FILED

Oct. 25, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

GLORIA KEENE and husband, ) 

EDWARD KEENE, )

) Appeal No.

Plaintiffs/Appellants, ) 01-A-01-9505-CV-00211

)

v. )

) Davidson Circuit

CRACKER BARREL OLD COUNTRY ) No. 88C-2728

STORE, INC., )

)

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE THIRD CIRCUIT COURT OF DAVIDSON COUNTY

THE HONORABLE BARBARA N. HAYNES, JUDGE

KEITH V. MOORE

100 North Main Building

Suite 3217

Memphis, Tennessee 38103

ATTORNEY FOR PLAINTIFFS/APPELLANTS

MARTIN D. HOLMES

Stewart, Estes & Donnell

14th Floor, 424 Church Street

Third National Financial Center

Nashville, Tennessee 37219

ATTORNEY FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

SAMUEL L. LEWIS, JUDGE
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O P I N I O N

This is an appeal by plaintiffs/appellants, Gloria and

Edward Keene, from the trial court's order granting partial summary

judgment to defendant/appellee, Cracker Barrel Old Country Store,

Inc. ("Cracker Barrel").

The pertinent facts and history are as follows. On 27 July

1987, Mrs. Keene entered a Cracker Barrel restaurant. While being

led to her table by a Cracker Barrel employee, Mrs. Keene fell. As

a result of the fall, Mrs. Keene broke her left hip, more

specifically, her left femoral neck. Dr. Morris, an orthopedic

surgeon, treated Mrs. Keene. On 26 July 1988, Mr. and Mrs. Keene

filed a complaint alleging that Cracker Barrel was negligent. 

Over the next few years, Mrs. Keene developed avascular

necrosis in her left hip. This condition causes the head of the

femur or the ball of the hip to die because of an insufficient

supply of blood. As the bone dies, the hip collapses. In addition

to the bone dying, the cartilage dies. The death of the cartilage

causes a great deal of pain because there is no cushion left

between the bones and they grind against one another. Mrs. Keene

also developed an antalgic or painful gait as a result of the hip

break. Simply stated, this is a limp. For example, as Mrs. Keene

"puts her foot down on the side with the broken hip, she gets off

that hip very quickly onto the next foot." 

Three years after Mrs. Keene fell in the Cracker Barrel, she

was outside working in her garden. While there, she saw some worms

on a lower limb of her pecan tree. In order to treat the tree, she

climbed onto the first step of a small ladder. Mrs. Keene claims

that as she was about to get down her left leg collapsed and she

fell. As a result of the fall, she broke her right femoral neck.
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Once again, Dr. Morris treated Mrs. Keene. Subsequently, Dr.

Harkess, an orthopedic surgeon, preformed hip replacement surgery

on Mrs. Keene's right hip. 

Plaintiffs filed an amended complaint on 7 January 1991 and

alleged that the second "fall was the direct and proximate result

of a weakened and injured left hip. . . ." In April 1992, the

court sustained Cracker Barrel's motion for summary judgment.

Plaintiffs appealed to this court. After reviewing the record,

this court held that the trial court had erred in granting the

motion. This court reversed the decision and remanded the case to

the trial court. Keene v. Cracker Barrel Old Country Store, Inc.,

853 S.W.2d 501 (Tenn. App. 1992) .

Cracker Barrel then moved for partial summary judgment

alleging that plaintiffs could not "establish, by competent expert

medical proof, that the second fall . . . was caused by a 'weakened

and injured left hip.'" In support of their motion, Cracker Barrel

relied on the depositions of Doctors Morris and Harkess taken by

plaintiffs and its Memorandum in Support of the Motion for Partial

Summary Judgment which is not part of the record on appeal. In

response, plaintiffs pointed to the deposition testimony of Mrs.

Keene, Dr. Morris, and Dr. Harkess. After hearing arguments and

reviewing the record, the trial court entered an order granting

Cracker Barrel's motion for partial summary judgment. By consent

order, the trial judge amended the order making it a final judgment

pursuant to Tennessee Rule of Civil Procedure 54.02. 

On 6 March 1995, Plaintiffs filed their notice of appeal.

Plaintiffs presented three issues on appeal. We can address all

three by determining whether the trial court erred when it granted

Cracker Barrel's motion for partial summary judgment.
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As a starting point, it is important to note that "[a]s a

general rule, negligence cases are not amenable to disposition

under Tennessee Rule of Civil Procedure 56 summary judgment

proceedings unless, from all of the facts together with the

inferences to be drawn from the facts, the facts and inferences are

so certain and uncontroverted that reasonable minds must agree."

