IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 13 , 2010 Session

KATHY YOUNG ET AL. v. FIRST BANK OF TENNESSEE

Appeal from the Circuit Court for Rhea County

No. 02-27191 Thomas W. Graham, Judge

No. E2010-01434-COA-R3-CV - Filed January 28, 2011

Kathy Young (“the plaintiff”) stepped backward onto an elevated curb as she opened the

driver’s door of her vehicle to leave the parking lot of First Bank of Tennessee. She was

injured when she tripped over the curb and fell into the shrubbery that bordered the parking

lot. She and her husband filed this action alleging that First Bank was negligent in creating

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or maintaining a dangerous condition. First Bank filed a motion for summary judgment

which the trial court granted. The plaintiff appeals. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the Court, in which HERSCHEL P.

FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

Larry G. Roddy, Dayton, Tennessee, for the appellants, Kathy Young and husband Donny

Young.

N Mark Kinsman and J. Chad Hogue, Chattanooga, Tennessee, for the appellee, First Bank

of Tennessee.

OPINION

I.

The incident that gave rise to this action happened in the parking lot of First Bank of

Tennessee located off Third Street in Dayton. On December 23, 2008, the plaintiff went to

We have defined Mrs. Young as “the plaintiff.” We do so for ease of reference only. We fully 1

recognize that Mr. Young is a plaintiff in the pursuit of a derivative claim. 
First Bank to make a payment for her sister. She turned off Third Street into the parking lot

and then immediately turned left into the parking space situated closest to Third Street. A

photograph of the parking space, with the plaintiff’s minivan parked in the same space, was

made an exhibit to the plaintiff’s deposition. The parties acknowledge that the exhibit is a

true and accurate depiction of the space and adjacent environs as it existed on the day of the

accident; however, the plaintiff was unable to say whether the photograph accurately reflects

how her vehicle was parked in that space on the day of the accident. The photograph was

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taken by the plaintiff’s representative. It is depicted in Figure 1. below.

Figure 1.

The bank is the building directly in front of the plaintiff’s vehicle. A sidewalk runs

along the side of the building perpendicular to the vehicle (“the front sidewalk”). Third

Street runs to the left of and parallel to the length of the minivan. A second sidewalk (“the

Third Street sidewalk”) runs parallel to Third Street and parallel to the parking space and

perpendicular to the front sidewalk. To the left of the parking space is a raised bed of

shrubbery situated between the parking space and the Third Street sidewalk. The shrubbery

bed is separated from the paved parking lot by an elevated curb. The curb extends from the

Third Street sidewalk to the front sidewalk. The curb runs parallel to Third Street from the

front sidewalk approximately the length of an automobile and then curves toward Third

Street until it hits the Third Street sidewalk. The curb is the same color as the pavement,

except for a short section next to the Third Street sidewalk which is painted yellow.

The plaintiff agreed that the parking space shown in the photograph was the one she occupied that

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day.

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The following facts describing the actual accident are taken from the bank’sstatement

of undisputed facts filed in support of its motion for summary judgment:

[The plaintiff] visited this branch approximately one time per

week, and had been doing so for several years.

. . . [W]hen she visited the bank, she always parked in the

parking lot in which she fell [,although she did not remember

ever parking in the actual space where her fall occurred].

On the day of the accident, [the plaintiff] pulled into the first

parking space.

Then she opened her door and moved toward the rear of the car

so that she could shut the door.

[The plaintiff] went into the bank to conduct her business and

returned to the parking lot.

When [the plaintiff] returned to her vehicle,she walked between

her vehicle and the curb and turned to face the front driver door.

[The plaintiff] had her vehicle remote in her right hand and

reached for the door handle with her left hand.

As she pulled the door towards her, she stepped back and

stepped onto the curb.

[The plaintiff] . . . heard . . . three popping sounds, and she fell

into the bushes adjacent to her vehicle.

When she arrived at First Bank, [the p]laintiff did not see the

curb in question.

[The p]laintiff admits that she would have seen the curb if she

had been looking for it.

* * *

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During the time when she began to open the door and she

stepped back, she was facing her van.

After exiting her vehicle, [the plaintiff] admits that she saw the

bushes to her left, but denies that she saw the curb in question,

despite the fact that she would have walked parallel to this curb

for several feet in order to reach the sidewalk.

* * *

[The p]laintiff was facing the door of her van before the fall.

Due to the position of her body in front of the door, it was

impossible for her to open her vehicle’s door without stepping

backward.

Rather than move to the rear of the vehicle and swing the door

in front of her, [the p]laintiff stepped backward without looking

to see whether she could make the movement safely.

(Paragraph numbering and record citations omitted). These facts are taken from the

plaintiff’s deposition. The plaintiff did not challenge the bank’s statement of facts in the trial

court. Her brief on appeal essentially recites the bank’s statement of undisputed facts as the

facts of the case.

The trial court’s order sustaining the bank’s motion for summary judgment, states as

follows:

[T]he [p]laintiff simply can not prove at least two (2) of the five

(5) essential elements of this negligence action, to-wit:

First, with regard to duty, a business owner is not required to

warn invitees such as the [p]laintiff of open and obvious dangers

such as the curb in this case which can be easily stepped over or

around and which is common to many parking areas. In fact,

this [p]laintiff had been in this parking lot on numerous

occasions over the years and was quite familiar with its

construction. Moreover, it is clear from the contemporaneously

taken photo of the subject curb that the curb was not obstructed

from normal vision by the shrubbery contained therein. (See

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Exhibit 4 to Plaintiffs’ March 24, 2010, deposition. [Figure 1.

above].)

