1 

# FILED

Au gust 13, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION, AT NA SHVILLE

PATRIC IA KIREY CZYK a nd, ) JOHN KIREYC ZYK, ) ) Plaintiffs/

Appellants , ) ) vs. ) Appeal No. ) 01A01-9612-CV-00549 ) MF ATHLETIC CLUB, L.P., ) Williams on Circuit THE ATHLETIC CLUB OF MARYLAND ) FARMS, INC., and C LUN SPORTS ) INTERNATIONAL-NASHVILLE, INC., ) ) Defendants

/Appellee s. )



### O P I N I O N

This is a “slip and fall” case before the Court for r eview of the trial Court action sustaining a Motion f

or Summar

y Judg ement fil ed by

the Defe ndants.

The Appellants, Patricia E. Kirey czyk and her husba

nd, John Kireyczy

k, are members of the Athletic Club of Mary land Farms, a social and athletic club operate d by the Appellees. Plaintiffs were frequent visitors to the club which has var ious kinds of athletic equipment available for its members, including both indoor and outdoor swimming pools. There is a wooden deck located on the conc rete path between the outdoor pool and the concrete patio adjacent to the clubhouse.

On June 7, 1994, Patricia Kireyczy k visited the club with her daughter and her daughter’s girlfriend for

the girls to practice swimming at the indoor pool. Her da ughter asked to swim in the outdoor pool after swimming practice and Patricia K ireyczy k went with her daughter to the outdoor pool to test the water and see if it was warm enough for swimming. The water in the outdoor pool was too cold and Patricia Kirey czyk followed behind the

two girl s in retur

ning to th e clubhou se. As Pat

ricia Ki reyczy k walked across the wooden deck surface, her f oot slipped out from under her. She fell injuring herself.2 It is well at the outset to observe that few a reas of modern law are more fr ustrating to counsel, to the Trial Court and to the Appellate Court than “slip and fall.” The reported decisions are so fact-sensitive that a line of demarcation between proper disposition

by s ummary

judgeme nt, as oppo sed to tria

l by jury on the mer

its, is almo st im pe rc ep ti bl e. Th us , t he se ar ch fo r a “r ul e” is il lu so ry.

The respective genera

l duties and obligations of the parties, in this case, is not subject to dispute and is well stated by Justice Henry in McCormick v. Waters 594 S.W.2d 385, 387 (Tenn. 1980):

“Owner s and occupiers of land have

an oblig ation to exercise ordinary c are and diligence in maintaining their pr emises in a safe condition for invitees. Paradiso v. Kroger Co., 499 S.W.2d 78 (Tenn. App. 1973).Proprietors are under an affirma tive duty to protect invitees, among them business visitors, not only against dang ers of which they know but also ag ainst those

which wit

h reason able ca

re they might disc over. I

llinois Central Railroad Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213 (1937). On the other hand, possessor s of land a re not ins urers of

the safe ty of invitees. The proprietor will not be held liable if the danger ous or defect ive condi tion is obvio

us, reas onably

appare nt, or as w ell known

to the invitee as to the owner. Paradiso, supra; I llinois Central Railroad, Co., supra. This duty of the owner or occupier of the land arises from the position of control which this person in possession occupies; he is the person normally best a

ble to prevent any

harm to others. See Paradiso, supra. T his same p osition of s uperior knowledg e and co ntrol gi ves rise to the requ irement t hat the po ssessor o f land exe rcise or dinary or reas onable care to provide a reasonably safe place for the performa nce of work by employees. String er v. Cooper and Cooper Office Equipment, I nc., 486 S.W.2d 751 (Tenn. App.1972). The cor ollary to the owner or oc cupier' s duty to exercis e reaso nable care is the business invitee's equivalent duty to exercise reasonable care. O'Brien v. Smith Bros. Engine Rebuilders, I nc. 494 S.W.2d 787, 791 (Tenn. App. 1973); Gargaro v. Kr oger Grocery

