IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 27, 2018 Session

ANNE SHACKLETT v. ANTHONY A. ROSE ET AL.

Appeal from the Circuit Court for Williamson County

No. 09218 Joseph Woodruff, Judge

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No. M2017-01650-COA-R3-CV

___________________________________

This is a slip-and-fall case. An employee of a catering company fell, injuring herself 

when leaving a private residence after dark as she attempted to traverse an outside 

staircase. The employee brought suit against the homeowners, and the homeowners filed 

a motion for summary judgment. The trial court granted the homeowners’ motion, 

concluding that the homeowners did not owe the employee a duty of care. Our review of 

the record has revealed that material, disputed facts remain which render this case 

inappropriate for summary judgment. Accordingly, we reverse and remand. 

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

Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN 

STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Nancy K. Corley, Nashville, Tennessee, for the appellant, Anne Shacklett.

Janet Strevel Hayes and Susan W. Carey, Knoxville, Tennessee, for the appellees, 

Anthony A. Rose, Successor Executor of the Estate of W. Alexander Steele and Saundra 

Steele.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

On April 13, 2009, Appellant Anne Shacklett filed a complaint against codefendants Alexander Steele and his wife Saundra Steele (together “Appellees,” or “the 

Homeowners”) to recover damages for personal injuries Ms. Shacklett sustained in a fall 

down the outside stairs leading from the kitchen at the Homeowners’ residence when she 

05/02/2018
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was leaving the residence after dark.1 Prior to her fall, Ms. Shacklett had been working 

in the Homeowners’ kitchen as an employee of a catering service hired by the 

Homeowners for a private event. It is undisputed that it was daylight when Ms. Shacklett 

arrived at the residence, and she traversed the outside stairs leading from the kitchen 

without incident multiple times during daylight hours. In relevant portion, the complaint 

described Ms. Shacklett’s fall as follows: 

Plaintiff was exiting the home at the end of the party and went down the 

side kitchen steps, falling through a break in the railing and landing on the 

bottom on concrete or other hard surface on her face. There were no house 

lights and the motion lights on the steps where Plaintiff fell were not 

operating. It was night and unlit so that the entire area was dark and 

therefore dangerous. These side kitchen steps [were] the only way for 

Plaintiff to ingress and egress the house as [the Homeowners] had provided 

no other way for the caterers to enter or exit the house. They were difficult 

to maneuver, not well lit, and had a broken and/or defective railing, through 

which Plaintiff fell. 

The Homeowners answered on May 28, 2009.2 Regarding Ms. Shacklett’s 

allegations concerning the inadequacy of the outdoor lighting, the Homeowners “den[ied] 

that ‘there were no house lights,’ and they also denied that the residence utilized ‘motion 

lights on the steps’ as alleged[.]” They also “den[ied] that the ‘entire area was dark and 

therefore dangerous.’” Later on in the discovery process, the Homeowners responded to 

Ms. Shacklett’s requests for admissions. The Homeowners stated that the “outside 

lighting was working” on the night of the accident. Ms. Shacklett also prompted the 

Homeowners to “[a]dmit that the outside lighting illuminating the steps was on a timer 

which automatically shut off the outside lights at a specified hour.” In response, the 

Homeowners stated as follows:

Objection. This request refers to “the outside lights,” without establishing 

that there was only one light to justify the use of the singular none [sic] 

light. Denied as phrased, while the outside light was on a timer, Defendant 

overrode the timer by placing the lights “all on” for the party. 

Ms. Shacklett was deposed, and she gave the following testimony concerning the 

circumstances surrounding her fall, excerpted in part as follows: 

 

1 Mr. Steele passed away on October 23, 2012, and Anthony A. Rose, Successor Executor of the 

Estate of W. Alexander Steele was properly substituted as a party. 

2 After Mr. Steele’s death, Ms. Shacklett filed an amended complaint, and Ms. Steele filed an 

amended answer. In substance, the amended pleadings are the same as the original pleadings, except that 

Mr. Steele’s estate was substituted as a party. 
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Q: So what happened to cause your accident?