Keene, 853 S.W.2d at 502-03 (citing Wolfe v. Hart, 679 S.W.2d 455,

457 (Tenn. App. 1984)). Thus, a court must grant a motion for

summary judgment when the moving party establishes that there is no

genuine issue as to any material fact. Byrd v. Hall, 847 S.W.2d

208, 214 (Tenn. 1993). The moving party may establish such a lack

of controversy by showing that the non-moving party is unable to

prove an essential element of the case. In other words, summary

judgment is appropriate when the non-moving party fails to

"establish the existence of an essential element to that party's

case and on which the party will bear the burden of proof at

trial." Moman v. Walden, 719 S.W.2d 531, 533 (Tenn. App. 1986)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct 2548, 91

L. Ed. 2d 265 (1986)); see also Alexander v. Memphis Indiv.

Practice Assoc., 870 S.W.2d 278, 280 (Tenn. 1994) (citing Celotex

Corp., 477 U.S. at 317). The logic behind the rule is that if a

party is unable to prove an essential element of the case then all

other factual issues are irrelevant. To explain, if a party fails

to establish proximate cause in a negligence case, then it no

longer matters whether there is a factual dispute as to breach of

duty. Alexander, 870 S.W.2d at 280; Moman, 719 S.W.2d at 533. 

The non-moving party, however, does not have the initial

burden of producing evidence as to every essential element of the

case. Armes v. Hulett, 843 S.W.2d 427, 429 (Tenn. App. 1992). In

fact, the movant "must initially produce evidence to support a

judgment. . . ." Id. at 431; see also Byrd v. Hall, 847 S.W.2d at
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211. In Armes, this court explained:

In seeking a summary judgment, the [movant] must

produce or point out evidence in the record which,

if uncontradicted, entitles [movant] to judgment as

a matter of law. If the [non-moving party] offers

no evidence to contradict such evidence, then

[movant] is entitled to summary judgment. If the

[non-moving party] offers evidence to contradict or

otherwise avoid the effect of the evidence offered

by [movant], then there is no uncontradicted

evidence to entitle [movant] to judgment as a

matter of law.

Armes, 843 S.W.2d at 429. Thus, the non-moving party must produce

evidence which contradicts the allegations asserted by the movant

in the motion, not prove their entire case in defense of the

motion. Simplifying the discussion even further, the court in

Armes used the following two questions to determine whether the

grant of summary judgment was appropriate: "(1) Did the [movant]

produce evidence which, if uncontradicted, entitle [movant] to

judgment as a matter of law; and (2) If so, is such evidence

offered by [movant] uncontradicted." Id. at 431. In this case,

the first question is: Did Cracker Barrel produce evidence which,

if uncontradicted, would prove that plaintiffs are unable to

"establish, by competent expert medical proof, that the second fall

. . . was caused by a 'weakened and injured left hip.'" The answer

is no. 

In its argument, Cracker Barrel sets forth two different

interpretations of the record, but fails to establish that

plaintiffs cannot prove their interpretation of the record. One

interpretation offered by Cracker Barrel is that osteoporosis

caused the right hip to break. To support this contention, Cracker

Barrel points to the testimony of Dr. Morris. In his 1994

deposition taken by plaintiffs, Dr. Morris testified that femoral

neck fractures are very common among post-menopausal woman that

have osteoporosis and that he thought Mrs. Keene, who is postmenopausal, had some osteoporosis. A second interpretation,
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offered by Cracker Barrel, is that the femoral neck fractured first

and then Mrs. Keene fell. This theory is supported by Dr. Morris's

testimony that femoral neck fractures can occur without trauma.

The problem with this argument is that by suggesting two

different interpretations of the same evidence Cracker Barrel

essentially concedes that there is a factual dispute. More

important, factual disputes over causation are for the jury to

decide. The court will only make such determinations when

causation is definite. Brookins v. The Round Table, Inc., 624

S.W.2d 547, 550 (Tenn. 1981). Further, the fact that there may be

other explanations does not mean that plaintiffs cannot show

causation. After all, there can be more than one cause of an

injury. See Whitehurst v. Howell, 20 Tenn. App. 314, 329, 98

S.W.2d 1071, 1081 (1936). 

Cracker Barrel points to two other pieces of evidence to

support its contention that plaintiffs are unable to prove

causation. First, Cracker Barrel points out that a fall to the

ground usually causes an intra-trochanteric fracture. Once again

Cracker Barrel quotes a portion of Dr. Morris' testimony to support

this point. The problem with the quoted testimony is that it also

reveals that a fall to the ground can result in a femoral neck

fracture. Dr. Morris explained as follows:

Q You mentioned, Doctor, that typically, when

someone falls and fractures their hip through

contact with the ground, that there is a

different type of fracture?

