# FILED

September 23, 1998
Cecil W. Crowson Appellate Cou rt Clerk WILLIAM BAUMGARDN ER ) and wife, ) SUSAN BAUMGARDNER, ) ) Plaintiffs/Appell

ants, ) Appeal No.

) 01-A-01-9806-CV-00307
v. ) ) Rutherford Circui t ACD TRIDON NORTH AMERICA, ) No. 37471 INC., ) ) Defendant/Appellee. ) )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBERT E. CORLEW, III, JUDGE

GUY R. DOTSON, JR. 102 South Maple Street Murfreesboro, T

ennessee 37130 ATTORNEY FOR PLAINTIFFS/APPELLANTS

JOHN R. RUCKER, JR. 14 Public Square No

rth Murfreesboro, T

ennessee 37130 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

This is an appeal by pla

intiff from sum

mary jud gment rendered by the trial court in favor of the defendant in a personal injury case.

William Baumgardner and wife Susan Baumgardner are husband and wife plaintiffs i

n the case. ACD

Tridon North Am

erica, Inc. is

the defendant.

William Baumga rdner was, at the ti me of the ac cident in this case , a long time employee and route driver for UPS. His delivery route was in Smyrna, Tennessee and involved driving 80 to 100 miles a day andmaki ng 95 to 120 stops per day. He

also averaged about

15 pickups p er day . Among the customers on his r

oute for many y ears was the

defendant Tridon. He had been making pickups at Tridon for four or five years prior to the date of the accident in question.

The plaintiffs' c

omplaint assert

s: 4. Atall tim

es mentioned herein, Plaintiff, WILLIAM BA UMGARDNER was employ ed by United Parcel Service as a package deliveryman and duties included picking up and deliveri

ng packages to Defe

ndant.
5. On November 6 , 1995, Plaintiff, WILLIAM BAUMGARDNER was pi cking up packages fro m Defendan t as a business invitee by using Defendant's self propelled hand jack up and dow

n defendant's ram

p.
6. On the above date as Plaintiff, WIL LIA M BAUMGARDNER was tr avel[ l]ing down d efend ant's ramp withDefendant's self

propelled hand jac

k, Plainti ff , WILLIAM BAUMGARDNER lost control of the ha nd jack,
was knocked of[f] balance and did fall causing per sona l injury.

7. Itwas the duty of the Defendant to design, build, keep and maintain the

above described r

amp in a condition reasonably

safe for its intended uses and free from all defects and conditions which woul d render it dangerous

andunsafe for Plaintiff, WIL

LI AM BAUMGARDNER, or present an unreasonable

risk o f harm to him

in his lawful use of the ramp.-3- 8. It w as the duty of the Defendant to instr

uc t Pl aint iff, WILLIAM B AUMGARDNE R, on the proper use of the self propelle

d hand jack.
9. Defendant

was negligent in that

they failed to perform the above described duties andas a proximate result thereof, Plaintif

f , WILLIAM BAUMGARD NER was knocked off balance and fell and was injured

.

The Law

The Tennessee S upreme Court ha s said: Itis axiomatic tha

t three elemen

ts are necessary

for the existence of a cause of action for negligence; (1) a duty of
care owe d by the defendant to the p laintiff; (2) a br

each of tha tduty by the de

fendant; and (3) an i

njury to the pla

int if f which was proxim

ately caused by

the defendant's br

each of a duty. Lindsay v. Miami Dev. Corp. , 689 S.W.2d 856, 858 (Tenn. 1985).

No c lai m for negligenc

e can succeed in the

absence of: 1) duty, 2) breach of that duty, 3)

injury or loss,

4) causation in

fact, and 5) prom

ixate cause. McClenahan v. Cooley , 806 S.W.2d 767 (Tenn. 1991); Bradshaw v. Daniel , 854 S.W.2d 865 (Tenn. 1993).

