidence of camera footage showing the 

fall and surrounding conditions to conveniently disappear or be discarded.” Then on June 

21, 2022, Plaintiffs filed a second “Motion for Spoliation and Curative Action to Remedy 

TRCP 34A.02 Violations” that included additional testimony from Mr. Luc regarding the 

surveillance system, stating that he “almost never checks” and “never watched any” of the 

camera footage. 

Pursuant to an order entered on July 26, 2022, the court found that “Rule 34A.02 

sanctions are not appropriate” in this case because

there is nothing in the record to suggest that Jae Nails Bar knew or should 

have known that the video tape in the case at hand was relevant to pending 

or reasonably foreseeable litigation as they were not put on notice that the 

Plaintiff was injured to the extent that she planned to file a lawsuit.

Furthermore, the court noted that the complaint “was not filed until almost a year 

after the fall at issue and [neither] the Plaintiff nor her counsel contacted the defendant 

after the date of injury to let them know that a lawsuit was imminent.” The court further 

found “no evidence that the video tape was erased with any intentional or fraudulent intent 

to conceal any evidence.”

In the interim, on May 13, 2022, Defendant filed a motion for summary judgment 

on the ground that “it did not have actual or constructive knowledge of any hazardous 

condition on the surface of the tile floor which allegedly caused Mrs. Beasley’s fall.” 

Plaintiffs timely filed a response in opposition to the motion. 

Pursuant to an order entered on August 23, 2022, the trial court granted Defendant’s 

motion for summary judgment. The relevant portion of the trial court’s order granting 

summary judgment reads as follows:

Reviewing the evidence in the light most favorable to the non-moving party, 

and drawing all reasonable inferences in favor of the non-moving party, the 

Court finds as follows:

In order for an operator or owner of a property to be held liable 

for negligence in allowing a dangerous of defective condition, 

the plaintiff must show that the condition was caused or created 

by the owner, operator or agent or if the condition was created 

by someone else that the owner or operator had actual or 

constructive knowledge that the condition existed prior to the 
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accident. Blair v West Town Mall, 130 S.W.3d 761, 764 (Tenn. 

2004).

The Court finds that it is undisputed that the defendant 

remodeled the premises. The Court also finds that it is 

undisputed that the remodeling was completed in May of 2018. 

(Deposition of Angie Hoang page 9, line 15.) The incident in 

the case at hand occurred on July 12, 2018. The Court further 

finds that it is disputed what if any substance was on the floor 

which made the Plaintiff fall, however, the Court does not need 

to determine this issue as the Court finds that there is no proof 

that the defendant created the condition or had actual or 

constructive notice of any condition. Even taking as true the 

Plaintiff's statement that there was a residue of some sort on 

the back of her black pants and shirt, the Court finds that there 

is no proof how long any alleged dust and/or other fibrous 

substance was on the floor or how it got on the floor. Based on 

all of the foregoing, the Court finds that there is no genuine 

issue of material fact and that Defendant has negated an 

essential element of Plaintiffs’ claim. Therefore, Defendant is 

entitled to judgment as a matter of law.

This appeal followed. 

ISSUES

The issues presented, which we have rephrased and consolidated, are:2

1. Whether the trial court abused its discretion and erred in denying Plaintiffs’ 

Motion for Spoliation and Curative Action to Remedy Tenn. R. Civ. P. 

34A.02 Violations?

 

2 Plaintiffs raised a third issue, “Did the trial court error by granting Defendant’s motion for 

summary judgment by making a finding that was not argued by Defendant and was not supported by the 

record?” However, Plaintiffs failed to present a meaningful argument with citations to authorities in their 

brief. See Tenn. R. App. P. 27(a)(7)(A). Thus, this issue is waived. See Sneed v. Bd. of Prof’l Resp. of Sup.

Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate, to research or

construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in 

support of his or her contention or merely constructs a skeletal argument, the issue is waived.”); see also 

Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006) (holding that the failure of a party to 

cite to any authority or to construct an argument regarding his or her position on appeal constitutes waiver 

of that issue). 