Secondly, even if some duty to warn such as painting the curb

existed [as alleged by the plaintiff], this [p]laintiff was not

looking where she stepped when she blindly backed into the

curb. Therefore the alleged failure to warn was not a cause in

fact. [The p]laintiff’s failure to see and be aware of the area

where she stepped was the cause of her injury.

Finally, even it the [bank] had not negated duty and cause in

fact, this Court finds no reasonable person could conclude based

on the facts in this case, that [the bank’s] alleged failure to warn

was the primary negligent act causing the subject injury. The

facts establish [the p]laintiff’s failure to observe what was there

to be seen was the primary cause of her fall and resulting injury

and was at least fifty percent (50%) of the fault in this case.

(Headings in document and footnote omitted).

II.

The sole issue the plaintiff identifies for appeal is whether “the trial court err[ed] in

granting defendant’s motion for summary judgment.”

III.

The Supreme Court in a 2009 decision articulated the standard for reviewing summary

judgment:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no

presumption of correctness attaches to the judgment, and our

task is to review the record to determine whether the

requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied.

A summary judgment may be granted only when there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. The party seeking the summary

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judgment has the ultimate burden of persuasion that there are no

disputed, material facts creating a genuine issue for trial and that

he is entitled to judgment as a matter of law. If that motion is

properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the

burden, the movant must either affirmatively negate an essential

element of the nonmovant’s claim or demonstrate that the

nonmoving party cannot establish an essential element of his

case. . . .

Courts must view the evidence and all reasonable inferences

therefrom in the light most favorable to the non-moving party.

A grant of summary judgment is appropriate only when the facts

and the reasonable inferences from those facts would permit a

reasonable person to reach only one conclusion. In making that

assessment, th[e] Court must discard all countervailing

evidence.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363 -64 (Tenn. 2009)(citations

and internal quotation punctuation omitted).

IV.

The thrust of the plaintiff’s challenge to summary judgment is simply this: when the

facts and all reasonable inferences therefrom are taken in a light most favorable to her, and

the countervailing evidence is discarded, a reasonable trier of fact could conclude that the

bank was negligent. Her summary of the facts that would supposedly allow that conclusion

is as follows:

The deposition of [the] plaintiff and the photographs clearly

show that the parking lot space in which [the] plaintiff parked is

near an elevated curb. . . . [V]iew of the curb is partially

obstructed by bushes. . . . [T]he curb is the same color as the

pavement. The curb is difficult to see when pulling into the

space due to the bushes and the camouflage effect of the color

of the pavement and the curb. . . . [H]aving a curb partially

painted yellow and then end the yellow paint leaving the balance

of the curb unpainted and the same color as the pavement

creates an[] illusion that the curb ends with the yellow paint.

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We disagree with the plaintiff. As the trial court correctly notes, there are two

dispositive facts as to which there is no countervailing evidence and no favorable inferences

to be drawn in the plaintiff’s favor. The first is that “it is clear from the . . . photo[graph] of

the subject curb that the curb was not obstructed from normal vision by the shrubbery

contained therein. (See [Figure 1. reproduced above]).” The second fact is that “even if

some duty to warn such as painting the curb existed [as alleged by the plaintiff], this

[p]laintiff was not looking where she stepped when she blindly backed into the curb.” These

undisputed facts compel the conclusion that if the plaintiff had looked – which she

admittedly did not – she would have seen the curb, and that the cause of her injury was not

the bank’s alleged failure to paint the curb or otherwise call attention to it, but the plaintiff’s

failure to look where she was stepping.

The plaintiff arguesthat Allman v. Hut’s,Inc, No. W2000-01829-COA-R3-CV, 2001

WL 523953 (Tenn. Ct. App. W.S., filed May 16, 2001) compels reversal of the summary

judgment. Allman did involve a patron’s fall over a small elevated curb, but there the

similarity ends. The curb in Allman was situated directly in the sidewalk in the path of foot

traffic “in front of the main entrance . . . where Hut’s invited and expected patrons to enter

and exit.” Id. at *5. The curb in the present case was not in the traffic path, and the bank

could not have expected that a patron would walk backward over it without looking. Also,

in Allman, there were numerous distractions at the entrance to the business that “drew the

attention of patrons away from the curb.” Id. There are no such distractions even alleged

in the present case. Accordingly, Allman does not require reversal of the summary

judgment.

Allman recognized that questions of duty, breach and causation, although normally

questions of fact, “become questions of law. . . when the facts and inferences drawn

therefrom permit reasonable persons to reach only one conclusion.” Id. (citing Kelley v.

Johnson, 796 S.W.2d 155, 157 (Tenn. Ct. App. 1990)). We hold that the facts and

inferences therefrom in the present case permit reasonable persons to reach only one

conclusion, i.e., that the curb was visible and gave rise to no duty to warn and further that the

plaintiff’s failure to look where she was going was the cause of her accident rather than

breach of any duty to warn that, theoretically, may have existed. In the absence of any reason

for assigning fault to the bank, we decline to decide whether, if the bank is assumed to be at

fault, the plaintiff was 50% or more at fault.

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V.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the

appellants, Kathy Young and her husband, Donny Young. This case is remanded, pursuant

to applicable law, for collection of costs assessed below.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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