and Baking Co., 22 Tenn. App. 70, 1 18 S.W.2d 561 (1938). We emphasize

that the te

rm reaso nable care is not susce

ptible of o ne defin

ition but mus t be give

n meaning

in relation to the circumstances. O'Br ien, supra at 791. Where either party

comes forward with material evidence that the other has acted with the lack of care necessary

under the circumstances, a jury question is crea

ted. It is also for the jury

to determine whether a plaintiff has failed to see and avoid a defect and thus has failed to meet the duty to exercis e reaso nable ca re. O' Brien, supra. A

court is e xpected to direct a verdict for the d efenda nt, howev er, whe

n the evid ence pr esented is clear, not conflicting, and where the only inferenc e a reasonable person exercising his own judgment, could make is that the defendant has not been negligent. O' Brien, supra; Stringer, supra.”3 SUMMARY JUDGEMENT STANDARDS AND BURDENS
Volumes have been written on various aspects of summary judgement. The two (2) inqui ries in thi s case a

re, firs t of all, w

hat is the s tandard

of revie w applica ble both to the trial courts and the appellate courts, and secondly , what is necessary for the moving party to sustain it’s burden. T.C.R.P. 56 parallels the federal rule and it has been aptly observed:
“The abandonment of fact pleading displaced the demurrer, the motion to dismiss, and various equivalents as a means to test the sufficie ncy of fact ual alleg ations. Th

e functi on of inte

rceptin g fact

ually insufficient claims is now assigned to the summary judgment. As the notes of the advisory c ommittee on Civil Rules state, ‘The ve ry mission of t

he summar

y ju dgment p

rocedur e is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for tria l.’ ”
Fo nt en ot v. Up Jo hn Co mp an y, 780 F.2d 1190, 1196 (5th Cir.)

Shortly after the a

doption of the Tennessee Rules of Civil Procedure, Justice Harbison for the Su

preme Cou

rt deline ated the

standar ds for sum

mary judgeme nt in language clear

and concise and this standard has never cha nged. “Summary judge

ment proceedings in this state were authorized for the first time by Rule 56 of

the Tennessee Rules of Civi l Procedu re. This new proc edure w as designed to fill a vacan cy or void wh

ich had e xisted in prior practice and to provide a procedur al step which had heretofore not existed. Under previous pra ctice, in both the c ircuit and chanc ery courts, there had been no satisfactory intermediate step between the demurrer, which dealt only with the conte nts of pleadings, and a full-scale trial of a case upo n the mer

its. The su

mmary judgmen t proced ure was designed to provide a quick, ine

xpensive me ans of co ncluding cases, in whole or

in part, upon issues as to which there is no dispute regarding the material facts. Where there does exist a dispute as to the facts which are deemed materia l by the trial court, ho wever, or wher

e there is uncer tainty as to whether there may

be such a dispute, the duty of the trial court is clear. He is to over rule any motion for

summary judgmen t in such c ases, be cause summary judgmen t procee dings ar

e not in an

y se nse to be v

iewed a s a substitute for a trial of disputed factual issues.” Evco Corp. v. Ross, 528 S.W.2d 20, 24-25.4 While Federal Rule 56 was adopted in 1938, it was for the next half century “. . . infrequently used. . . because it was plagued with ambiguities and re strictive interpretations.” By

rd v. Hal l 847 S.W.2d 208, 211 (Tenn. 1993).

In 1986, the United States Supreme Court decided Anderson , Celotex , and Matsushita , otherwise known as the “1986 trilogy ”.

Seven yea

rs later, after a number of intermediate Tennessee Appellate Court decisions had pointed the way , the Tennessee Supreme Court essentially adopted the “1986 trilogy”

. By

rd v. Hal l 847 S.W.2d 208 (Tenn. 1993).