A: After the party was over, I was leaving by myself from the kitchen going 

out down the stairs, holding on the rail. I was not carrying anything but my

purse. And I went down the first set, a few stairs, turned to go down. The 

rail gave out. I mean, when I say “gave out,” I mean it ended, and I plunged 

to the ground on my face. 

. . .

Q: Were you looking where you were going?

A: Certainly, but it was black. I mean, it was dark. It was out in the country. 

It was dark.

. . . 

Q: When did you notice that there were no lights on outside?

A: Well, when I went out. When I went out. 

Q: When you opened the door to go out?

A: After I got outside. 

Q: And so when you—when you chose to go down the stairs, you knew 

there was no light. 

A: Yes.

Q: Why didn’t you turn on the lights?

A: I didn’t know where there were [exterior] lights. I was careful, holding 

onto the rail.

. . . 

Q: Now, you said that the rail ended at some point; is that right?

A: Yes. 

Q: And did you stop when it ended or did you keep going?

A: Well, I wasn’t expecting it to end, so I just kept going. 
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Q: Okay. 

A: I mean, I was just—with my right hand I was holding onto the rail and 

all of a sudden—I wasn’t expecting it.

. . . 

Q: And you went up and down more than once [when it was light outside]?

A: More than once but not very much. 

. . . 

Q: The other times you had gone up and down the stairs, had you had 

any problem?

A: No. It was daylight. 

Q: Had you been on the stairs at all in the dark?

A: No. Just when I left. 

On March 17, 2017, the Homeowners filed a motion for summary judgment 

alleging, inter alia, that they owed no duty of care to Ms. Shacklett.3In the motion for 

summary judgment, despite their previous statements, the Homeowners took the position 

that the exterior lights were off when Ms. Shacklett fell, and Ms. Shacklett was negligent 

in failing to turn the lights on before proceeding down the stairs. 

A hearing was held, and on July 18, 2017, the trial court entered an order granting 

the Homeowners’ motion for summary judgment. Relying heavily on Eaton v. McClain, 

891 S.W.2d 587, 594 (Tenn. 1994), the trial court concluded that the Homeowners owed 

Ms. Shacklett no duty. 

Ms. Shacklett timely appealed. 

ISSUES PRESENTED

Ms. Shacklett raises three issues for our review, which we restate as one 

dispositive issue as follows: 

 Whether the trial court erred in granting summary judgment?

 

3

In support of their motion for summary judgment, the Homeowners also filed a portion of Ms. 

Shacklett’s deposition, a memorandum of law, and a statement of undisputed material facts. 
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STANDARD OF REVIEW

This Court recently discussed the standard of review that we apply in an appeal 

from the grant of a motion for summary judgment as follows: 

[S]ummary judgment is appropriate where: (1) there is no genuine issue 

with regard to the material facts relevant to the claim or defense contained 

in the motion; and (2) the moving party is entitled to judgment as a matter 

of law on the undisputed facts. Tenn. R. Civ. P. 56.04. On appeal, this 

Court reviews a trial court’s grant of summary judgment de novo with no 

presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 

S.W.2d 618, 622 (Tenn. 1997)), cert. denied, 136 S. Ct. 2452, 195 L.Ed. 2d 

265 (2016). In reviewing the trial court’s decision, we must view all of the 

evidence in the light most favorable to the nonmoving party and resolve all 

factual inferences in the nonmoving party’s favor. Luther v. Compton, 5 

S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of Educ., 2 

S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one 

conclusion, then the court’s summary judgment will be upheld because the 

moving party was entitled to judgment as a matter of law. See White v. 

Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 

S.W.2d 150, 153 (Tenn. 1995). When a moving party has filed a properly 

supported motion for summary judgment, the nonmoving party must 

respond by pointing to evidence that shows summary judgment is 

inappropriate. Rye, 477 S.W.3d at 264–65. This Court may affirm the trial 

court’s grant of summary judgment on different grounds than that relied 

upon by the trial court. Hill v. Lamberth, 73 S.W.3d 131, 136 (Tenn. Ct. 

App. 2001) (citing Wood v. Parker, 901 S.W.2d 374 (Tenn. Ct. App. 

1995)).

Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 v. City of Memphis, 

No. W2017-00665-COA-R3-CV, 2017 WL 4842336, at *3 (Tenn. Ct. App. Oct. 24, 

2017). 

