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IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 3, 2018

BELINDA PULLER EX REL. DAREL PULLER v. JUDITH RONEY

Appeal from the Circuit Court for Warren County

No. 16CV516 Larry B. Stanley, Jr., Judge

No. M2018-01234-COA-R3-CV

Defendant Judith Roney hired Darel Puller as a handyman to do periodic odd jobs in 

maintaining her house. Mr. Puller died in an accident when he fell from defendant’s roof 

while clearing it of debris. No one witnessed the accident. A housekeeper found him 

unconscious on a patio, with an extension ladder lying on the ground next to him. 

Defendant testified that she had not spoken to Mr. Puller the day of the accident, and that 

she did not know he was going to get her ladder from a back garage and use it to get on 

the roof. She also said that the ladder was probably at least forty years old and that it was 

missing one of the extension latching hooks. Mr. Puller’s widow, Belinda Puller, brought 

this action alleging defendant was negligent in failing to warn him of the defective 

condition of the ladder. Defendant moved for summary judgment, which was granted by 

the trial court on the ground that “the Plaintiff is unable to establish in any way, the cause 

of the injury to the Plaintiff or the relation of the Defendant to the Plaintiff’s injury.” We 

affirm. 

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which and RICHARD H.

DINKINS and KENNY ARMSTRONG, JJ., joined. 

Aubrey L. Harper, Chattanooga, Tennessee, for the appellant, Belinda Puller ex rel. Darel 

Puller.

Steven A. Dix, Murfreesboro, Tennessee, for the appellee, Judith Roney.

02/13/2019
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OPINION

I.

Mr. Puller did a variety of periodic handyman jobs for defendant, starting in 2008. 

He did painting, repairs, electrical, plumbing, and masonry work for her during that time. 

Once a year, Mr. Puller would get on the roof, clear it of debris, and check the shingles to 

see if any needed replacement. Both defendant and plaintiff testified that prior to the day 

of the accident, Mr. Puller always brought his own tools with him and used them in his 

work. 

The accident occurred on June 8, 2015. Mr. Puller arrived at defendant’s house to 

perform two tasks that morning ‒ to hang several doors that he had painted, and to fix a 

leaky faucet. Plaintiff called him on his cell phone at around 1:30 pm. He told her that 

he was on a roof cleaning the gutters and blowing it off. Shortly thereafter, housekeeper 

Linda Fults found him lying on the patio unconscious apparently from a head injury. The 

ladder and a gas-powered backpack leaf blower were on the ground next to him. 

Paramedics arrived shortly after 2:00 pm and took him to the hospital. He later died from 

his injury. 

Defendant testified that she kept a list of jobs that needed to be done when Mr. 

Puller had the time to do them. On the handwritten list, which had Mr. Puller’s name at 

the top, were nine items, two of which had been scratched off. One of the items that was 

not marked through was “check roof remove debris.” Defendant stated that on the day of 

the accident, Mr. Puller was there to hang the doors and fix the faucet. She did not know 

he was going to take it upon himself to blow off the roof, nor that he was going to use her 

ladder and leaf blower. She was at home at the time, but on the other side of the house, 

so that she could not hear the leaf blower. Her first indication that he had been on the 

roof was when the housekeepers told her he had fallen. 

Defendant testified as follows in pertinent part regarding the ladder:

Q: Did you have knowledge from anybody that that ladder 

could be defective?

A: I knew that there was one of those hooks . . . was off of it.

Q: Okay. So you didn’t consider that to be a defect in the 

ladder?

A: It was not a problem for me, because I’m not very heavy.
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Q: Okay.

A: I have no problem with being able to use the ladder.

* * *

Q: How long have you owned that ladder?

A: I’m not going to know that for sure, but it would have 

been after buying a two-story house, which would have been 

in 1972, I bought the house. So probably within that year I 

bought the ladder, because I needed the extra length.

Q: So it would be safe to say the ladder was probably over 40 

years?

A: Probably. I would say I bought it somewhere around 1973.

