1 Mic hel le Lynn Durh am w as the party who fel l a nd w as i nju red . Rob ert

Way ne Durha m’s claim for loss of consort ium is deriva tive of hers
. 2 Defendant W . Paul Arnold, individuall y and d/b/a Arnold Construction Company, was dismissed from the case with prejudice. 1 

# FILED June 3, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk 

# FILED June 3, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

_____________________________________________________________________________ MICHELLE LYNN DURHAM and Gibson Circuit No. 7089 husband R OBERT WAYNE DURHA M, C.A. No. 02A0 1-9502-CV-0

0033 Plaintif fs/Appellant

s, Hon. Dick Jerman, Jr., Judge

v. LUTHER WEBB and w ife, SUE WEBB, individually and d/b /a WEBB’S BRITISH PETROLEUM STATION and W. PAUL ARNOLD, individually and d/b /a ARNOLD CONSTRU CTION COMPANY, Defendan ts/App ellees. TIMOTHY L. WARNOCK and JOHN B. ENKEMA, Bass, B erry & Sims, Nashville, Att orneys for Plaint

iffs/App ellants. FLOYD S . FLIPPIN, Adams, Ryal & Flippin, Humboldt Atto rney for Defendant s/Appellees

Luther Webb and wife, Sue Webb, individuall y and d/b/a Webb’s Brit ish Petroleum Station. AFFIRMED Opinion Filed:

_____________________________________________________________________________ TOMLIN, Sr. J. Mic helle Lynn Durham and Robert W ayne Durham (“plain tiff s” or by name) 1 brought this suit in t

he Circuit Court

of Gibson, Count

y against Lut

her Webb an d wife Sue Webb , individu all y and d/b/a Webb’s British Petrole um Station (“defendants”), 2

seeking damages for defendant’s alleged negligence that caused pla int

if f Mi che lle Durham to fall in defendant’s parking lot, causing injuries
. The trial court grant

ed defendant’s

moti on fo r su mm ary j udg me nt, from which this appeal is taken. The sole issue presented is whether the trial court erred in grant ing def enda nt ’s mo ti on f

or s ummar y ju dgme nt

. We fi nd n o er

ror and aff irm.2

On the day

of the accident

in question, plaintif

f stopped at

defendant’s gas station in Trenton on her way to a do ctor’ s app ointm ent. P rior to plaintiff’s arrival in defendant’s parking lot, it had been raining fo r a short while. There was testimony

that it had eit

her stopped raining or was raining on lyslig ht ly at th e t ime of plaintiff’s

arrival. After

parking in fron t of

the do or t

o defenda nts’ c onvenie nce store, plaintiff entered for the purpose of buying a carton of milk. After making the purchase, she exited the st ore and walked down the sidewalk to the pay phone to call her husband . On her way b ack to th e ca r, she st ep pe d o ff

th e si dew

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

Plaintiff’s

complaint char

ged def

end ants w ith ne gl ige nce for f ail ure to exercise reasonable care in maintaining the ent rance and parking area of t heir place of busines

s. Spec ific al ly , pl ain tiffs conte nd th at def

end ants f

ail ed to pr op erly clean the parking lot of oil buildup, alleging that the o il had accumul ated in areas wher

e cars no rmally parked, cr eating a dangerous, slippery condition. As grounds for

its su mm ary j udg me nt, de fend ants contended that they could not be held liabl e inasmuch as they had no act ual or constru ctive noti ce of a danger ous or de fec tive c ond ition in the park ing lo t prio r to the acc ide nt. Defe nda nts

filed deposit

ions of plaintif fs, defe ndant

s, and t hree employee s o f def end ants in c onne ction with the summary judgment motion. Plaintiffs filed the affidavit of Faye Kin g, a fr equ ent c ustom er of def end ants, in re spon se to defendants’ motion.

Foll ow ing the hearing on the summary judgment mot ion, the t

rial court enter ed an orde r, which re ad in pert inent part as follows:

Plaintiffs shoul d be given si xty (60) days from September 7, 1994 , to fi le an Affidavi t from an expert witness to the effect that the parking lot area where this accident occurred on Jan uary 13, 1 992 was in an3 unr ea so na ble and dange rous condition on t

he date and time of t his accident
. If s

aid expert Affid avit is filed within sixty (60) days from September

7, 1994, t

he Court will consider the Af fid avit a nd m ake i ts decision on the Mo tio n f or Su mma ry

Ju dg men t. If

the Affidavit is not filed on o r before sixty (60) days from Sept ember 7, 1994, t

hen said Motio n for Summary

Judgment

will be grante d. (e mphasis added)
Following th e e xp ira ti on of th e sixt y (60 ) d ay pe rio d wi th ou t p la intif fs having filed an affidavit of

an exp ert addressing the a lleged unreasona ble and danger ous condition of the prop erty a t the time o f the accident, the t rial court entered an order granting defendant s’ summary judgment motion.