“If there is any uncertainty concerning a material fact, then summary judgment is 

not the appropriate disposition.” Liput v. Grinder, 405 S.W.3d 664, 669 (Tenn. Ct. App. 

2013). Our Supreme Court has stated: 

The summary judgment procedure was designed to provide a quick, 

inexpensive means of concluding cases, in whole or in part, upon issues as 

to which there is no dispute regarding the material facts. Where there does 

exist a dispute as to facts which are deemed material by the trial court, 

however, or where there is uncertainty as to whether there may be such 
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a dispute, the duty of the trial court is clear. He [or she] is to overrule 

any motion for summary judgment in such cases, because summary 

judgment proceedings are not in any sense to be viewed as a substitute 

for a trial of disputed factual issues.

EVCO Corp. v. Ross, 528 S.W.2d 20, 25 (Tenn. 1975) (emphasis added). 

DISCUSSION 

Negligence cannot be presumed by the mere happening of an accident. Brackman 

v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971). “‘[P]eople fall all the time[,] but 

this does not perforce mean that the fall was due to another’s negligence[.]’” Mooney v. 

Genuine Parts Co., No. W2015-02080-COA-R3-CV, 2016 WL 2859149, at *3 (Tenn. Ct. 

App. Apr. 20, 2016) (citation omitted). Thus, a claim for negligence requires proof of the 

following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct 

by the defendant falling below the standard of care amounting to a breach of that duty; 

(3) an injury or loss; (4) cause in fact; and (5) proximate cause. See West v. E. Tenn. 

Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005) (citing Coln v. City of Savannah, 996 

S.W.2d 34, 39 (Tenn. 1998)). “Negligence cases are generally unamenable to disposition 

at the summary judgment stage, unless the inferences and facts taken together ‘are so 

certain and uncontroverted that reasonable minds would agree.’” Boykin v. George P.

Morehead Living Tr., No. M2014-00575-COA-R3-CV, 2015 WL 3455433, at *2 (Tenn. 

Ct. App. May 29, 2015) (quoting Burgess v. Tie Co. 1, LLC, 44 S.W.3d 922, 923 (Tenn. 

Ct. App. 2008)). 

As stated above, the trial court granted summary judgment because it concluded 

that there were no disputed material facts, and the Homeowners owed no duty to Ms. 

Shacklett as a matter of law. On appeal, Ms. Shacklett argues that there are disputed 

material facts, and summary judgment was inappropriate. In her appellate brief, Ms. 

Shacklett argues that there are disputed facts concerning: the adequacy of the lighting 

(whether the lights were on or off, and if they were on, if they were adequate and 

operative); Ms. Shacklett’s familiarity with the layout of the stairs and break in the 

railing; and, assuming the lights were off, whether Ms. Shacklett could have successfully 

located the light switch or someone to assist her in turning on the outside lights. The 

Homeowners defend the trial court’s grant of summary judgment, arguing that there are 

no disputed material facts, and Ms. Shacklett failed to establish the duty element of her 

claim as a matter of law. In the alternative, the Homeowners aver that this Court should 

affirm the trial court’s grant of summary judgment on the basis of comparative fault 

principles.

Because summary judgment is predicated on there being no “uncertainty as to 

whether there may be” a dispute of material fact, we first consider Ms. Shacklett’s 
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contention that disputed material facts preclude summary judgment. Ross, 528 S.W.2d at 

25. This Court has an obligation to “determine whether factual disputes exist,” even if 

both parties allege that no material facts are in dispute. See Liput, 405 S.W.3d at 670 

(quoting Brooks Cotton Co., Inc. v. Williams, 381 S.W.3d 414, 419 (Tenn. Ct. App. 

2012) (finding facts in dispute, despite the fact that both parties alleged that no material 

facts were in dispute)).