Q: Okay. When did you first become aware that one of the 

latching hooks was broken?

A: couple of years maybe.

Q: A couple of years before this incident?

A: Yeah.

Q: Okay. Had Mr. Puller ‒ well, let me back up. Is it true that 

Mr. Puller normally brought his own ladders?

A: Yes. That’s correct.

Q: Okay. But if I understand, your testimony is that on this 

particular day he didn’t bring his own ladders. 

A: I don’t believe he did.
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Q: And that he went to your garage and got this ladder 

without your knowledge?

A: That’s correct.

Plaintiff filed suit alleging negligence in furnishing the ladder and failing to warn 

Mr. Puller of its defective condition. She argued that the legal principle of res ipsa 

loquitur, “the thing speaks for itself,” was applicable to establish an inference of 

negligence. Following discovery, defendant moved for summary judgment, arguing that 

“the Plaintiff is unable to establish any critical facts necessary to prevail, including [the] 

mechanism of the Deceased’s fall, the essential element of causation, nor can it be shown 

that the Defendant’s conduct caused Mr. Puller’s injuries.” The proof presented to the 

court in the record consists of excerpts from plaintiff’s and defendant’s depositions, two 

brief affidavits from the housekeepers, a copy of the aforementioned list, and the 

narrative written by the emergency medical technicians who responded to defendant’s 

911 call. The trial court, in a brief one-page order, ruled as follows:

No person, expert or otherwise is able to opine as to how [Mr. 

Puller] sustained the injury while at the home of the 

Defendant.

No one was in [Mr. Puller’s] presence when the injury 

occurred.

Therefore, the Plaintiff is unable to establish in any way, the 

cause of the injury to the Plaintiff or the relation of the 

Defendant to the Plaintiff’s injury. The Defendant’s Motion 

for Summary Judgment is sustained.

(Numbering in original omitted.) Plaintiff timely filed a notice of appeal. 

II.

Plaintiff raises eight issues on appeal, which we have condensed as follows:

1. Whether the doctrine of res ipsa loquitur is applicable 

under the facts of this case. 

2. Whether the trial court correctly granted summary 

judgment to defendant. 
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III.

Our standard of review of a grant of summary judgment is as stated by the 

Supreme Court:

Summary judgment is appropriate 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. We review a trial court’s ruling on a motion 

for summary judgment de novo, without a presumption of 

correctness.

* * *

[I]n Tennessee, as in the federal system, when 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. . . . 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.

Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 

2015) (italics in original). 

In making the determination of whether summary judgment was correctly granted,

[w]e must view all of the evidence in the light most favorable 

to the nonmoving party and resolve all factual inferences in 

the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 

271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5 

S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. 

of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed 

facts support only one conclusion, then the court’s summary 
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judgment will be upheld because the moving party was 

entitled to judgment as a matter of law. See White v. 

Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. 

Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). 

Weinert v. City of Sevierville, Tenn., No. E2018-00479-COA-R3-CV, 2019 WL 319892, 

at *4 (Tenn. Ct. App., filed Jan. 23, 2019) (quoting Wells Fargo Bank, N.A. v. Lockett, 

No. E2013-02186-COA-R3-CV, 2014 WL 1673745 at *2 (Tenn. Ct. App., filed Apr. 24, 

2014)).

IV.

A.

Plaintiff argues that the trial court erred in declining to apply the res ipsa loquitur 

doctrine in order to allow her action to survive summary judgment. The Supreme Court 

has recently reiterated and discussed at length the applicability of this doctrine in 

Tennessee, in pertinent part, stating as follows:

This evidentiary principle assists a plaintiff by furnishing 

circumstantial evidence of negligence when direct evidence 

may be lacking. . . .

When res ipsa loquitur applies, it allows, but does not require, 

the fact finder to infer negligence from the circumstances of 

the injury. The plaintiff, by relying on res ipsa loquitur to 

establish an inference of negligence, does not get a free pass 

on the burden of proof, nor does the burden of proof shift to 

the defendant. The plaintiff must submit evidence that 

establishes a rational basis for finding that the plaintiff’s 

injury was probably the result of the defendant’s negligence. 