In the context

of a negligence ac

tion against a landow

ner, the summary by Justice Henry two decades ago remains essentially viable. [1,2] Owners and occupi

ers of land have an ob

ligation to exercise ordinary care and diligence in maintaini ng their premises in a safe condition for invitees. Paradiso v. Kroger Co. , 499 S.W.2d 78 (Tenn.App.1973). Proprietors are under
an affirmative

duty to protect in

vitees, among t

hem business visitors, not only against dangers of which they know but also against those which w ith reaso nable care they m ight discover. IllinoisCentral Railroad Co. v. Nichols , 173 Tenn. 602, 118 S.W.2d 213 (1937). McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980).-4- The duty of the defe

ndant being thusse ttled, the next inquir y is as to whether or not there is any eviden ce in the record to establish a breach of that duty by the de

fendant.

Summary jud gment ha

ving been granted in the trial court to the defendant, this court, on appeal, must take the stronges t legitim ate view of the evidence in favor of the

appellant (

Downen v. AllState Ins. Co., 811 S.W.2d 523 (Tenn. 1991)), and

if reasonable m

inds might differ

or there isuncertainty as to whether or not reasonable m

inds might differ

as to materia

l facts ( Evco Corp. v. Ross , 528 S.W.2d 20, 25 (Tenn. 1975)), the court must then go further

and apply the same standards to the issues of injury, cause in fact, and proximate cause. If reasonable

minds could

differ on all of these elements, then a grant of summary judgment is im

proper and the case

must be rem

anded for trial on th

e merits.

In 1986, the United Sta

tes Supreme C

ourt decided Anderson, Celote x, and Matsushita, otherwise known as the "1986 Trilogy".

Seven years later, after a

number of intermedia

te Tennessee Appe

llate Courtdecisions had pointed th e way, the Tennessee Supr eme Court esse

ntially adopted the "1986 Trilogy". Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).

Justice Brennan, dissentin g on other grounds in Celotex b ut confirming the majority

on the treatme

nt of summa

ry judgme

nt correctly ob served: Where the moving party

adopts this second option and seeks summary

judgment on the

ground that the

nonmoving party--who

will bear the burden of persuasion at trial--has no evidence, the mechanics of discharging Rule 56' s burden of production

a r e somewhat trickier. Plainly, a conclusory assertion that the non moving party has no evidence is insufficient. See ante, at 328. 911 Ed 2d, at 277 (White, J., concurring). Such a 'burden' of production is no burden a t all and would simply

permit sum

mary jud gment procedur

e to be converted into a tool for haras sment. See L ouis 750 -75 1. Rather, as the Cou rt confirms, a party who m

oves for summary judgment proc

edure on the

grou nd that the nonmoving

party has no evide

nc e must affirmative

ly show the absence of evidence in the record. Ante. At 323, 911 Ed 2d, at 273. This may r

equire the moving party

to depose the nonmoving

party's witnesses or to establish the inadequacy-5- of inadequacy of documentary evidence. If there is liter ally
no evidence in the record, the movingparty may

demonstrate this by reviewing f

or the court the adm issi ons , interrogatories,

and other exchanges between the parties that
are in the record. Either way, however, the moving p arty must affirmatively demonstrate that there is no evidence in the reco rd to su pport a judgment for the nonmovi ng part y.
Celotex v. Catrett

, 91 L.Ed.2d 265,

279.

Breach of Duty

Th e rec ord before the cour t on summar

y judgment

consists of the
summary judg ment

motion and the dep

ositions of William

Baumgardner and Gary White , an employ

ee of the defendant

.

While credibility of witnesses is not an issue before this co urt, it is well
to take note of the candor and forthrightness of the plaintiff W illia m Baumgardner. Plaintiff, in his c omplaint, fir

st asserts a duty of the def endant to design, build, keep and m aintain the ramp in the condition reasonably safe for its intended uses and free from all defects and con

ditions w hich would render it dangerous and unsafe for the plaintiff or present an unreasonable ris

k to him in his lawful use of the ra mp.