.
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2. Whether the trial court erred in granting Defendant’s Motion for Summary 

Judgment on the basis that there was “no proof” regarding how long any

debris had been present on the floor, despite the fact that Tennessee case law 

allows a jury to consider contextual facts beyond merely the exact time an 

unreasonably unsafe condition was created on a floor? 

ANALYSIS

I. SPOLIATION OF EVIDENCE

Plaintiffs contend that the trial court abused its discretion when it denied their 

Motion for Spoliation and Curative Action to Remedy Tennessee Rule of Civil Procedure 

34A.02 Violations. More specifically, Plaintiffs submit that the trial court abused its 

discretion by reaching a decision based on a “clearly erroneous assessment of the 

evidence,” citing Wright ex rel. Wright v. Wright, 337 SW 3d 166, 176 (Tenn. 2011). 

Tennessee Rule of Civil Procedure 34A.02 provides that “Rule 37 sanctions may be 

imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or 

conceals evidence.”3 Tennessee courts may impose a range of sanctions under Rule 37.02 

for violation of a discovery order. Tatham v. Bridgestone Americas Holding, Inc., 473 

S.W.3d 734, 744 (Tenn. 2015); see Tenn. R. Civ. P. 37.02. These sanctions may include, 

inter alia, an order precluding the offending party from maintaining a claim or defense, an 

order establishing certain facts as true, an order striking pleadings or portions of pleadings, 

and entry of a default judgment against the disobedient party. Id. In Tatham, our Supreme 

Court stated as follows:

The determination of whether a sanction should be imposed for the spoliation 

of evidence necessarily depends upon the unique circumstances of each case. 

 

3 As is explained in Tatham, 473 S.W.3d at 744:

Prior to Rule 34A.02, Rule 37 sanctions were limited to failures to comply with discovery 

orders and, therefore, generally were not available for the spoliation of evidence occurring 

prior to any such order. See Tenn. R. Civ. P. 37; Alexander, 156 S.W.3d at 15 (noting that 

Rule 37 does not “explicitly provide for sanctions for discovery abuse absent a court 

order”). Notably, however, in Mercer and Lyle, this Court upheld the inherent power of 

trial courts to impose sanctions to prevent abuse of the discovery process even while 

recognizing the fact that such sanctions were not expressly authorized by the Rules of Civil 

Procedure. Mercer, 134 S.W.3d at 133; Lyle, 746 S.W.2d at 699; see also Alexander, 156 

S.W.3d at 15. Thus, the adoption of Rule 34A.02 effectively codified the inherent authority 

already recognized by Tennessee courts to impose sanctions during the discovery process. 

See Gross, 2007 WL 3171155, at *6 (noting that, although Rule 34A.02 did not apply at 

the time of trial, “under both the pre-amendment and post-amendment rule, the court has 

broad discretion in deciding what sanctions, if any, are appropriate”).
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Factors which are relevant to a trial court’s consideration of what, if any, 

sanction should be imposed for the spoliation of evidence include: 

(1) the culpability of the spoliating party in causing the 

destruction of the evidence, including evidence of intentional 

misconduct or fraudulent intent;

(2) the degree of prejudice suffered by the non-spoliating party 

as a result of the absence of the evidence; 

(3) whether, at the time the evidence was destroyed, the 

spoliating party knew or should have known that the evidence 

was relevant to pending or reasonably foreseeable litigation; 

and 

(4) the least severe sanction available to remedy any prejudice 

caused to the non-spoliating party. 

473 S.W.3d at 746–47 (footnote omitted).

It is within the broad discretion of a trial court to impose sanctions for the purpose 

of preserving the integrity of the discovery process. Id. at 742 (citing Mercer v. Vanderbilt 

Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004)). The authority of the trial court to impose 

sanctions “is rooted in the trial court’s inherent power to ensure the proper administration 

of justice.” Id. (citing Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1998)). “Trial court 

decisions on pretrial discovery disputes are reviewed using an abuse of discretion 

standard.” Funk v. Scripps Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019) (citing Lee 

Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). Thus, we review a trial court’s 

discretionary decision concerning the spoliation of evidence pursuant to the abuse of 

discretion standard of review.