I. DUTY

We will first evaluate whether there are disputed, material facts relevant to the 

duty element of Ms. Shacklett’s negligence claim. A homeowner is not an insurer of the 

safety of those who enter upon his or her property. See Eaton, 891 S.W.2d at 594. Thus, 

as in every negligence suit, the first element in a premises liability suit is “duty.” See id.; 

E. Tenn. Pioneer Oil Co., 172 S.W.3d at 550. “Duty is the legal obligation a defendant 

owes to a plaintiff to conform to the reasonable person standard of care in order to protect 

against unreasonable risks of harm.” See Howard v. FMS, Inc., No. 01A01-9709-CV00479, 1998 WL 195960, at *2 (Tenn. Ct. App. Apr. 24, 1998) (citing McCall, 913 

S.W.2d at 153); E. Tenn. Pioneer Oil Co., 172 S.W.3d at 550 (“The duty owed to the 

plaintiffs by the defendant is in all cases that of reasonable care under all of the 

circumstances.”). A risk is unreasonable if the foreseeable probability and gravity of 

harm posed by the defendant’s conduct outweigh the burden upon the defendant to 

engage in alternative conduct that would have prevented the harm. Coln, 996 S.W.2d at 

43 (citation omitted). “In analyzing duty, the court must balance the foreseeability and 

gravity of the potential risk of harm to a plaintiff against the burden imposed on the 

defendant in protecting against that harm.” Matherne v. West, No. E2015-02061-COAR3-CV, 2016 WL 6311283, at *10–11 (Tenn. Ct. App. Oct. 28, 2016). The degree of 

foreseeability needed to establish a duty of care decreases in proportion to increases in 

the magnitude of the foreseeable harm. Howard, 1998 WL 195960, at *2 (citations 

omitted). “The risk involved must be one which is foreseeable; ‘a risk is foreseeable if a 

reasonable person could foresee the probability of its occurrence or if the person was on 

notice that the likelihood of danger to the party to whom is owed a duty is probable.’” E. 

Tenn. Pioneer Oil Co., 172 S.W.3d at 551 (quoting Doe v. Linder Constr. Co., Inc., 845 

S.W.2d 173, 178 (Tenn. 1992)). The duty analysis presents a question of law; thus, a 

motion for summary judgment is an appropriate mechanism for determining a 

defendant’s duty when the material facts are undisputed. Id. (citing Nichols v. Atnip, 844 

S.W.2d 655, 658 (Tenn. Ct. App. 1992)).

This Court has described the applicability of duty in premises liability cases as 

follows: 

In a premises liability case, an owner or occupier of premises has a duty to 

exercise reasonable care with regard to social guests or business invitees on 

the premises. The duty includes the responsibility to remove or warn 
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against latent or hidden dangerous conditions on the premises of which one 

was aware or should have been aware through the exercise of reasonable 

diligence. See Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996); Eaton v. 

McLain, 891 S.W.2d 587, 593–94 (Tenn. 1994). Although the traditional 

rationale for imposing this duty was the owner’s superior knowledge of 

conditions on the premises, see e.g., Kendall Oil v. Payne, 41 Tenn. App. 

201, 293 S.W.2d 40, 42 (Tenn. App. 1955), we recently held that a duty 

may exist even where the injury-causing condition is alleged to be “open 

and obvious” to the plaintiff. We explained:

That a danger to the plaintiff was ‘open or obvious’ does not, 

ipso facto, relieve a defendant of a duty of care. Instead, the 

duty issue must be analyzed with regard to foreseeability and 

gravity of harm, and the feasibility and availability of 

alternative conduct that would have prevented the harm. The 

factors provided in the Restatement (Second) of Torts, § 

343(A) relate directly to the foreseeability question; in short, 

if the foreseeability and gravity of harm posed from a 

defendant’s conduct, even if ‘open and obvious,’ outweighed 

the burden on the defendant to engage in alternative conduct 

to avoid the harm, there is a duty to act with reasonable care. 

Matherne, 2016 WL 6311283, at *10–11 (quoting Coln, 966 S.W.2d at 43). 

As indicated above, the question of whether the Homeowners’ general duty of care 

encompasses the duty to guard against the acts set forth in the complaint involves an 

analysis of the foreseeability of the risk to which Ms. Shacklett was exposed. In other 

words, the issue is whether Ms. Shacklett has made “any showing from which it can be 

said that the defendants reasonably knew or should have known of the probability of an 

occurrence such as the one which caused [her] injuries.” Eaton, 891 S.W.2d at 594 

(quoting Linder, 845 S.W.2d at 178) (emphasis in original). 