The plaintiff need not eliminate all other possible causes but 

must show that the defendant’s negligence was more probable 

than any other cause. The trial court determines if the 

plaintiff has established a sufficient foundation for res ipsa 

loquitur to apply. 

To rely on res ipsa loquitur, a plaintiff must show that (a) the 

event that caused the injury is of a kind that ordinarily does 

not occur in the absence of negligence; (b) other responsible 

causes, including the conduct of the plaintiff and third 
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persons, are sufficiently eliminated by the evidence; and (c) 

the negligence is within the scope of the defendant’s duty to 

the plaintiff. Restatement (Second) of Torts § 328D(1); 

Provident Life, 396 S.W.2d at 355–56 (quoting Restatement 

(Second) of Torts § 328D); Burton, 129 S.W.3d at 524–25. 

The plaintiff may establish part (b) by showing that the 

specific cause for the event was under the defendant’s control 

or that the defendant was responsible for all reasonably 

probable causes to which the event can be attributed. 

Restatement (Second) of Torts § 328D(1)(b) cmt. g. The 

essential question is whether “the probable cause is one which 

the defendant was under a duty to the plaintiff to anticipate or 

guard against.” Id.

Jenkins v. Big City Remodeling, 515 S.W.3d 843, 848-49 (Tenn. 2017) (emphasis added; 

internal citations omitted). 

In this case, the precise cause of the injury is unknown because no one witnessed 

the accident. Plaintiff argues that it is a reasonable inference that the ladder was the 

instrumentality that caused it. Assuming arguendo that is true, plaintiff cannot show that 

the ladder was under the control of defendant at the pertinent time. Analyzing the proof 

in the light most favorable to plaintiff, the only reasonable inference is that Mr. Puller 

obtained the ladder and the leaf blower from defendant’s back garage. Defendant did not 

have control over the ladder when Mr. Puller placed it against the house, nor when he 

fell. Neither can plaintiff demonstrate that defendant was responsible for “other 

reasonably probable causes,” potentially including Mr. Puller’s own conduct. Id. at 849. 

Similarly, the circumstantial evidence in the record is inadequate to show that “other 

responsible causes, including the conduct of the plaintiff . . . , are sufficiently eliminated 

by the evidence.” Id. Thus, res ipsa loquitur does not apply. 

B.

As this Court has observed in Singletary v. Gatlinburlier, Inc., No. E2015-01621-

COA-R3-CV, 2016 WL 1644475, at *2 (Tenn. Ct. App., filed Apr. 25, 2016), another 

case wherein we rejected the applicability of the res ipsa doctrine,

To prevail on a premises liability claim based upon 

negligence, a plaintiff must establish: “(1) a duty of care 

owed by the defendant to the plaintiff; (2) conduct by the 

defendant that was below the standard of care, amounting to a 
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breach of a duty; (3) an injury or loss; (4) causation in fact; 

and (5) proximate causation.” 

(quoting Williams v. Linkscorp Tenn. Six, L.L.C., 212 S.W.3d 293, 296 (Tenn. Ct. App. 

2006). The Supreme Court in Jenkins provided the following guidance on the concept of 

causation and plaintiff’s burden to prove it:

Cause in fact refers to “the cause and effect relationship 

between the tortious conduct and the injury.” King v. 

Anderson Cnty., 419 S.W.3d 232, 246 (Tenn. 2013) (quoting 

Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993) 

(internal quotation marks omitted)). It is not enough for a 

plaintiff to show that a defendant’s conduct was a possible

cause of the injury; the defendant’s conduct must be shown to 

be the probable cause. Lindsey v. Miami Dev. Corp., 689 

S.W.2d 856, 861–62 (Tenn. 1985) (quoting Keeton, Prosser 

and Keeton on Torts § 41, at 269); see also Kilpatrick, 868 

S.W.2d at 601–02.

