### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
MARY J. JONES v. H. G. HILL REALTY COMPANY
Direct Appeal from the Circuit Court for Williamson County

No. II-97722 Russ Heldman, Judge

No. M1999-00633-COA-R3-CV - Decided June 29, 2000

Plaintiff sued D efe ndant for damage s resulting from Pla

intiff’s fall on De

fendant’s premi

ses. Summary judgment was granted on Defendant’s motion. On ap pe al Plaintiff challenges the summary judgment grant as well as the trial court’s refusal to c onsider t he affidavit of her expert witness submitted in

response to Defendant’s summary judgment motion. We affirm the action of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

C AIN , J., delivered the opinion of the court, in which K OCH , and C OTTRELL , JJ., joined.
George E. Copple,

Jr., Nashville, Te

nnessee, for the

appellant, Mary J . Jones.
Malcolm L. McCune, Nashville, Tennessee, for the appellee, H. G. Hill Realty Company.

OPINION

The standard of review is clear in cases concerning a grant of summary judgment. We review the de cision of the trial court de novo with no presumption of correctness on appeal. We view the evidence in th

e light most favora

ble to the non-mova

nt, allowing all

necessary inferences in her favor a

nd dis carding all count

ervailing eviden

ce, to determine

whether a genuin

e dispute exists as to any mate

rial fact. See Byrd v. Hall , 847 S.W.2d 208, 210-11 (Tenn. 1993). If, upon
r eview , a genuine issue exists or if there is doubt as to whether such issue exists, the summary judgmentis improper and should be reversed. See Evco Corp. v. Ross , 528 S.W.2d 20, 24 (Tenn. 1975). In premises li ability cases like the one at bar, our supreme court has said, “A summary judgmentremains appropriate, for example, where Plaintiff has not produced suffic

ient evidence to meet the “duty” compon

ent, or any other

component of a ne

gligence claim, a

s a matt er of law .” Coln v. City of Savannah , 96 6 S.W.2d 34, 44 (Tenn. 1998) (citing Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993). See also

Tenn. R. Civ. P. 56.04. Motions for summary judgment should neitherbe taken lightly nor ig

nored. As the rule

requires,

When a motion for summar y judgment is made a

nd supported as pr

ovid ed in thi s-2-

rule, an advers e party may not rest upon the mere allegations or denials of the adverse party’s pleading, but hi s or her r esponse, by affi davits or as other

wise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Tenn. R. Civ. P. 56.06.
The complaint in this case was filed December 19, 1997, and alleged the following:

That on or about Dece

mber 20, 1996, the Pl

aintiff, MARY J.JONES, was exiting the H.G. Hills Shopping Center in Brentwood, Tennessee. While descending the stairs betweenKinko’s and Lee’s Pharmacy, Plaintiff became unsteady and reached for the handrail to steady herself. Due to the neglige ntly designed hand rail, sized in such
a manner that she was unable to grasp it, Plaintiff, MARY J. JONES, fell violently, sustaining injuries which essentially crushed the left side of her body. Such action occurred as a result of the

aforementioned

handrail being too

large to accommo

date the average-size hand. * * * Defendant,

H.G. HILL REALTY COMPANY, failed to provide handrails at the aforementioned

shopping center d

esigned to protect patrons of such

shopping center when using stairs between the various stores. Their failure to provide appropriately designed and sized handrails constitutes negligence and a breach of their duty of due care to such per

sons. Defendant,

H.G. Hill Realty, filed its answer in January of 1998 denying the allegations concerning the negligently siz ed handrail. After

some discovery, H.G. Hill Realty filed for summary judgment. Accompanying tha t motion were seve

ral affidavits w

hich showed that Mr

s. Jones, while walking down the stairs in qu estion reached w

hat she thought was

the last step. In fa

ct, she h ad reached the third from the last step of stairs. She then stepped out into thin air. In addition, H.G. Hill Realty presented

affidavits to

the effect that thehandrail, which M rs. Jones attempte

d to grasp for support, was constructed with due regard for the building codes at the time of construction. The motion was also accompanied by a sta tement of undispute

d facts and a memo

randum of law in support of summary

judgment.

Mrs. Jones’s response to this moti on for summary judg ment was accompa

nied by an affida

vit from Plaintiff as well as an affidavit from pu rported expert C

harles Nelson. Mr

s. Jones’s affida

vit reiterate d her disorientatio n and inability to gr

asp the handrail.

Mr. Nelson’s aff

idavit stated in pertinent part that the handrail to which both parties had referred in pleadings and discovery did not fit the “dictionary” definitionof a handrail, and thus was in violation of theapplicable building code. Mr. Nelson’s affida

vit also stated that du

e to the curved shape of the descending stairway, a person who wished to descend

steps of uniform wi

dth would have to travel without the aid of th e handrail while a person who wishe

d to use the handrail would face steps of increasing width. In Plaintiff’s Response to Defendant’s Rule 56.03 Statement of Material Facts, she admits to having a “history of misjudging” the steps on which she fell. She includes a “Sta tement of Additiona

l Material Facts-3-

Creating a Genuine IssueFor Trial.” Using primarily the statements of Mr. N

elson as issues of f

act, Mrs. Jones lists the following:

1. The steps become incr easingly wider a

s the user descen

ds using the handra

il, and this can be confusing to the user. 2. The handrail

is 31⁄2 inches in

diameter and is too large for the fingers of the averag e hu man hand to wrap around it and get a good grip. It does not meet the dictionary definition of handrail: “a narrow rail for grasping with the hand as support.” * * * 4. The defendant H.G. Hill Realty should have anticipa ted the harm of nonuniform steps and a

n overly thick han

drail.