Discretionary decisions must take the applicable law and the relevant facts 

into account. An abuse of discretion occurs when a court strays beyond the 

applicable legal standards or when it fails to properly consider the factors 

customarily used to guide the particular discretionary decision. A court 

abuses its discretion when it causes an injustice to the party challenging the 

decision by (1) applying an incorrect legal standard, (2) reaching an illogical 

or unreasonable decision, or (3) basing its decision on a clearly erroneous 

assessment of the evidence. 

To avoid result-oriented decisions or seemingly irreconcilable precedents, 

reviewing courts should review a lower court’s discretionary decision to 

determine (1) whether the factual basis for the decision is properly supported 
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by evidence in the record, (2) whether the lower court properly identified and 

applied the most appropriate legal principles applicable to the decision, and 

(3) whether the lower court’s decision was within the range of acceptable 

alternative dispositions. 

Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305 (Tenn. 2020) 

(quoting Lee Med., Inc., 312 S.W.3d at 524–25 (citations omitted)).

In Mrs. Beasley’s affidavit in support of her motion, she testified that she yelled 

when she fell, at which time her daughter and Mr. Luc came to her assistance. As Mrs. 

Beasley explained in her deposition, she remained at the salon and received a pedicure, 

during which she informed her attendant that she was experiencing pain and requested that 

the attendant avoid rubbing the swollen area of her foot.4 This was supported by the 

testimony of Mrs. Beasley’s daughter, who testified that Mrs. Beasley complained about 

being injured while they remained at the nail salon. 

It is undisputed, however, that no one notified Defendant, either on the day of the 

incident or at any time prior to the commencement of this action, that a claim or law suit 

was contemplated. Moreover, it is undisputed that no one notified Defendant to preserve 

any evidence in anticipation of a possible law suit.

For its part, Defendant insists that Plaintiffs’ contentions lack a compelling 

reasoning for the imposition of sanctions for several reasons, including, but not limited to,

the following:

 

4 Mrs. Beasley’s deposition testimony on this issue reads:

Q. Did you tell [Mr. Luc] that, you felt you were injured?

A. I don't remember having a conversation with [Mr. Luc], you know, after that. Maybe I 

had told him I was going to the doctor, but I can’t remember if my leg was swelling or if I 

mentioned it to the pedicure lady. I can’t recall that part. 

Q. So at the time of the fall you had not actually had the pedicure, correct?

A. Correct.

Q. And that is the purpose you were there to get a pedicure?

A. Correct.

Q. And did you go ahead and proceed with getting the pedicure?

A. I did, and I told her she had to speed the pedicure up and stop touching the right part of 

my ankle. As she was doing it, that’s when the swelling was getting more severe.

Q. So you told her to not touch where?

A. I told her she had to hurry up, I’m going – that’s when I’m thinking I told her I was 

going to have to go to the doctor because she couldn’t touch the area anymore.
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(1) At no point in time after Mrs. Beasley’s fall did she or anyone acting on 

her behalf contact Defendant and advise that she would be pursuing a 

personal injury claim; 

(2) At no point in time after Mrs. Beasley’s fall did she or anyone acting on 

her behalf submit an “evidence preservation request” to Defendant regarding 

video surveillance camera footage or anything else; 

(3) Defendant had no notice that Plaintiffs were pursuing personal injury and 

loss of consortium claims against it until 2020;5and

(4) Any video surveillance camera footage capturing Mrs. Beasley’s fall 

would have been overwritten after six months as a matter of routine operating 

procedure; 

In its order denying the motion, the trial court stated that it considered the factors 

set forth in Tatham, 473 S.W.3d at 734, and concluded that Rule 34A.02 sanctions were 

not appropriate for the following reasons:

Pursuant to the Tatham case, the Court must look at the totality of the 

circumstances. The Court finds that there is nothing in the record to suggest 

that Jae Nails Bar knew or should have known that the video tape in the case 

at hand was relevant to pending or reasonably foreseeable litigation as they 

were not put on notice that the Plaintiff was injured to the extent that she 

planned to file a lawsuit. The Complaint in the case at hand was not filed 

until almost a year after the fall at issue and [neither] the Plaintiff nor her 

counsel contacted the defendant after the date of injury to let them know that 

a lawsuit was imminent. In addition, the Court finds that there is no evidence 

that the video tape was erased with any intentional or fraudulent intent to 

conceal any evidence.