A defendant’s conduct is a cause in fact of a plaintiff’s injury 

if the injury would not have occurred but for the defendant’s 

conduct. King, 419 S.W.3d at 246 (quoting Kilpatrick, 868 

S.W.2d at 598). A plaintiff must prove that the negligence of 

the defendant more likely than not caused the injury. 

Kilpatrick, 868 S.W.2d at 598–99 (citing Lindsey, 689 

S.W.2d at 861). Cause in fact may be shown by direct or 

circumstantial evidence. See Law v. Louisville & Nashville 

R.R. Co., 179 Tenn. 687, 170 S.W.2d 360, 363 (1943) 

(Chambliss, J., concurring). Where proof of causation is 

made by circumstantial evidence, the evidence must be such 

that it tends to exclude any other cause; in other words, it 

must be proven to be more likely than not.

* * *

Proof of negligence is not a substitute for evidence of 

causation. King, 419 S.W.3d at 247 (“ ‘Proof of negligence 

without proof of causation is nothing.’ ” (quoting Doe v. 

Linder Constr. Co., 845 S.W.2d 173, 181 (Tenn. 1992))); 
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Kilpatrick, 868 S.W.2d at 599 (“Even when it is shown that 

the defendant breached a duty of care owed to the plaintiff, 

the plaintiff must still establish the requisite causal 

connection between the defendant’s conduct and the 

plaintiff’s injury.” (citing Doe, 845 S.W.2d at 181))[.]

Jenkins, 515 S.W.3d at 851-52. 

In the present case, there is no proof ‒ expert, pictorial, or otherwise ‒ in the 

record regarding the condition and position of the ladder at the time of the accident, other 

than defendant’s deposition testimony, quoted in full above. Defendant testified that it 

was a twelve-foot ladder. There is no proof in the record of the distance between the 

ground and the part of the roof the ladder would have been leaning against, other than the 

paramedic’s estimation that Mr. Puller “was working off of a ladder when he fell about 

15 feet onto a concrete and brick step.” Assuming that the ladder was defective in that it 

was missing a latching extension hook, there is no proof that either the assumed defect, or 

the ladder itself, was more probably than not the cause of the injury. It is not clear from 

the evidence whether the ladder was found in an extended position after the accident.

Our analysis is informed by this Court’s recent opinion in Epps v. Thompson, No. 

M2017-01818-COA-R3-CV, 2018 WL 1353589 (Tenn. Ct. App., filed Mar. 15, 2018), a 

case that is factually similar in many ways. In Epps, a handyman hired by the defendant 

to paint her house was injured in a fall from a folding ladder owned and furnished by the 

homeowner. Id. at *1. Mr. Epps survived the fall and “sued the landowner for damages, 

asserting the landowner was negligent for providing him with old ladders that were 

unsafe.” Id. He testified, “I don’t know if it was the devil or an act of God. The ladder 

just kicked out. It just kicked out . . . It just fell over.” Regarding the 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.”

Id. at *2 (brackets in original). The trial court granted summary judgment in the 

homeowner’s favor, holding that “the Plaintiff was not aware of why the ladder fell, and 

had no facts to show causation.” Id. at *3. 

On appeal, the Epps Court stated, in pertinent part, as follows:
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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 . . . [we] 

explain[ed,] “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.

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.
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Epps, 2018 WL 1353589 at *4-5. 

The obvious difference between Epps and the current action is that in the present 

case, no one is available to testify regarding the cause of the accident and injury. Here 

we must rely solely on circumstantial evidence. Unfortunately for plaintiff, like in Epps, 

the proof is insufficient to establish either the cause of the fall, or that, whatever it was, 

defendant’s conduct was substantially connected to the cause. The trial court therefore 

correctly granted summary judgment to defendant. 

V.

The trial court’s summary judgment in favor of defendant Judith Roney is 

affirmed. Costs on appeal are assessed to the appellant, Belinda Puller. This case is 

remanded to the trial court for collection of the costs assessed by that court.

_______________________________

CHARLES D. SUSANO, JR., JUDGE