Before addressing the summary ju dgment is sue itself, we must deal with a secondaryissue raised by plaintiffs, who cont end that t

he above-quot

ed language establishes that the tria l court required them to pro duce an expert witness to t

estify t hat t he combination of oil and water in the parking lot created a dangerous cond ition. P laintiffs fu rther contend that expert testimony was not required on this subject in this sta te because such inform atio n is within the knowledge of ordinary people. Plaintiffs also cont end that

the trial court was in error in ruling that t

he affidavit of

Faye King, which plaintiffs submitted in response to defendants’ motio n fo r su mm ary judgment, was not an expert witness o n the sub jec t.

Defe nda nts

cont end tha t plaint

iffs’ cha ract

erizatio n of this port

ion of the t

rial court’s order is in error, and that the t hrust of t

he tr ial court ’s ruling was t

o prov ide plaintiffs with additional time ( sixt y(60) days) to att

empt to carry their burden of proof as to the e xiste nce of a dangero us or defe ctive condit ion in def

endant s’ parking lot on the day of the accident , and that

if such a c ondition exis ted, to estab lish that

defendant

s’ ha d a ct

ua l or co ns tru ct iv e n ot ic e o f t ha t co nd it io n. It is defendants’ characteriz ation of t

his order that

if plai ntiffs

did not avail themselves of this additional t

ime to present

such an expert, t

he court would grant summary4

judgment

to de fen da nts

. We a gree with defendants’ charact erization of

this order. Although the t rial court used the ter m “expe rt witnes

s,” we are of the opinion that the purpose of the order was to give plaintiffs an additional sixty (60) days t o offe r proof

as to the e xiste nce of a danger

ous condit

ion on de fendant

s’ parking lo t at the tim e of th is oc curren ce. P la intif fs’ conte ntion is w ithou t merit, which leaves us with the responsibility of considering the correct ness of the t

rial court ’s grant ing of s ummary judgment

to de fendant

s.

No presumption of correc tness att aches to decisions grant ing summary jud gme nts

because they

invo lve only

quest ions of law. Thus

, on appe al, we must make a fresh determinatio n concerning whether or not requirements o f T.R.C.P. 56 have been met. Cow den v. So vran Bank /Ce ntral Sou th , 816 S.W.2d 741, 744 (

Tenn. 1991).

It is appropriate for a trial court t o grant summary judgment where (1 ) there is no genuine issue as

to any mat

erial fact, and (2) the moving part y is entitl ed to judgment

as a ma tter of law. By rd v . H all , 847 S.W .2d 208, 210 (Tenn. 19 93). The moving party bears

the burden of demonstrating that no genuine issue of material of fact exists. Id. at 210. In Byrd , th e court stat ed:

Once it is sho wn by the moving party that there is no genuine is sue of mate r ial fact, t

he nonmoving party must then demonstrat e, by affi dav its

or discovery materials, that there is a genuin e, mat

erial 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 spe cif

ic f acts showing that

there is a g enuine issue of material fact for trial. ‘If he does not so respond, summaryjudgmen t . . . s ha ll be entered agains

t him.’

Id. at 211 (citat

ions omitted).

A party may also move for summary judgment demonstrat ing that the5

opposing party will not be ab le to prod uce suf fic ien t evid enc e at tri al to withstand a motion for

directed verdict. If, aft er a sufficient t

ime for discoveryhas elapsed, th e n on mov ing pa rt

y i s un ab le to dem ons trate that he or she can indee d do so, summary judgmen t is appropriate. Id. at 213 (citing Celotex Corp. v. Catre tt, 106 S. Ct. 2548, 2552 (1986)).

In taking our fresh l ook at the record to determin e wheth er th e evidence sup ports the a ction of t

he tr ial court , we must view th e evidence in th e light mos t favo rabl e to th e n on mov ing pa rt y a nd m ust

als o d ra w all r

ea so na ble inferences in the nonmoving party’s favor. Byrd , 847 S.W.2d at 210-11.