As noted earlier, Plaintiffs submit that the trial court abused its discretion by 

reaching a decision based on a “clearly erroneous assessment of the evidence.” 

Furthermore, as argued in their brief on appeal, Plaintiffs contend that 

[b]ecause the trial court concluded that there was not a scintilla of evidence 

to suggest that Defendant was put on notice of the seriousness of Plaintiff’s 

injury, the trial court deprived the Plaintiffs the right to have the trial court 

determine whether Defendant’s conduct could have risen to the degree to 

have warranted spoliation sanctions.

 

5 The action was commenced in 2019, but Defendant insists that it did not receive notice of the 

filing of the complaint until 2020 due to lack of service of process.
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It is apparent that Plaintiffs have misconstrued the court’s factual findings, as the 

court did not state that “there was not a scintilla of evidence.” Instead, the court found that

there is nothing in the record to suggest that Jae Nails Bar knew or should have known that 

the video tape in the case at hand was relevant to pending or reasonably foreseeable 

litigation as they were not put on notice that the Plaintiff was injured to the extent that she 

planned to file a lawsuit. Indeed, there is evidence that Mrs. Beasley fell, that she 

experienced pain, and that she planned to see a doctor. However, this evidence is 

insufficient to establish that Defendant “knew or should have known that the [video 

recording] was relevant to pending or reasonably foreseeable litigation.” See Tatham, 473 

S.W.3d at 747. 

Moreover, as Defendant correctly notes, there is no evidence of intentional 

destruction of evidence. As a routing practice, digital recordings taken by the surveillance 

cameras in the nail salon are automatically overwritten every six months. This is significant 

because sanctions for spoliation “[do] not arise where the destruction was a matter of 

routine with no fraudulent intent.” Thurman-Bryant Elec. Supply Co., Inc. v. Unisys Corp., 

Inc., No. 03A01-CV00152, 1991 WL 222256, at *5 (Tenn. Ct. App. Nov. 4, 1991); see 

also Tatham, 473 S.W.3d at 741 (“Since Thurman–Bryant, the Court of Appeals repeatedly 

has emphasized that such negative inference may be drawn only where ‘the spoliation 

occurs in circumstances indicating fraud and a desire to suppress the truth’ but not where 

‘the destruction was a matter of routine with no fraudulent intent’”) (citations omitted).

Considering the unique circumstances of this case, see Tatham, 473 S.W.3d at 746,

including the absence of evidence suggesting that Defendant was culpable for causing the 

destruction of the video recording, along with the absence of evidence indicating that 

Defendant knew or should have known that the video recording was relevant to pending or 

reasonably foreseeable litigation, we find no abuse of discretion with the trial court’s 

decision to deny Plaintiffs’ Rule 34A.02 motion.

II. SUMMARY DISMISSAL

Plaintiffs also contend that the trial court erred by granting Defendant’s motion for 

summary judgment. More specifically, they contend that the court erred by finding that 

there was “no proof” regarding how long any debris had been present on the floor, despite 

the fact that Tennessee case law allows a jury to consider contextual facts beyond merely 

the exact time that an unreasonably unsafe condition was created on a floor.

This Court reviews a trial court’s decision on a motion for summary judgment de 

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, 

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citations omitted). Accordingly, this court 

must make a fresh determination of whether the requirements of Tennessee Rule of Civil 

Procedure 56 have been satisfied. Id.; Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997). 
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In so doing, we accept the evidence presented by the nonmoving party as true, consider the 

evidence in the light most favorable to the nonmoving party, and draw all reasonable 

inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). 

Summary judgment should be granted when “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. “The moving party has the ultimate burden of 

persuading the court that there are no genuine issues of material fact and that the moving 

party is entitled to judgment as a matter of law.” Martin v. Norfolk S. R.R. Co., 271 S.W.3d 

76, 83 (Tenn. 2008) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). As our 

Supreme Court explained in Rye: 

[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.

477 S.W.3d at 264 (emphasis in original).

To recover under a theory of premises liability, the plaintiff must establish the 

elements of negligence, including: 1) a duty of care owed by the defendant to the 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. See Rice v. Sabir, 979 

S.W.2d 305, 308 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). 