In reviewing the record in a li ght most favorable

to Mrs. Jones,

there seems to be

no dispute as to the fact that in her journey down the stairs betweenKinko’s and Lee’s Pharmacy Mrs. Jones became disoriented and started to fall; that she reached for the handrail which, though constructed consistent with the building codes at the time the building was constructed, did not provide her with the support she ne

eded to prevent h

er fall.

To make out a case for premises liability, a plaintiff must show that the premises owner or operator failed in its duty to m

ain tain the p remises in a safe condition or faile

d to warn of a risk about wh ich it was aware or, through the exercise of due diligence, should have been aware. See Rice v. Sabir, 97 9 S.W.2d 305, 308 (T enn. 1999); see e.g. Blair v. Ca mpbell , 924 S.W.2d 75, 76 (T enn. 1996); Eaton v. McLain , 891 S.W.2d 587, 593 -94 (Tenn. 1994) ; Jones v. Zay re, Inc. , 60 0 S.W.2d 730, 732 (Tenn. 1980). Obviously showing negligence in this context requires proof of a dangerous condition created by or apparent to the owner/operator. See Rice , 979 S.W.2d at 308; Chambliss v. Shoney’s, Inc. , 742 S.W.2d 271, 273 (Tenn. Ct. App. 1987).
As the supreme court stated in Rice :
The duty imposed on the premises owner or occupier, however, does not includethe responsi bility t o remove or warn

against “conditio

ns from which no unr

easonable risk was to be anticipated, or

from those which the occupier neither knew about nor could have discovered with re asona ble care.” Prosser and Keeton on Torts, supra, § 61 at 426. In this regard, “the mere existence of a defect or da

nger is generall

y insufficient

to establish liabilit

y , unless it is shown to be of such a character or of such duration that the jury may reasonabl y conclude that due care would have discovered it.” Id . at 426-27.

Rice , 979 S.W.2d at 309. The record in this case is insufficient to create a jury question as1 Inasmuch as we hold for Defendant in Mrs. Jones’s second issue on appeal concerning an

allegederror on the par

t of the tr i al court in refusing to consider the affidavit of Charles Nelson, there is no evidence to

show any violation of the attendant standard of car

e concerning the

handrail or stairway.

-4- to the existence of a dangerous c ondition in the prem

ises. 1

Mrs. Jones argues that the affida vit p roffered by Charles Nelson amounts to expert proof supporting her claim. The gist of this aff idavit was that des

pite the absence

in the Standard Building Code of specific req

uirements as to the

size of a handra

il, the rail in quest

ion was overly

large and thereforedoes not meet the “dictionary definition” of a handrail, i.e. “Anarrow rail for grasping ... .” It appears to this court that Appellant is attempting t o stretch the standards of admissibility of expert proof far beyo nd th at which was contemplated by the supreme court in McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257 (Tenn. 1997). The material question of fact, if there is one, is whether the “handrail-stair

combination” cau

sed Mrs. Jones’s f

all. Other than th

e bare unsu

pported statements

by Mr. Nelson, the whole of his “expert proof” regarding this question is an excerpt from
a dictionary equal

ly capable of be

ing read and unde

rstood by the most l

earned engineer or the averagelay reader. No study exists in this affid

avit to suggest

a causal link between the size of the handrail and the injuries in question - - only the assumption that the St andard Building Code’s drafters must have changed the design requirements well after the construction of t he H .G. Hill building in response to Webster’s Dictionary. There is no methodology to support any assertion that the stairs foreseeably led to the disorientation of those who trave rs ed them. As a resu

lt, the only proof as to the “duty” of H. G. Hill to warn, i.e . the very nature of the handrail -

stair - condition, i

s pure conjecture. Such conjecture does no t beco me expert proof simply by virtue of the technical expertise of the proponent . This is the very reason why trial courts are accorded the gatekeeper function described in the Tennessee Rules of Evidence

and in McDaniel . The questions regarding admissib ility and c ompetency rest within the sound discretion of the trial court. McDaniel, 955 S.W.2d at 264; see also

Tenn. R. Evid. 702-703. The court specifically found that the affidavit given by Mr. Nelson and proffered by Plaintiff, Mrs. Jon es, did not rise to the level of expert proof. Indeed, the ability to read from a dictionary does not amount to expert pr

oof. We find no ab

use of discretion in the trial court’s exclusion of that testimony.
Plaintiff/Appellant

cannot survive a

summary judgment i

n this case under principles established in Eaton v. McClain , 8 91 S.W.2d 587 (Tenn. 1994). Appellant has not shown that appellee “reasonably knew or should have reasonably known of the probability of an occurrence such as the one which caused her injuries.” Eaton v. McClain at 594. No “duty” e

xists under the undisputed facts of this c ase. The trial court correctly granted Defendant’s motion for summary judgment.

The action of the tria

l court, therefo

re, is affirmed i

n all respects, and the

cause is remanded-5-

for such further

proceedings as ma

y be necessary.

Costs are assigned

against Appellan

t.