The burd en of the moving pa

rty is best ar ticulate d by

Justice Br

ennan in h

is dissenting opinion in Celotex Corp v. Catret t477 U.S. 31 7, 91 L .Ed.2d 265 , 106 S.Ct. 2548. It should be noted, that it is somewhat misleading when the opinion of Justice Brennan is characterized as a dissenting opinion as it relates to the burden of the moving party. His dissent involves the ultimate disposition of remanding the case to the District of Columbia, Court of Appeals rather than to the trial court for trial on its merits. As far as it deals with the summary judg ement burden of the moving party , it reflects exactly the same position as is taken by Chief Justice Rehnquist writing for the ma jority in Celotex. “The burden of production imposed by Rule 56 requires the moving party to make

a prima facie showing that it is entitled to summary judgment. 10A Wright §2727. The manner in which this showing can be made depends upon which party will bear the burden of persuasion on the challenged claim at trial. I f the moving party

will bear the burden of persuas ion at tria

l, that pa rty must suppor

t its motion w ith cred

ible evidenc e--usin g any

of the ma

terials s pecifie d in Rule 56 (c)--t hat would entitle it to a directed verdict if not controverted at trial.. I bid. Such an affirmative showing shifts the burden of production to the party opposing the motion a

nd requir es that pa rty either to produce evidenti ary

materia ls that demonstrate the existence of a ‘genuine issue’ f or trial or to submit an affida vit reque sting ad

ditional ti me for dis covery . Ibid ,; Fed Rul es Civ Proc 56(e), (f). If the burden of pe

rsuasion at trial would be on the nonmoving party, th e party mo ving fo r summ ary judgme nt may sat isfy Rul e 56's burden of production in either of two way s, first, the moving party may submit affirmative evidence that negates a n essential element of the nonmoving

party ’s claim. Second, t

he moving

party may demonstr

ate to the cour t that the n onmoving

party ’s evide

nce is ins ufficie

nt to estab lish an essential element of the nonmoving party ’s claim. See 10A Wright5 §2727, pp 1 30-131; L

ouis, Fe deral Sum

mary Judgment D octrine : A Critical Analysis, 83 Yale L J 745, 750 (1974)(hereinafter Louis). I f the nonmoving

party cannot mu ster suff

icient ev idence t o make out

its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. Anderson v. L iberty L obby, I nc., ante, at 249, 91 L Ed 2d 202, 106 S Ct 2505. Where the moving party

adopts this second option and seeks summary judgme

nt on the ground that the nonmoving party --who will bear the burden of persuasion at trial--has no evidence , the mechanics of di sc ha rg in g R ul e 5 6' s b ur de n o f p ro du ct io n a re so me wh at tr ic ki er . P la in ly, a conclu sory

assertio n that the

nonmoving

party has no evidence i s insufficient. See ante, at 328. 91 l Ed 2d, at 277 (White, J., concurring). Such a ‘b urden’ o f produc tion is no bu rden at a ll and wou ld simply

permit summary judgme

nt procedure to be converted into a tool for hara ssment. See Louis 750-751. Rather, as the Court confir ms, a party who moves f

or summary judgme

nt on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. Ante. At 3 23, 91 l Ed 2 d, at 273. This may require the moving

party to depose the nonmoving party ’s witnesses or to establish the inadequacy of documentary e

vidence. If there

is literally no evidence

in the record, the moving party ma

y demonstrate this by

reviewing for the court the admissions, interrogatories, and other exchange s between the parties that are in the recor

d. Either way , howeve

r, the moving par

ty mu st affirmatively de

monstrate that there is no evidence in the record to support a judgment for the nonmoving party .”

91 L.Ed.2d 265, 278-279 (Bre nnan dissenting).

THE EVIDENCE The court must view the evidence in the light most favorable to the oppone nt of the motion for summary judg ement. Hay nes v. Ha milton Count

y 883 S.W.2d 606 (Tenn. 1994). All reasonable inferences fr om the evidence must be drawn in favor of the nonmoving party. Pittman v. UpJohn Company 890 S.W.2d 42 5 (Tenn. 1994). Th ere is no presumption of correctness to the trial courts findings in a summary judgement case. Carvell v . Bottoms 900 S.W.2d 23 (Tenn 19 95). I f any doubt or a