This assertion is a correct stat ement of the duty of the de

fendant and plaintiff then asser

ts a breach of that d

uty by the def

endant.

Plaintiff offers noevid ence at all as to any defective, dange

rous, or unsafe condition of the

ramp. He testifies: Q. Describethis ramp that you used to load your truck o

r to drive the hand jack down so you could load your truck. A. I don't know what d

egree th e ramp is. It's a co

ncrete ramp. I guess it 's approxi mately forty feet l ong. Q. Is it a steep slope? A. I don't know, sir. I'm not an engin eer. I couldn't tell you. Q. Just

from a layman's standpoint, from your observations and the numerous times that you've used it, did you consider i t to b e steep? A. Gosh, I don't know. I guess it's fairly steep. Q. Was it

so steep that you

considered it to be

dangerously steep?-6- A. No, sir. Q. It's made of

concrete, is it no

t? A. I believe so. Q. Does it have any

safety fe atures on it? A. Not that I'm aware of. Q. Is it just a flat ramp? A. I believe it's primarily a flat ramp. It may have a curb of so many inches on each side. Q. Does it, in fact, have curbs on each side? A. I believe maybe -- two or three inches maybe. Q. Whatwas the condition of the ramp onthe night that you were using it as far as its surface condition? A. Other

tha n be ing w et, I don 't re cal l. It may have ha d gravelwhere the tow motors have come from the parking lot up t h e ramp. Q. It was rainin g that night, wa

s it not? A. Yes, sir. Q. So the ramp was we t? A. Yes, sir. Q. You knew t he ram p was w et whe n you we re usi ng it. Is that true? A. Yes, sir. Q. Do you recall whether the ramp had any grave l on it or not? A. I don't rec

all. Q. Do you reca

ll whether the ra

mp had any c

racks in it? A. I don't rec

all that. Q. Do you ever recall seeing any cracks in the ramp? A. No. Q. Did the ramp have any mud on i t since it w as raining? A. Not that I was aware of. Q. Right

at the end of the ramp, wh at is at th e end of the ramp as it goes ou

t into the parking

lot? A. A gravelled pa

rking lot. Q. Is it -- is there any grass or mud or dirt nearby the end of the ramp? A. Yes, sir. Q. Where is that located? A. It's just off to the side there. Of f to the side of the gravelled parking lot it's a grassy area. Q. If you're walking down the ramp, to your left would be the dock door; is tha

t correct? A. Correct. Q. And what is to y

our right? A. The grassy area. Q. A s you get down to the end of the ramp near the gr as s y area, is that worn out fro

m where pe ople have driven tow motors and other pieces of equipment there? A. It's just a g

ravelled lot. Q. Was there mud or rocks at the end of that ram p that night? A. There wererocks. I don't -- I couldn't tell you about mud. Q. Did you back your truck up to the end of the ramp? A. Yes, sir. Q. How close was your truck to the end of the ramp? A. It was probably fi

fteen, twenty

feet from the ramp in the parking area. Q. Would

you drive the hand

jack all the way

to your truck
or would your drive it to the end of the ramp and then carry the boxes-7- from the end of the ramp to your truck? A. I would leave enough space there where the pallet jack or the skid of package could sit close to the back of the truck. Q. On this particular ni ght, si nce it was raining, did you drive the pallet of boxes down to the end of the ramp, leave them there and then drive the hand jack back up the ramp? A. I took the first skid of packages down, loaded those onto my truck and then br

ought the emp ty skid back up the ramp and went to get the second skid. Q. Whileyou were l oading t he boxes off the skid, did you l eave the hand jack in the rain or did you drive it back up? A. It was in the rain. It was still sitting there. Q. Was it dark by the time you got to Tridon? A. Yes, sir. Q. Are there any lights out there? A. There are outsid

