# FILED
November 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT NASHVILLE AMY TYLER, ) ) Plaintiff/Appellant, ) Williamson Circuit N o. 96361 ) VS. ) Appeal No . 01A01-9711-CV- 00661 ) LARRY MORGAN, d

/b/a LARRY ) MORGAN CONST. COMPANY, ) UNITED CITIES GA

S CO., ROGER P. ) DYE, d/b/a ROGER DYE CONST. ) CO. , MU RRAY T ATUM, QUAD ) STATES, INC., ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF WILLIAM SON COUNTY AT FRANKLIN, TENNESSEE THE HONORABLE CORNELIA A.CLARK, JUDGE WILLIAM B. B RADLEY BARRY GA

RDNER Brentwood, Tennessee Attorneys for Appellant DOUGLAS FISH ER HOWELL & FISHER, PLLC Nashville, Tennessee Attorney for Appellees Larr y Morgan d/b/a Larry Morgan C

onst. Co. And United Cities Gas Co. JAMES D. KAY, JR. BRIDGETT A. WOHLPART Nashville, Tennessee Attorne ys for App ellee Roge r P. Dye d/b/a Roger P. Dye C

onst. Co. KENT E. KRA USE SHARON E. ENGLAND BREWER, KRAUSE & BROOKS Nashville, Tennessee Attorneys for Appellees M urray Tatum and Quad States, Inc. AFFIRMED ALAN E. HIGHERS, J. W. FRANK CRAWFORD, P.J., W.S. - DISSENTS DAVID R. FARMER, J. - CONCU RS2

In this person al injury

action, Pla intiff Amy

Tyler appeals the trial

court’s final order entering summary judgment in favor of the Defendants/Appellees and di smissing Tyler’s complaint. For the reasons hereinafter stated, we affirm the tr ial court’s judgment.

At about 9:00 on the evening of May 27,1995, Tyler was walking down a sidewalk at the Southwind A partments in Franklin w hen she tripped and fell, breaki ng both of her arms. After her

fall, Tyler discover

ed that she had tripped over a strin g which had been stretched across the sidewalk.E ar lier that day, Defendants M urray Tatum and Quad States, Inc., had poured a new sidewalk on the portio n of the si dewalk where Tyler fell. Although the newly-poured concrete was dry, t he wooden forms that Tatum and his workers used to pour the concrete were still in place. The strin g was a ttached to two wooden stakes which made up part of the forms.

As a result of her injuries, Tyler filed this lawsuit against the following par ties : (1) United Cities Gas Company, which had contracted to have a natur al gas line

installed under the sidewalk; (2) Lar

ry Morgan, the contr

actor responsible for insta llation of the gas line; (3) Roger P. Dye, Morgan’s subcontractor who actually performed the installation of the gas line; (4) Murr

ay Tatum, Dye’s subcontr actor who poured the new sidewalk after the gas line was installed;and (5) Quad States, Inc., Tatum’s employer. Tyler al so sued Southwind Limited Partnership, the ow ner of the apartment complex; however, she later agreed to dismiss Southwind from this lawsuit. The remaini ng Defendant s moved for summary judgment, and the tri al court granted their motions. This appeal followed.

We begin our analysis with the well-es tablished rule t hat “the party seeking summary judgment ha s the burden of demonstrating to the c ourt that there are no disputed, material facts creating a genuine issue for trial.” Byrd v. Hall , 847 S.W.2d 208, 215 (Tenn. 1993). Once the party seeking summary judg ment makes a properly suppor ted motion, the burden shifts to the nonmoving party to present evidence or to point to specific evidence in the record demonstrating the existence of a disputed material fact which needs to be resolved by the t rier of fact. Id . In evaluating a motion for summary judgment, the3

court is required to vi ew the evidence in the l ight most fa vorable to the nonmoving party and to draw

all reasonable inferences from the evidence in the non moving party’s favor. Id

.

A disputed fac t is material if p roof thereof would nega te or establish an essential element of the plain tiff’s claim. McCarley v. W est Quali ty Food Se rv. , 960 S.W.2d 585, 588 (Tenn. 1998). In the present cas e, in order to recover

from the Defendants for injuries caused by the alleged dangerous or defe ctive condition, Tyler was required to establish either (1) that the Defendants created the condition or ( 2) that the Defendants had actual
or constructive notice of the condition prior to Tyl er’s injury. Hardesty v. Service Merchandise Co. , 953 S.W.2d 678, 682 (Tenn. App. 1997). Accordingly, in the summary judgmentproceedings below, the parties focused on evidence that tended to support o r negate Tyler’s claim that the Defendants were responsibl e for placing the string across the sidewalk.