Under the law of this st

ate, t he owner or operato r o f a place of bus iness owe s cu stom ers

a du ty

to exercise reasonable car e to ke ep th e p rem ise s in a r ea so na bly safe and suit

able condit

ion, in cluding the dut y of removing or warning against a dangerous condition traceabl e to persons for whom the propr

ietor i s not responsibl e . . . . if the circumstanc es of ti me and pla ce a re suc h t ha t b y t he exe rci se o f r

ea so na ble care the proprietor should have become aware of such conditio n.

Simm ons v. Sears Roe buck & Co. , 713 S.W.2d 640, 641 (Tenn. 1986).
Although a proprieto r must maintain the premises of his st or e i n a re aso na ble and safe condition, he is no t an insurer of a customer’ s safety. B efore an owner or operator o f premises

ca n b e h eld li ab le for neg ligence in allowing a dangero us or defect ive condi tion to e xist, it must be sh own that t he condition ( 1) has been created by the owner, operator or his agent or, (2) if the conditio n was created by someone other than the own er or operator or his agen t, there must be actual or constructive notice on the part of the owner or operator t

hat the conditio n existed prior to t he ac cident. Jones v. Zayre, Inc. 600 S.W.2d 730, 732 (Tenn. App. 1980).6

If li abil ityis to be predicated on constructive know ledg e by a defendan t, the proof must show t he danger

ous or d efe ct

ive con dit

ion exi st ed f or s uch a len gt

h of ti me that the defendant knew, or in the exercise of o rdinary care should have known, of its existence. Id.

In reviewing this re cord, we fi nd that pl ainti ffs were unable to e stabl ish that plaintiff Michelle Durham actually fellon an oil s pot in the parking l ot. Pl ainti ff t esti fied in her deposi tion that atthe ti me she fell, she nev er sa w a n oi l spo t. She testifi ed thatshe and her husband sa w oil in the parking lotwhen they came back to inspe ct thelot a week after the a ccid ent.

In addi tion, two employees of defendants both testifi ed in the ir depos iti ons that they were unaware of

an oil s pillin the parking l ot at the time of the accident . Dorothy Slaugh ter, who was responsibl e for sweepi ng the p arking lot, s tated that s he had just fini shed sweep ing the park ing lot prior to plaintiff’s fall . Slaughter testifi ed thatthere was
no oil on th e park ing lot a t that tim e. Slau ghter te stifie d tha t when she does f ind oilon the pave m ent, she applies an absorbent materialon the spotto cle an it up. Melinda Turne r, who had w orked as a cashier for defen dant for s ix y ears , testifi ed thatshe had
nev er n otice d a b uild up o f oil o n th e pa rkin g lo t.

The only evide nce p laintiffs submitte d in res ponse to def endants’ motion for
su m m ary judg men t was the affidavitof Faye King, a frequent customer of defendan ts’ store . King stated thatshe had observed oil s pots i n defendant s’ parking l ot on undiscl osed prior o ccasio ns. H ow ever, K ing’s a ffidav it fails to co mply withT.R.C. P. 56.05, which requires that the aff ian t sta te that her testi mony is based on persona l knowledge. T.R.C.P. 56. 05. Moreover, King’ s affi davit doe s not cr eate a genui ne issue of materia l fact c oncerning de fendants ’ actual or cons tructive knowledge of the oi l spot at the lo cation wh ere pla intiff fell at the time of the a ccide nt.

From readin g this re cord in its entir ety, we are of theopinion that the re is no7

genuine issue of

materialfactas to whether there was oi l on the pavement on the dat e and t i me of the a ccide nt, and in the loc ation whereplaintiff fell . Even if

plaintiffs could have establ ishedthe exi stence of an oil s pot, t

here is no proof i n the rec ord creating a genuine issue of materia l fact

as to how long t he spot might havebeen ther e so as t o charge defendan t s with cons tructive notice of an oil spo t in the lo cation of plain tiff’s fall. Plaintiffs’ proof

does not measure up to the standards appli cable t o her as a nonmoving party based on the f

acts def endants presented i n support of t he i r mo tion for sum m ary judg m ent.
The jud gm ent of the trial court is i n all respects affi rmed. Costs i n this cause on appeal are taxed t o plaintiffs, f or which execution may issue i f necess ary.

______________________________________ TOMLIN, Sr. J.

______________________________________ CRAWFORD, P. J.

______________________________________ LILLARD, J.