e lights. Q. Are there any lights in the ramp area? A. Not that I rec

all. Q. Was it well lit enoug h to where you c

ould see what you were doing? A. Ju st

pretty much from the light coming out of th e warehouse area where the door is, where the door was open. Q. You don't reca

ll any outside

lights? A. Not in that area. Q. Was it your responsibility to load your own truck? A. Yes, sir. Q. Hadyou ever

used that ramp onother occasions w hen it had been rain ing? A. Idon't recall any

specific time, but

I'm sure the

re is a pos sib ili ty. Q. On the night of the acci de nt, did you co nsider the ramp to be slick since it w

as wet? A. No, sir. Q. On any other occasions that you might ha v e used the ramp in the rain, did you ever find it to be slick? A. No, sir. Q. To your recollection, was there anything wrong with the ramp that night th

at contributed to y

our accident? A. Not that I'm aware of. Q. On the night of the a ccident, were y

ou aware that ra

in would make a concrete ramp slick? A. I'm aware of that, but I be lieve that ramp is groo ved or it's a rough ty pe surface whe

re you can

avoid that. Q. Do you think the rain played any part in your accident at all? A. I'm

not aware. If it did, y

ou know, it

could have been a contributing factor, but I wouldn't say that that was the sole c ause of the accident. Q. But

the ramp itself was either groov ed or rough such that the rain wouldn't ma

ke it any more sli

ck than it would be ord inari ly. Is that true? A. I believe so. Q. T o your knowle

dge, during a

ll the times that y

ou use d that ramp, was there ever an occasion that it was not in good condition, properly maintained? A. Just

other than having gravel

scattered on it. That's about it. Q. Would

the gravelbe scattered down at the bottom where the parking lot is ?-8- A. N o, just the entire length of it. I guess the tow motors coming and going out of the gravelled parking lot would probably bring some up with them. Q. On this particular night, you don't recall there being any gravel on the ramp, though? A. No, I don't r

ecall.

Th is very candid tes

timony by

the plaintiff not only

fails t o provid e materialevidence of a brea ch of duty as to the

condition and mai

ntenance of the
ramp, but further fails t

o establish

that the ramp ha

d any causal conn

ection at all
to his fall and resulting

injuries. Indeed, his testimony shows affirmatively that he has n o evide nce to s upport his cla im of premi ses lia bility.

His second assertion of d

uty is that the def

endant had a duty

to instruct him in the use of t

he self propelled ha

nd jack and failed

to do so.

Assuming

such a duty to exis

t, which is a doubtful assumption, there is simply no evi

dence in the

record that the alleged fa ilure to train had an

ything
to do wit h the accident in issue. Plaintiff had been using the same battery powered, self propelled hand jack for four to five years prior to the occurrence of this accident.

Plaintiff testifi

ed: Q. When your accident happened, were you walking down the ramp with the ja

ck with the skid of b

oxes on it? A. Yes, sir. Q. Andwas the jac k in fro nt o f you and yo u wer e walking behind it? A. Yes, sir. Q. Was that

the same -- were

you doing the same thing you had done on many

other occasions? A. Yes, sir. Q. Was ther e anything different about this particular night than what you had done on any other oc casion? A. No, sir. Q. Whathappened to

cause the jack to get away from you? A. I don't know, sir, if there was too much weight on the skid. I don't know, you know, if it just got hay wire with me there. I just lost control of

it and it just pretty much jerked out of my hand there. I couldn't contro

l it. Q. Again, l ook ing at the Complain t you have f

iled in this case, it sta

ted that you were traveling down the ramp with a selfpropelledhandjack and plaintif f, William Baumga

rdner, lost control of th e hand jack, was knocked off balance and did fall, causing personal injury. Is that a pretty

good description of what took place? A. Yes, sir.-9- Q. All right. When you lost control of the hand jack, did you let go of the handle so that it would pop up and stop the jack? A. Like

