1 Rule 10 (Rules of the Court of Appeals of Tennessee). -- ( b) Memor

andum Opinio n. The Court, with the concurrence of all judge s participating in the case, may affirm, reverse or modify the actions of the tria l court by memorandum opinion when a formal opinion would have no precedential value. When a case is decide d by memorandum opinion it shall be designa ted “MEMORANDUM OPINI ON,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED Dec. 2, 1996 Cecil Crowson, Jr . Appellate Court Clerk

IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON DEBBIE VANCLEAVE, ) From the Circuit Court ) for Madison County, Tennesse e ) Plaintiff/Appellant, ) The Honorable Whit LaFon, Judge ) vs. ) ) Madison County Circuit No. C-94-210 MATTHEW MARKOWSKI AND ) Appeal No. 02A01-9602-CV-00035 DIANE MARKOWSKI, ) ) AFFI RMED Defendants

/Appellee s. ) Russell E. Reviere ) Bradford D. Box ) Jackson, Tennessee ) Defendant/Appellee ) ) James H. Bradberry ) Dresden, Tennessee ) Attorney for Plaintiff/Appe llant
MEMORAN

DUM OP

INION 1

This matter appears appropriate for consideration pursuant to Rule 10(b) of the Rules of the Court of Appeals of Tennessee. The plaintiff

/appella nt in this ca

use, Deb bie VanCl eave (“ VanClea ve”), a ppeals the trial court’s grant of summary judgment in favor of Defendants/App elle es, Matthew and Diane Markows ki. On October 3, 1993, VanCleav e was a guest at the Markowski house. Diane Markowski and VanCleave went into the Markowski’s back y ard to the deck a rea around the swimming pool. They wa lked on the deck and looked at the landscaping in the ba ck yard. The deck area

near the pool normally contained a skimmer used to clean the pool. During the fall and winter the pool was covered a nd the s kimmer removed, leaving an opening approxima

tely 18 inches wide and

3 feet lo ng. As V anCleav e walke d behind Ma rkowski, VanCleave fell a nd her right k nee wen t int o the o penin g, resulting in injuries to her left ankle. She later filed a lawsui t a ga in st th e M ar ko ws ki s, al le gi ng ne gl ig en ce an d s ee ki ng co mp en sa to ry damages
.2

After discover y, t h e Markowskis filed a

motion for

summary

judgmen t, argu in g that the opening in the deck was open and obvious and that VanCleave had admitted this in her deposition. The tria l court fo und that:

. . . [T]he plaintiff was injured on an openin g in the d eck whic h was cle arly

visible and not concealed and that any one walking on the p remise s should ha ve been able to observ e it. Consequently, the trial court e ntered summary judg

ment in favor of the Markowskis. Our review o f the tria

l court’sorder g

ranting summary judgmen t is de no vo on the record before this Court, with no pre su mption of correctness. Carv ell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). From

our examination of the record, it appears that the opening on w hich the plaintiff
was injured was “clearly

visible and not concealed,” and th at the trial court appropriately entered summary judgmen t in favor of the Ma

rkowskis. The trial court’s order

granting summary

judgment to Appellees is hereby affirmed. Costs
ar e t ax ed to Ap pe ll an t, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

HOLLY KIRBY LILLARD, J.
CONCUR:

W. FRAN K CRAWF ORD, P. J., W.S.

ALAN E. HIGHERS, J.