The Homeowners and the trial court have relied heavily on Eaton for the 

proposition that the Homeowners did not owe Ms. Shacklett a duty because her actions 

were unreasonable, and thus her accident was not foreseeable. Id. at 594–95. In Eaton, a 

grandmother visiting her daughter and son-in-law got out of bed in the night to use the 

restroom, which was located across the hall. Id. at 589. Even though the grandmother 

knew the house was equipped with indoor lighting capable of illuminating the hallway, 

she opted not to turn on any lights for fear of waking her grandson. Id. She was also 

aware that the door to the basement was located beside the bathroom door. Id. 

Nevertheless, the grandmother mistakenly opened the unlocked basement door instead of 

the bathroom door, stepped into the dark basement without turning on a light, and injured 
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herself falling down the basement stairs. Id. Our Supreme Court concluded that the 

homeowners did not owe the grandmother a duty, explaining its reasoning as follows: 

In order for the McLains to be charged with the duty to leave on the light in 

the hall and to lock the basement door, they must have been able to 

reasonably foresee that Ms. Eaton would get out of bed in total darkness, 

walk across the hall, and step into the basement stairwell, all without 

turning on any lighting whatsoever. While our holding would likely be 

different if no lighting had been provided or if it had been inoperative, Ms. 

Eaton’s failure to turn on any lights, coupled with her willingness to open 

the door and step into an unfamiliar area, is such a radical departure from 

reasonable conduct under the circumstances that the McLains could not 

have reasonably foreseen that conduct and its consequences. To hold 

otherwise would necessarily cast the premises owner in the role of an 

absolute insurer of the social guest’s safety, which is not contemplated by 

our negligence law.

Id. at 594. 

The trial court concluded that Eaton was factually and legally analogous to the 

case at bar, and the Homeowners owed Ms. Shacklett no duty. We disagree with the trial 

court’s reasoning, and we find Eaton distinguishable from this case for several reasons. 

First, in Eaton, the grandmother was familiar with the layout of her daughter’s home, and 

she knew that the house was equipped with indoor lighting capable of lighting the 

hallway. Id. at 589–95. Nevertheless, the grandmother willingly chose not to turn on any 

of the lights because she did not want to risk waking up her grandson. Id. at 589. 

Moreover, it was undisputed that the grandmother’s mistake and resulting injuries could 

have been prevented had she simply turned on the lights. Id. 

However, unlike the grandmother in Eaton, Ms. Shacklett testified that “she did 

not know where there were [exterior] lights” or where the light switch for those 

hypothetical lights could be located. See id. at 595.4The complaint averred that Ms. 

Shacklett believed “there were no [exterior] house lights and the motion lights on the 

steps where [she] fell were not operating.” For their part, the Homeowners gave

conflicting statements concerning the adequacy and operability of the outdoor lighting 

around the area where Ms. Shacklett fell. First, in their answer, the Homeowners 

“den[ied] that the ‘entire area was dark and therefore dangerous,’” but stated that the 

stairs were not equipped with motion lights. In their responses to Ms. Shacklett’s requests 

 

4

In Eaton, the Supreme Court also cited Quinlan v. Cecchini, 41 N.Y.2d 686 (N.Y. Ct. App. 

1977), for the premise that a defendant’s “failure to leave [a] light on may constitute negligence where the 

visitor was unfamiliar with [the] home, the stairwell was open, and the door to [the] vestibule in which 

[the] stairwell was located swung open in such a way as to conceal [the] light switch.” 
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for admissions, the Homeowners doubled down on their position that the area where Ms. 

Shacklett fell was adequately lit stating that the “outside lighting was working,” and 

averring that, “while the outside light was on a timer, Defendant overrode the timer by 

placing the lights ‘all on’ for the party.” However, in their motion for summary judgment 

and supporting memorandum, in an apparent attempt to analogize to Eaton, the 

Homeowners averred that the outside stairs were dark and the lights were turned off, 

placing the blame for the accident on Ms. Shacklett for “decid[ing] to traverse the stairs 

in complete darkness.” The operability and effectiveness of the outside lighting on the 

night of the party is relevant to the resolution of Ms. Shacklett’s negligence claim, and it 

is unclear from the record whether the facts concerning the lighting are in dispute. See 

Liput, 405 S.W.3d at 669 (“If there is any uncertainty concerning a material fact, then 

summary judgment is not the appropriate disposition.”); see also Ross, 528 S.W.3d at 25 

(“Where there does exist a dispute as to facts which are deemed material . . . or where 

there is uncertainty as to whether there may be such a dispute, the duty of the trial court is 

clear. He [or she] is to overrule any motion for summary judgment.”). 