In moving for summary judg ment, the Defendants relied on the follo wing evidence. Murray Tatum, the vice president of Quad Stat es, testi fied in his deposition that he and Roger Dye entered into a ver bal contract for Tatum andother Quad States employees to pour the sidewalk. The employ ees poured the concrete for t he sidewalk between 12: 00 noon and 1:00 p.m. on Friday, M ay 27, 1995. By 2:30 or 3:00 p.m., when Tatum left the job site for the weekend, the employees had finished pouring and “broomi ng” the concrete. Tatum testified t hat, by 3:30 or 4:30 p.m., the concrete w ould have been dry enough to walk on.

Tatum f urther testi fied that, when he left the job site, no one had placed a string
across the sidewalk. Tatum had been in the concrete business for over forty

years, but he
never had placed a string acr oss the sidewalk in th e manner alleged by Tyler, he never had instructed any of his w orke rs to place a string a cross the sidewalk, and he never had observed any of his workers doing so. Tatum testifiedthat, in any event, the string depicted in the photographs presented by Tyler was not the ty

pe of string Tatum used in his work.4

The string in the

photographs appearedto be brown twine, but Tatum used only white or fluorescent nylon string

.

Willie Whitsett, Quad Sta tes’ foreman, corroborat ed Tatum’ s testimony. In an affidavit, Whitsett stated that he and four to six workers formed, poured, and finished the section of the sidewalk on a Fri day in May 1995. Whitsett and hi s workers poured the concrete between 12:00 noon and 1 :00 p.m., a nd they then “broomed” the concrete. Neither Whitsett nor anyone in hi s crew pl aced a string across the sidewalk. When Whitsett and his workers left th e job site later that afternoon, the concretewas dry enough to walk on and there w as no string on either end of the newly-poured si dewalk.

In opposing the Defendants’ motions for summ ary ju dgmen t, Tyler relied on the deposition of her uncle, Kenneth Bruce Bearden,and the affidavit of a neighbor, F rank Schmell. Frank Schmell noticed the string stretch ed acr oss the si dewalk on F riday, May 27, 1995. As for the time frame in w hich Schmell observed the string, Schmell stated onlythat he notic

ed the strin g “after the concrete w

as poured” a nd “during the daytime hours.” Schmell’s affidavit did not state whether any w orkers were present when h e observed the string, nor did the affidavit mention even o bserving any workers pres ent on the day in question.

Kenneth Bruce Bearden did not observ e the s tring st retched across the sidewalk until after Tyler fell. Bearden, who also had worked in the concrete business for a number of years, tes

tified that the string appeared to hav e dried conc rete on it as if it was the same string used by the workers to setthe wooden forms for the sidewalk in place. Earlier that day, Bearden had a conversation with the workers right after they finished pouring the sidewalk. Bearden estimated that the conv ersation took place at about 5:00 or 5:30 p.m. During theirconversation, Bearden warned the workers that they had “better barricade this up good because, . . . people tr avel this walk.” According to Bearden, the workers assured him that they would put up a barricade.5

In light of t his conversation, Bearden assumed that the workers were responsible forplacing thestring across the sidewalk. Bearden, however, had no persona l knowledge
as to who placed the string across the sidewalk. Bearden did not witness anyof the workers place the string acr oss the s idewalk, nor did he obser ve any string st retched
across the sidewalk whil e he was c onversing with the workers. When Bearden left the workers, the stakes w

ere in place but there w as no string across th e sidewalk.

After carefully reviewing the foregoing evidence, we affirm the trial court’s orders of summary judgment entere d in fav or of the Defendants. The Defe ndants fil ed properly supported motions for summary judgment in which they affirmatively negated an essential element of Tyler’s claim. Both Murray Tatum and Willie Whitsett stated under oath that neither they

nor any other Quad States empl oyee placed the string across the section of the sidewalk where Ty

ler fell. In order for

her claim to surviv

e the Defendants’ motions for summary judgment, therefore, Tyler was required to pre sent or point t o eviden ce which, if proven, would establ ish that one of th e Defendan ts was responsible for creating the dangerou s conditi on which ca used her injury.