ny u ncerta inty exists with regard either to the facts or to the c onclusions to be drawn to the facts, the summary judgement order must be vacated and the c ase remanded for trial. By rd v. Hall 847 S.W.2d 211 and Evco v. Ro ss 528 S.W.2d 20. The record contains portions of the deposition of Patricia Kirey czyk in which she is asked many questions conc erning the accident and how it occur red. She testifies that she had walked across this same deck hundreds of times a nd had never noticed any

thing that made an impression on her. She did not perceive any thing to be hazardous. She further testified:6 “Q. Do you know what it was that made you fall? Was it the beads of water on the deck?
A. All I know is I

slid, felt myself sliding and we nt down the stairs. Q. So you don’t know if it was one leaf , two leaves or the water?
A. No. Mr. White: or a combination of the two? Witness: right.”
Immediately

prior to the hearing on the motion for summary judgement before the trial cou rt, Plaintiffs filed an affidavit of Patricia E. Kirey czyk . In thi s affida

vit, she sa ys i n part: “15. As I neared the f

ar side of the deck, approaching the steps which descend to the patio, suddenly , without warning, and without any realization of the reason, my foot slipped out from under me and I slid on the deck surface. Despera tely, I fought to regain my

balance; but I was unsuccessful, falling to the deck on my right hip, right hand, and right elbow. I slid down the steps to the bottom. At that time, I did not know what happened or why

I slipped and fell as I

did. If someone had asked me at that moment if Maryland Farms had done any thing wrong or whether they

could have prevented my fall, I would have said ‘no’. I t was not until la

ter I learne d the cau se of my

fall and the part played in my

fall by the Mary

land Farms Athletic Club. 16. After regaining my composure, I walked into the clubhouse . I was met in the clubhouse by Tre nt Heaton, the director of fitness, who was substituting for the manager on duty and who was dispatched by the club to investigate the accident. I spoke first with Mr. Heaton inside the club, out of sig ht of the d

eck. I n respons e to his inq

uiry what hap pened, I told him I f ell on the deck. Hi s exact wor

ds--whic h still ring

my e ars--w ere ‘it rained a nd there ’s leave s on the de ck. Huh?’ F rankly , at that p oint I

did not appreciate the import and significance of his statement to me.
17. Mr. Heaton and I, ac companied by Ty rone Harper, another employ ee of the club, wa lked out of

the clubhouse and

across t he patio t o the first step to the deck. From this position, I could see c learly the deck surface which was nea r eye level f

or me. Spon

taneousl y I said ‘yes’, to the pr

evious statement of Mr. Heaton; i.e., ‘it rained and there’s leaves on the deck’. I

could see beads of water on the deck’ s surface in the area where I

slipped. The beads of water appeared to me like the beads of water seen on the s urface of an aut omobile wh

ich had been waxed. I als o saw a very

light scattering of leaves on the dec k’s surface in the area wh er e I s li pp ed . I k ne w t he n w ha t c au se d m e t o f al l a nd wh y. 18. I had a second c onversation with Trent Heaton approximately one and a half wee

ks after my a ccident , when he

came in r esponse t o my repeated requests to speak with Cindy Flannigan, the club’s manag er. I ask Mr. Heaton why

Maryland Farms had not put up a sign warning that the deck surface is slippery when wet. He told me that the club had planned to repair the deck two (2) wee ks prior to my accide

nt and that he would look into changes to pre vent a n accid ent fr om reo ccurri ng.7 19. Cindy Flanniga

n, the club’s manager, confirmed that the D efendant had plann ed to rep aint the d

eck two w eeks pri or to my accide nt.

. . . 21. I ha

ve read the motion a

nd memora

ndum filed

by t he Defe ndants and reviewed my

deposition testimony. Either I misunderstood a series of questions asked me

by t he Defe ndants’ a ttorney or the De fendant s’ attorney misunderstood my answers. At the outset of my deposition I was asked a series of questions in the context, as I unde rstood the questions, of what I knew and/or ha

d observed before or at the time of my fall. For example, the question was asked, ‘what do y ou think made you fall?’. I ans wer ed, ‘I don’t know’. Another question, ‘. . .what could have been done by Mary

land Farms to have prevented y our fall?’. I responded ‘I don’t know.’. I answere d these questions and the others asked in the same con text as I thought I was aske d with the k

nowledg e I h ad at the

time of my fall. Af ter I spoke to Mr . Heaton

and hea rd his stat ement; i.e . ‘it rained and there’s leaves on the dec k’, and observed with him the water beads and the lea

ves on the

deck sur face, m y a nswers to the same questions are strikingly

different. For example, to the question ‘what do you think made y

ou fall?’ My answer is, ‘I slipped and fell because the deck surface was slippery with rain and wet leaves’. To the question ‘what could hav e been done by