I said, that ha

ppened so fast

, I don't really re

call. That may have been the case. Q. Did the hand jack at any time run over y ou? A. It may have. Like

I say, it happened

so quick. T

he next thing I knew, I was try

ing to stand up. Q. If the jack is

in front of you and

you're w alking behind it, how could it run over you? A. The lever that comes back that I was hold

ing onto with the controls on it, unless that thing could have swing, you know, and I went into it, I don't know really. I t's a mystery to me. Q. Did you fall on the ramp? A. Yes. Q. When y o u fell, did you let go of the handle of the hand jack? A. Yes. All I remember, after it happened, I was on my back andI was trying to get up. So I'm sure a

t some point I did

have to let go of it.

. . . Q. Mr. Baumgardner, were you in a h urry as you were coming down the ramp with this particular load? A. No, sir. Q. Are you certai

n that you were behind

the jack at the time the accident happened? A. Yes, sir. Q. I may ha ve asked you this before, but I just want to be
sure. Can you offer

any explana

tion as to what happ

ened to cause this loadto do different th

an all the rest of t

h em yo u had taken down that ramp? A. I don't know, sir. I wouldn't have expected it to. Q. Was it a particularly big load? A. Just

a normal-sized load, just an optimal size load for a skid there. Q. As you were

going down the ramp, was it actually raining at that time or had it been raining and was sprinkling or misting? What was the condition of the rain? A. I believe it was sprinkling at the time. Q. Do youknow of any thing about the ra

mp or about th

e handjack th at ca used you to lose control of the hand jack on that particular occasion? A. No, sir. Q. Was there anybody other than y ou who hadtotal control of that hand jack? A. No, sir.

There is no material

evidence in the rec

ord establis hing pr oximate

causeeven if w e assume a duty to train and a breach by the defendant of that duty.

Finally, in sum

mary plain

tiff testified:-10- Q. In the lawsuit that you filed agai nstTridon, you have alleged tha t they were in some way ne gligent or did something wrong to cause this accident. And what I would like for you to tell me j ust in your own words i s wha t you feel Tr idon did wrong or

negligently

to cause this accid

ent. A. Well, I would say I wa s never officially tra

ined to use their equipment. Maybe the maintenance of the ramp possibly could have somet hing to do with it. That's -- I guess that's the -- that's the main thing that I can think of right off at this time. That's -- Q. All right. You have mention ed thatpossibly the maintenanceof the ramp may have had something to do with it. Was th ere a nything ab

out the ramp that y

ou noticed that nig

ht that was a failure on their part to maintain that ramp? A. Nothing that I noticed. Like I said, there

could have been debris on the ramp that I wasn't aware of.

Viewingthis case

in the l ight most favora ble to the non-mov

ing plaintiff, this court presents only the fact that an injury has occurred. It

is long settled in Tennessee that the mere fa ct than an injury has been sustained never raises a pre sumption of negligen ce. Mullins v. Seaboar d Coastline Railway C

o. , 517 S.W.2d

198, 201 (Tenn. App. 197 4). The testimony of plaintiff shows that he has no evidence to s

ustain his action for non-instruction.

Conclusion

In this unfortunate acc

ident, plaintiff ha

s the burden of proving t he elements of his cause of acti

on. To survive

summary judgm

ent he must at

least offer evidence upon which reasonable minds could differ. As to the ram p on which he fell, he has offe red no evidence of a brea ch of duty by t

he defendants. As to the alleged failu

re to train in

the use of the battery powered hand jack, even if one assumes a dut

y and a breach t

hereof, the rec

ord is devoid

of any evidence under which reasonable minds could find proximate cause.

The judgment of

the trial court in gr

anting summary

judgment for the defendant is affir

med.

________________________________ WILLIA M B. CAIN, JUDGE CONCUR:

______________________________________ HENRY F. TODD, PRE

SIDING JUD

GE, M.S.-11-

______________________________________ BEN H. CANTRELL, JUDGE