For the owner or operator of a premises to be held liable for negligence in allowing 

a dangerous or defective condition to exist on its premises, the plaintiff must prove, in 

addition to the elements of negligence, that: 1) the condition was caused or created by the 

owner, operator or his agent, or 2) if the condition was created by someone other than the 

owner, operator or his agent, that the owner or operator had actual or constructive notice 

that the condition existed prior to the accident. Blair v. West Town Mall, 130 S.W.3d 761, 

764 (Tenn. 2004) (citations omitted). The relevant legal principles are further explained in 

Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341 (Tenn. 2014) as follows:

“Business proprietors are not insurers of their patrons’ safety.” Blair v. West 

Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004); McCormick v. Waters, 594 

S.W.2d 385, 387 (Tenn. 1980). 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 
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through the exercise of reasonable diligence. Eaton v. McLain, 891 S.W.2d 

587, 594 (Tenn. 1994). A property owner’s duty does not include, however, 

“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). . . . Thus, persons seeking to prevail against a property owner 

on a premises liability claim must prove the elements of a negligence claim, 

and in addition, must prove either that “the condition was caused or created 

by the owner, operator, or his agent,” or “if the condition was created by 

someone other than the owner, operator, or his agent, that the owner or 

operator had actual or constructive notice that the condition existed prior to 

the accident.” Blair, 130 S.W.3d at 764.

Id. at 350 (emphasis in original) (footnote omitted).

As noted earlier, the trial court found that it was undisputed that Defendant had hired 

a contractor to remodel the premises. However, it also found it was undisputed that the 

contractor completed the remodeling in May of 2018 and Mrs. Beasley’s fall did not occur 

until July of 2018.

6 While Plaintiffs do not dispute that the contractor’s services concluded 

in May, they contend:

that the trial court made a critical factual error by concluding that there could 

have been no construction work or residue caused or created by Defendant 

post-May 2018. In fact, [Mr. Luc], Defendant’s agent and business partner, 

was doing construction projects inside the building and could have created 

the floor residue in July 2018. The trial court did not have a factual record 

before it to support a ruling as a matter of law. There is nothing in the record 

that forecloses the possibility that Defendant did not create the hazard.

We respectfully disagree, because, as the trial court correctly found, there is no 

evidence that Defendant created the hazard that allegedly existed on the day that Mrs. 

Beasley fell. Nevertheless, Plaintiffs contend that Mr. Luc created the hazard when he 

installed new countertops and did some flooring work after the contractor had finished its 

work in May. However, the only evidence Plaintiffs presented concerning Mr. Luc’s work 

relates to a conversation that Mrs. Beasley had with Mr. Luc during a previous visit, her 

second visit to the nail salon. As Mrs. Beasley explained in her deposition testimony in 

response to a question from Defendant’s counsel:

 

6 Specifically, the trial court found that “it is undisputed that the remodeling was completed in May 

of 2018. (Deposition of Angie Hoang page 9, line 15.) The incident in the case at hand occurred on July 12, 

2018.”
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Q. So you mentioned granite countertops and I think you said something else.

A. Yeah. It was new countertops and flooring type work being done and I 

was just asking, hey, telling [Mr. Luc] that everything looked nice or 

whatever, you know, who did the work, just kind of joking and whatever, 

and he was, like, no, I did the work, and he went on to say, no, I really did 

the work, you know. He didn't say if he did all the work or anything like that, 

but he did say that he had did [sic] what I was talking about. He had did [sic] 

the work.

The record contains no additional evidence concerning Mr. Luc’s construction 

work. Thus, while there is evidence that Mr. Luc performed some construction work after 

the contractor completed its work in May, there is no evidence that Mr. Luc or anyone else 

performed any construction work after Mrs. Beasley’s second visit to the salon. Thus, 

contrary to Plaintiffs’ contentions, there is no evidence to support a finding that Defendant 

created the alleged hazard at issue.