Mary land Fa rms to hav e preve

nted my fall?’, my answer is, ‘the defendant could have prope rly and timely

maintained the deck by pre ssure washing and repainting the surf ace so as to eliminate the slippery condition; or they could have dried the wet surface a nd removed the wet leaves; or they

could have placed a sign nearby warning that the deck was slippery

when wet and/or they

could have roped off the deck, preventing persons from crossing the de ck when slippery ’.”
Section 21 of the affidavit of Mrs. Kirey czyk is almost inconceivable, but if, she indeed misunderstood questions on the deposition and the matters set forth in the other portions of her affidavit are taken as true, a s they must be under the summary judgement standard, then her credibility must be judged by the

trier of fact, not the trier of law. I f, Mr. Heaton made the statement attributed to him about rain and leaves on the deck and if, he told her that the club had planned to repair the deck two ( 2) weeks prior the her accident in order to prevent an acc ident, and if, this statement was reiterated by Cindy Flannigan, the club’s manag er, then a trier of fact could find that the De fendants had knowledge superior to that of the Plaintiff, that rain and leave s on the deck created a slippery condition that could result in the kind of injury suffered by

the Plaintiff.

When this evidence is coupled with the affidavit of Judy A llen, a member of the athletic club, familiar with deck, wherein she states that the dec k was slippery whe

n wet and especially

when there were leaves on top of the w et surface and that she had in fact8

slipped he

rself, a lthough s he had no t fallen, we have genuine issues o f materi al facts
regar ding ca usation, d anger

ous condit

ion and no tice. Thu s, summary judgeme nt is inappropriate. CONCLUSION This is a thin case for the Plaintiff and the differences be tween the deposition testimony of Patricia Kirey czyk and her a

ffidavit testimony are pe

rilously close to being such inconsistent statements as to render them probatively valueless. Price v. Becker 812 S.W. 2d 597. A

t this point, however , the ques tion is not w hether r easonab le minds will differ a fter he aring a

ll of the e vidence , but whet

her rea sonable m

inds could

differ on the facts in the present record. Burgess v. Harley

934 S.W.2d 58 (Tenn. App. 1996) was before this Court in a differe nt context, but involve d the same principle that prevents summa

ry judgeme nt in the case at bar. I

n Burgess this Court observed:
“Mr. Ha rley 's cre dibility

has been seriously undermined. We would not second-guess the trial court's decision to give his testimony no weight if this were an appeal from a bench tria l. This is, however, an appeal from a summary

judgmen t. Notwiths tanding

Mr. Harl ey 's practically insurmoun

table cr edibility problems , his diffe

rent ac counts of

the even ts immediate

ly b efore t

he collisi on give

rise to a g enuine f

actual d ispute concer ning the condition

of his bra

kes and th

eir eff ect on hisability

to avoid the acc ident . Reso lvin g these issu es now would requi re us t o weigh the evidence and to judge Mr. Harle y's c redibility - two things we c annot do in a summary judg ment proceeding.” Burgess v. Harley 934 S.W.2d 58, 67 (Tenn. App. 1996)

The Summ

ary Judgem

ent grant ed by the t

rial cour t is vacat ed, and the c

ase

reman ded for tri al on the fac ts.

___________________________

WILLIAM B . CAIN, JUDGE CONCUR:

_____________________________________ HENRY F. TODD, PRESIDIN G JUDG

E, MIDDLE SEC TION

_____________________________________ WILLIAM C. KOCH, JR., J UDGE