The second reason we find Eaton distinguishable is because in Eaton, the 

homeowners did not owe a duty partly because they did not have any reason to believe 

anyone would enter the basement area of their home in the middle of the night. See 

Eaton, 891 S.W.2d at 594. In this case, it is undisputed that the caterers were told to use 

the back outside stairs, and the Homeowners were aware the caterers would be using 

those stairs on the evening of the party. Because the Homeowners knew the caterers 

would be using the back outside stairs after dark, it was comparably more foreseeable 

than in Eaton that someone could injure himself or herself while attempting to navigate 

the stairs in the darkness. 

Finally, and perhaps most significantly, we find Eaton distinguishable because the 

condition that caused the grandmother to fall was undisputedly and exclusively the dark 

basement staircase. Had the grandmother turned on the lights, she would have seen the 

stairs and could have prevented her own injuries. However, in this case, the dark stairs 

were not the only condition on the Homeowners’ premises that could have contributed to 

Ms. Shacklett’s injuries. Specifically, the complaint alleged that the “broken and/or 

defective railing” caused Ms. Shacklett to fall. Inexplicably, the trial court failed to 

acknowledge the railing in its analysis. For the aforementioned reasons, we decline to 

follow Eaton in this case. 

We find the facts in Pope v. Blaylock, No. W2004-02981-COA-R3-CV, 2006 WL 

548268, at *1 (Tenn. Ct. App. Jan. 18, 2006), more closely analogous to this case than 

the facts in Eaton. In Pope, a social guest arrived at the defendant homeowner’s home 

before sunset and walked up the outside walkway to the house without incident. Id. When 

the guest left the home, it was dark outside, the outside house lights were turned off, and 

the plaintiff tripped over a brick retaining wall and fell injuring herself. Id. at *1. The 

guest brought a personal injury suit, and the trial court granted the homeowner’s motion 
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for summary judgment, concluding that the homeowner did not owe the social guest a 

duty of care. Id. at *2–4. On appeal, the social guest argued that there were material facts 

in dispute that rendered the case inappropriate for disposition at the summary judgment 

stage. Id. at *4. This Court reversed the trial court’s grant of summary judgment, stating 

as follows: 

Even though [the social guest] was somewhat familiar with the walkway 

and wall in the daylight owing to her arrival before nightfall, there is

dispute in the record as to whether the same walkway and/or wall 

became a dangerous condition on the homeowner’s property under 

cover of darkness. Although it is undisputed that the [homeowner’s] porch 

light was not turned on when [the social guest] left that evening, the 

question of whether the lighting (or lack thereof), as it existed at the 

time of the fall, was the cause in fact of [the social guest’s] accident, is 

still very much in dispute in the record.

Id. at *5 (emphasis added). 

Similar to the retaining wall in Pope, in the case at bar, there is a dispute over 

whether the railing became a dangerous latent condition on the Homeowners’ property 

under cover of darkness, and it is also disputed whether the lighting (or lack thereof) as it 

existed at the time of the accident was the cause in fact of Ms. Shacklett’s accident. We 

note that the trial court erred in resting its analysis on factual assumptions that were not 

established by the proof or appropriate at the summary judgment stage. For example, 

although there were clearly conflicting factual allegations in the record concerning the 

lighting, the trial court stated that “the exterior lights were not on” and assumed that “it 

[was] undisputed that the Steeles provided operative lights that were capable of 

illuminating the stairwell.” Our review of the record reveals no proof concerning the 

location of existing exterior lights around the stairs or whether those lights were capable 

of illuminating the stairs on the night of the party had the lights been turned on. The 

resolution of these factual issues by the jury will affect the court’s application of the duty 

balancing test. For example, if the jury concludes that the Homeowners provided 

adequate and operable exterior lighting that was simply turned off and the railing did not 

constitute a latent dangerous condition after dark, the reasonably foreseeable probability 

of Ms. Shacklett’s accident occurring would be less than if the jury concludes that the 

railing was a latent defect,5and the Homeowners’ outside lighting was turned on but 

failed to illuminate the area where Ms. Shacklett fell. We reiterate that “summary 