There being no proof that Defendant created the alleged hazard, we must consider 

whether Defendant had actual or constructive notice of the alleged condition. See Blair,

130 S.W.3d at 764. In this regard, the trial court made the following findings: 

Court finds that there is no proof that the defendant created the condition or 

had actual or constructive notice of any condition. Even taking as true the 

Plaintiff’s statement that there was a residue of some sort on the back of her 

black pants and shirt, the Court finds that there is no proof how long any 

alleged dust and/or other fibrous substance was on the floor or how it got on 

the floor. Based on all of the foregoing, the Court finds that there is no 

genuine issue of material fact and that Defendant has negated an essential 

element of Plaintiff’s claim. 

The record contains no evidence upon which to conclude that Defendant or its 

agents or employees had actual knowledge of the existence of a hazardous condition on the 

day in question. Thus, our final consideration is whether Defendant had constructive notice 

of the alleged hazard. “Constructive notice” is explained in detail in Parker as follows: 

“Constructive notice” is defined as “information or knowledge of a fact 

imputed by law to a person (although he may not actually have it) because 

he could have discovered the fact by proper diligence, and his situation was 

such as to cast upon him the duty of inquiring into it.” Hawks v. City of 

Westmoreland, 960 S.W.2d 10, 15 (Tenn. 1997) (quoting Kirby v. Macon 

Cnty., 892 S.W.2d 403, 409 (Tenn. 1994)). Constructive notice may be 

established by showing that a dangerous or defective condition existed for 

such a length of time that a property owner, in the exercise of reasonable 
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care, should have become aware of it. Blair, 130 S.W.3d at 764; Simmons v. 

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

notice may also be established by showing that the dangerous condition 

resulted from “a pattern of conduct, a recurring incident, or a general or 

continuing condition.” Blair, 130 S.W.3d at 765.

446 S.W.3d at 351–52.

Here, Plaintiffs contend that Defendant had constructive notice because its 

employees should have been aware of the alleged hazard due to the location of the area 

where Mrs. Beasley fell. Mrs. Beasley testified that the debris on the floor covered a 10 by

9 foot area of the nail salon. Further, Mr. Luc testified that the size of the store itself was 

1,400-1,500 square feet. Mrs. Beasley also testified that she fell in the area located between 

the manicure stations and the pedicure stations, which Defendant’s employees must

regularly walk across to do their jobs. Thus, Plaintiffs argue that when the evidence is taken 

in the light most favorable to them, a jury could reasonably infer that Defendant should 

have known of the hazard because the area with the debris was frequently trafficked and 

large relative to the small size of the business.

We respectfully disagree. The record contains no evidence that the alleged 

hazardous condition existed for such a length of time that Defendant, in the exercise of 

reasonable care, should have become aware of it. Blair, 130 S.W.3d at 764 (“Constructive 

notice can be established by proof that the dangerous or defective condition existed for 

such a length of time that the defendant, in the exercise of reasonable care, should have 

become aware of the condition”) (citation omitted). Nevertheless, where there is no proof 

as to the length of time a defective condition existed, a plaintiff may prove constructive 

notice by showing “a pattern of conduct, a recurring incident, or a general continuing 

condition indicating the dangerous condition’s existence.” Id. at 765–66 (quoting Martin,

946 S.W.2d at 320). In Blair, the court explained that “allowing plaintiffs to prove 

constructive notice in this manner relieves plaintiffs of the difficult burden of showing the 

duration of a particular occurrence[.]” Id. at 766. Thus, “when a dangerous condition occurs 

regularly, the premises owner is on constructive notice of the condition’s existence” and 

the premises owner has a duty “to take reasonable steps to remedy this commonly occurring 

dangerous condition.” Id.

However, the record before us contains no evidence that the dangerous condition 

resulted from “a pattern of conduct, a recurring incident, or a general or continuing 

condition.” See Id. at 765. It is undisputed that the contractor’s construction work 

concluded in May 2018, and there is no evidence that Mr. Luc did any construction work 

after Mrs. Beasley’s second visit to the nail salon. Thus, Plaintiffs cannot establish 

constructive notice on this basis.
- 14 -

Accordingly, we affirm the trial court’s decision to summarily dismiss Plaintiffs’ 

complaint.

IN CONCLUSION

The judgment of the trial court is affirmed in all respects and costs of appeal are 

assessed against the appellants, Marquica L. Beasley and Trent Beasley.

________________________________

 FRANK G. CLEMENT, JR., P.J., M.S.