We conclude that Tyler’s proof fails on this issue. Based on his conversati on with the Quad States workers, Ke nneth Bruc e Be arden assumed that the workers were responsible for placing the string across the sidewalk. Neither Bearden nor Frank Schmell, however, attested to any personal knowl edge that would implica te any ofthe Defendants in placing the string

across the sidewalk. Bearden did not see any of the workers place the string across th e sidewalk , and when he left t he workers that day, there wa s no str ing
across the sidewalk. Although Frank Sc hmell observed the string across the sidewalk sometime

“during the daytime

hours,” he likewis

e did not see any

of the workers place the string across the sidewalk, nor did he observe the string in place while any of the workers were still present.

We recogniz e that a defendant’s creation or know ledge of a dangerous conditio n maybe proven by either di rect or circumstantial evidence. Martin v. Washmaster Auto Ctr. ,6

946 S.W.2d 314, 317 (Tenn. App. 1996); Keene v. Cracker Barrel Old Country Store, Inc. , 853 S.W.2d 501, 504 (Tenn. App. 1992); Benson v. H.G. Hill Stores, Inc. , 699 S.W.2d 560, 563 (Tenn. App. 1985). In the absence of pr oof as to when and how a dange rous condition came about, however, the c ourts may not permit the jury to speculate on

these vital elements. Hardesty v. Service Merc

handise Co. , 953 S.W.2d 678, 683 (Tenn. App. 1997); Ogle v. Winn-Dixie Greenville, Inc. , 919 S.W.2d 45, 47 (Tenn. App. 1995). As this court previously stated,

[A] case will not be submitted to a jury upon mere speculation. “A case doe s not have to be submitted to a jury where there is a mere spark or glimmer of ev idence. There mu st be some evidence of a material and su bsta ntial nature.” Sadek v. Nashville Recycling Co. , 751 S.W.2d 428, 43 1 ( Tenn. App. 1988). Jones v. Golden , No. 03A01-9108-CV-00269, 1991 WL 238275, at *2 (Tenn. App. Nov. 18, 1991).

Based on the evidence presented i n this case, a jury c ould infer that somebody placed the string across the sidewalk sometime between 5:30 p.m. and sunset . Bearden stated that the st ring wa s not in place when he left th e workers at about 5:30 p.m.,but Schmell’s affidavit revealed that he obs erved the string someti me “during the daytime hours.” Moreover, because of the presence of dried concrete on the string, the jury could infer that the string came from the c onstruction site itself or, at the very least, fromanother site where concrete had been poured. Nevertheless, we do not v iew this evidence as being of a material and substanti al nature because, without more, the evidence requi res the jury to speculate as t o who placed the string across the sidewalk and as to when this dangerouscondition was created. Accordingly, we hold that the trial court properly granted the Defendants’ motions for summary judgment.

In urging this court to reverse the trial court’s summary judgments, Tyler arg ues that, regardless of who placed the string across the sidewalk,the Defendants were n eg ligent in failing toplace a barricade or warning sign at the construction site to protect the public. We conclude that this argument is without merit. The evidence presented below indicated that the newly-poured si dewalk did not constitut e a dangerous conditionfor the public. It7

was undisputed that, at the time Whitsett and h is work ers left the construction si te, the concrete was dry enough to w alk on and, thus, no barricade w as needed t o keep pedestriansoff of the sidewalk. Although Bearden discussed the need for a barri cade with the workers, his testi mony did not contradict W hi tsett’s assertion that the concrete had dried sufficiently by the time Whitsett an d the other workers left to render the use of a barricadeunnecessary. Bearden tal ked to the workers after they had finished pouring the concret e, but he did not testify regardi ng the degree to whic h the concrete had dried. Other than the string stretch ed across the sidewalk, therefore, t h e record contains no evidence that the newly-poured sidewalk presented a dangerous condition for pedestrians. Absent evidence that the Defendants either creat ed or knew about the string stretc hed across the sidewalk, Tyler’s claims of negligence must fail.

Cit in g language in the contract between United Cities Gas Company and Larry Morgan, Tyler alternativel y argues that this co ntract imposed a duty upon the Defendants to inspect the construction s ite and to ensure thepublic’s safety by er ecting barricades and taking other safety precautions. Inasmuch as Tyler h as fa iled to allege that she was a third-party beneficiary of the contract between the Gas Company and Morgan, however,
we reject the argument that thi s contractual duty ex tended to Tyler. Speaker v. Cates Co. , 879 S. W .2d 811, 816 (Tenn. 1994); United Am. Bank v. Gardner, 706 S.W.2d 639, 642 (Tenn. App. 1985). We likewise reject Ty ler’s contention that the con str uct ion of the sidewalk was inherently dangerous work such as to impose an abso lute, non delegable duty on any of the parties in this case to ensure the safety of the s ite. Marshalls of Nashvil le, Tennessee, Inc. v. Harding Mall Assocs. , 799 S.W .2d 239, 243-44 (Tenn. App. 1990). Simpson v. Allied Van Lines, Inc. , 612 S.W.2d 172, 17 4-75 (Tenn. App. 1980).