 

5

It is well settled that property owners have a duty to warn their guests about known latent 

defects on their property. See Matherne, 2016 WL 6311283, at *11 (“The duty [of property owners] 

includes the responsibility to remove or warn against latent or hidden dangerous conditions on the 

premises of which one was aware or should have been aware through the exercise of reasonable 

diligence.”) (citations omitted). 
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judgment proceedings are not in any sense to be viewed as a substitute for trial of 

disputed factual issues.” See Ross, 528 S.W.2d at 25. Having carefully reviewed the 

record, we are unable to determine whether or not the Homeowners owed Ms. Shacklett a 

duty of care because of conflicting relevant, material factual allegations in the record. 

Lastly, we point out that the trial court also erred in citing Eaton for the premise 

that, “[w]hile a premise owner owes a duty to warn of latent or hidden dangers, no duty 

arises if the danger is open and obvious.” We respectfully disagree. Even if the factfinder concludes that the break in the railing was an “open and obvious” danger, the 

Homeowners would not necessarily be relieved of their duty of care. See Matherne, 2016 

WL 6311283, at *13. For example, in Matherne, a woman injured herself when she fell 

off an elevated parking level while vacationing at the defendant homeowners’ cabin. Id. 

at *1.6The plaintiff admitted that she was familiar with the drop off in the pavement and 

the lack of railing. Id. at *2. Having concluded that the homeowners owed the plaintiff no 

duty because the plaintiff had actual knowledge of the potential danger, the trial court 

granted summary judgment, and the plaintiff appealed. Id. at *1. This Court determined 

that summary judgment was inappropriate, and the homeowners owed the plaintiff a duty 

of care even though the danger was open and obvious. See id. at 13. We explained our 

reasoning as follows: 

Mrs. Matherne knew the risk. According to Defendants, this should be 

sufficient to grant their motion for summary judgment.

However, Mrs. Matherne’s knowledge of the risk does not end our 

inquiry. . . . [E]ven an “open and obvious” hazard does not necessarily 

relieve a defendant of a duty of care. We must determine whether the 

reasonably foreseeable probability and gravity of harm from a possible fall 

while using the upper parking level as intended outweighed the burden 

upon Defendants to engage in alternative conduct which would have 

prevented a risk of harm to Plaintiffs. . . . [T]he danger of falling off this 

elevated parking level was obvious to Mrs. Matherne. We conclude, 

nevertheless, that Defendants owed a duty of care.

Id. (emphasis added). 

In this case, even if the jury concludes that the dark stairs/ railing constituted an 

open and obvious danger, the trial court must still apply the duty balancing test to 

 

6 A photo of the parking areas was made an exhibit in the case and appears on Westlaw. See 

Matherne, 2016 WL 6311283, at *1. The cabin had two areas of parking—a lower level and an upper

area—which were located on a steep hill parallel to each other. Id. The concrete that made up the upper 

parking area formed a platform that dropped off at a ninety degree angle forming the boundary between 

the parking areas. Id. A railing extended over a portion of the boundary line, but the railing did not 

extend the entire length of the boundary/drop off. Id.
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determine whether the reasonably foreseeable probability and gravity of harm 

outweighed the burden upon the Homeowners to engage in alternative conduct which 

would have prevented a risk of harm to Ms. Shacklett. However, as we stated above, the 

duty balancing test cannot be applied at this point in the proceedings because material, 

relevant facts remain in dispute. Thus, the trial court erred in granting summary judgment 

based upon duty. 

II. BREACH OF DUTY, INJURY OR LOSS, CAUSE IN FACT, PROXIMATE CAUSE, AND 

DEFENSES

In addition to proving the existence of a duty of care, Ms. Shacklett still bears the 

burden of establishing the remaining elements of negligence: breach of duty, injury or 

loss, cause in fact, and proximate cause. In light of our decision that this case is 

inappropriate for summary judgment, the jury should also resolve these remaining 

elements. 

Lastly, the Homeowners urge this Court to affirm the judgment of the trial court 

granting summary judgment because they contend that no reasonable juror could 

conclude that Ms. Shacklett was less than fifty percent at fault for her own injuries 

because she failed to turn on the outside lights.7The Homeowners’ argument clearly rests 

on the assumption that the outside lights around the stairs were indeed turned off when 

Ms. Shacklett fell. As stated above, the trial court erroneously based its analysis on the 

assumption that the lights were off, stating unequivocally in its order, “it is undisputed 

that the Steeles provided operative lights that were capable of illuminating the stairway.” 

However, based upon our review of the record and the parties’ attorneys’ statements at 

oral argument, it appears that uncertainty remains concerning whether the outside lights 

surrounding the area where Ms. Shacklett fell were turned on, or turned off, or adequate, 

or operable on the night of the party. 

For example, in response to Ms. Shacklett’s interrogatories, the Homeowners 

stated, “while the outside lights were on a timer, Defendants overrode the timer by 

placing the lights ‘all on’ for the party.” However, despite this statement, it is currently 

the Homeowners’ firm position that the lights were off, and Ms. Shacklett bore the 

responsibility of turning on the lights before she proceeded down the stairs. At oral 

argument, the panel questioned the parties’ attorneys in an attempt to clarify the nature of 

the factual dispute concerning the exterior lighting, and it became clear to us that the 

parties’ disagreement persists. For example, the following exchange occurred between 

the panel and the Homeowners’ counsel: 

 

7

See Matherne, 2016 WL 6311283, at *14 (citing Hill, 73 S.W.3d at 136) (“This Court may 

affirm the trial court’s grant of summary judgment on different grounds than that relied upon by the trial 

court.”). 
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Q: [‘All-on’] doesn’t mean the lights would remain on?

A: Correct. 

In contrast, the following exchange occurred between Ms. Shacklett’s counsel and the 

panel: 

Q: [W]hat does that mean? ‘All-on?’ Does that mean that the timer means 

that the lights were to remain on for the entirety of the party or that the 

timer had been overridden so that the lights could be manually controlled? 

How do we know?

A: It simply says they were ‘all on[.]’ . . . So at this point, we really don’t 

know the answer of why those lights were not working, whether or not 

they were actually turned off, whether or not they weren’t working, or

whether or not they were actually so dim that they did not illuminate 

the area so that she could see the steps. 

. . . 

Q: Was the override though for the purpose of making sure that the lights 

did not go off at a particular time and not come back on?

A: The Homeowners said that they had overridden the timer so that the 

lights were ‘all-on’ for the party. And there were outside lights on. There 

were outside lights at the bottom of the steps, but there were no outside 

lights on at the top of the steps. So I think you can make an inference that 

something was wrong with the lights by the door. 

Clearly factual disputes remain concerning several issues including the lighting, 

which make it impossible for us to determine which party was more at fault for Ms. 

Shacklett’s accident. Thus, the jury should also decide whether Ms. Shacklett’s own 

negligence, if any, equaled or outweighed the Homeowners’ negligence, if any. Downs ex 

rel. Downs v. Bush, 263 S.W.3d 812, 825 (Tenn. 2008) (citing Hale v. Ostrow, 166 

S.W.3d 713, 718 (Tenn. 2005) (stating the allocation of comparative fault is a 

determination of fact to be made by the jury)). 

CONCLUSION

In summary, we conclude that there are genuine issues of material fact that render 

summary judgment inappropriate. Again, we reiterate that “[n]egligence cases are 

generally unamenable to disposition at the summary judgment stage, unless the 

inferences and facts taken together ‘are so certain and uncontroverted that reasonable 
- 15 -

minds would agree.’” See Boykin, 2015 WL 3455433, at *2 (quoting Burgess, 44 S.W.3d 

at 923). Here, that is clearly not the case. For the aforementioned reasons, we reverse the 

judgment of the trial court granting summary judgment to the Homeowners. This case is 

remanded for such further proceedings as may be necessary and are consistent with this 

Opinion. 

_________________________________

ARNOLD B. GOLDIN, JUDGE