Defendants Tatum and Quad States also have raised an issue on appe al, contending that the trial court erred in denying their motion for discretionary cost s. The award of discretionary costs is governed by rule 54.04(2) of the Tennessee Rules of Civil Procedure. Pursuant to t h is rule, costs not incl uded in the bill of costs, i.e. discretionary costs, “are allowable only in the court’s discretion.” See T.R.C.P. 54.04(2). This court will8

not interfere with an awa rd or denial of discretionar y costs except upon an affirmativ e showing that the trial court abused its discretion. Perdue v. Green Branch Mining Co. , 837 S.W.2d 56, 60 (Tenn. 1992); In re McCoy , No. 03A01-9604-CH-00143, 1996 WL 599703, at *7 (Tenn. App. Oct. 21, 1996), perm. app. denied (Tenn . Apr. 7, 1997); Ashford v. Benjamin , No . 0 2A01 -9 31 1- CV -0 02 43 , 1 99 4 WL 677607, at *2 (Tenn. App. Dec. 6, 1994); Faux v. Spears , No. 03A01-9312-CV-00433, 1994 WL 147830, a t *2 (Tenn. App. Apr. 26, 1994).

Generall y, trial courts awar d such costs to whichev er party ultimately

prevails in the lawsuit, provided the prevail ing party has filed a timely, properly s upported motion. Turner v. Turner , No. 01A01-9506-CV-00255, 1997 WL 1364 48, at *17 (Tenn. App. Mar. 27, 1997); Austin Powder C o. v. Thompson , N o. 03A0 1- 96 07 -CV- 00 22 9, 19 96 WL 718291, at *2 (Tenn. App. Dec. 16, 1996); Dent v. Holt , No. 01A01-9302-CV-00072, 1994 WL 440916, at *3 (Tenn. A pp. Aug. 17, 1994), modified on other grounds , 1 99 4 WL 503891 (Tenn. App. Sept. 16, 1994); Harmon v. Shell , No. 01A01-9211-CH-00451, 1994 WL 148663, at *7 (Tenn. App. Apr. 27, 1994) . The successful party, how ever, is not automatically entitled to an award of costs. See Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d 630, 644 (Tenn. App. 1993); Faux v. Spears , 1 994 WL 147830, at *2; Webber v. Bolling , 1989 WL 151496, at *4 (Tenn. App. Dec. 13, 1989). Instead, tri al courts
are free to apportion costs between the litigants as the equities of each case demand

. Perdue v. Green Branch Mini ng Co. , 837 S.W.2d at 60; In re Mc Coy , 1996 WL 599703, at *7; Christian v. Hardi ng , 1993 WL 156 164, at *1 ( Tenn. App. May 14, 1993). Accordin gly, if any equitable basis appears in the record which will support the trial court’s apportionment

of costs, this court must affirm. See, e.g. , Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d at 644 (holding that trial cou rt did not abuse its discretion in failing to award costs

to successful plaintiffs, in li ght oflarge amount of jury verdicts in plaintiffs’ favor); cf

. Dent v. Holt , 1994 WL 440916, at *3 (holding that trial c ourt abused its discreti on in denying prevaili ng party’s motion for discr etionary costs wher

e no basis for such denial appeared in record). On appeal, the appellant bears the burden of showing that the trial9

court abused its discretion in its assessment of costs. Faux v. Spears , 1994 WL 147830, at *2.
Applying the foregoing standard, we affirm the trial court’s decision to deny Tatum’s and Quad States’ motion for discreti onary costs. After conducting a hearing on the motion for discretionary cost

s, a transcript of whic

h does not appear in theappellate record, the trial court denied the motion. In support of its denial, the trial court reasoned that this case
was disposed of by

summary judgment relatively early in the life of the lawsuit and, further, that Defendants Tatum and Quad States were better able to afford the discretionary costs than Tyler. Under these circumstances,Tatum and Quad States have failed to meet their burden of showing that the tria l court abused its discretion in denying

their motion for costs.

The judgment of the trial court is hereby affirmed. Costs of thi s ap peal are taxed to the Pla intiff , for which execution may issue i f necess ary.

HIGHERS, J.

CRAWFORD, P.J., W.S. - Dissents

FARMER, J. - Concurs