A Typically, that is what we call an intratrochanteric fracture.

Q Could you explain in layman's terms what that is?

A The trochanter is the part of the hip that you

can feel when you take your hand to your side and

press on your hip bone. You are feeling the

trochanter. And that is the part that hits the

ground when you fall on your hip and that is the
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part that breaks.

The femoral neck is the little connection

between the trochanter and the head of the

femur . . . . And it's the part of the bone

that takes the sheer when walking or standing

or twisting or turning, and that is when it's

most likely to fracture.

Now, you can fracture your femoral neck

by falling on your trochanter. I am sure that

happens. So, both ways could happen. 

This testimony fails to establish that plaintiffs will not be able

to prove causation at trial. In fact, plaintiffs may use this

along with Dr. Morris's other testimony to prove causation. For

example, in Dr. Morris' 1990 deposition taken by plaintiffs, he

testified that he thought within a reasonable degree of medical

certainty that "the fall caused the fracture of the [left] hip."

Note that the left hip break was a femoral neck fracture not an

intra-trochanteric fracture. Therefore, it is reasonable to

conclude that if the left hip break was the result of a fall then

the right hip break was too.

Second, Cracker Barrel argues that the "plaintiff's sole

proof on the issue of causation" is Mrs. Keene's own testimony. 

It contends that such proof is insufficient on a summary judgment

motion because it is simply a reassertion of the allegations made

in the complaint. Next, Cracker Barrel contends that plaintiffs

cannot use Mrs. Keene's testimony because it is lay opinion

testimony prohibited under Tennessee Rules of Evidence 701(a).

Cracker Barrel goes on to argue that plaintiffs can only establish

causation in this case by using expert medical proof. To support

its argument, Cracker Barrel analogizes this case with workman's

compensation and medical malpractice cases. Although Cracker

Barrel's legal contentions may be sound, it loses the argument

because Mrs. Keene's deposition testimony is not plaintiffs' only

evidence of causation. In opposition to the motion, Plaintiffs

offered the deposition testimony of Mrs. Keene, Dr. Morris, and Dr.
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Harkess.

Cracker Barrel's evidence fails to prove that plaintiffs are

unable to "establish, by competent expert medical proof, that the

second fall . . . was caused by a 'weakened and injured left hip.'"

In summary, Cracker Barrel's two interpretations prove only that

the parties can argue the facts differently and that there is a

factual dispute. Second, Dr. Morris' testimony, regarding the

different types of hip brakes, failed to prove that the fall did

not result in Mrs. Keene's right femoral neck fracture. Finally,

Cracker Barrel's attack of Mrs. Keene's testimony is irrelevant

because plaintiffs rely on additional expert medical testimony to

demonstrate causation.

In addition to the faults in Cracker Barrel's argument

listed above, there is one more worth mentioning. That is, Cracker

Barrel seems to argue that plaintiffs must establish by a

preponderance of the evidence that the weakened condition of the

left hip caused the fall and the resulting right femoral neck

fracture. Unfortunately for Cracker Barrel, while this is

plaintiffs burden at trial, it is not their burden on summary

judgment. It is not necessary for a non-moving party to try their

case at the summary judgment stage of a trial. Instead, the nonmoving party must "demonstrate, by affidavits or discovery

materials, that there is a genuine, material fact dispute to

warrant a trial." Byrd. 847 S.W.2d at 211. Further, the

determination of the issue is weighted in favor of the non-moving

party because the court "must view the evidence in the light most

favorable to the opponent of the motion, including the benefit of

every reasonable inference that can be drawn therefrom." Jones v.

Home Indemnity Ins. Co., 651 S.W.2d 213, 214 (Tenn. 1983).
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Although we concluded that Cracker Barrel was not entitled

to summary judgment, it is worth noting that plaintiffs carried

their burden of establishing the existence of a genuine issue of

material fact. Clearly there is a factual dispute. Cracker Barrel

argues that Mrs. Keene's left hip did not give way causing her to

fall to the ground. Plaintiffs, not surprisingly, argue just the

opposite. In addition, because the factual dispute "must be

decided in order to resolve the substantive claim[,]" the factual

dispute is material. Id. at 215. Finally, the material fact issue

is genuine. In Byrd, the Tennessee Supreme Court defined the term

"genuine issue." Id. The court stated, "the test for a 'genuine

issue' is whether a reasonable jury could legitimately resolve that

fact in favor of one side or the other." Id. Plaintiffs have

presented an interpretation of the evidence different from that of

Cracker Barrel. Initially, plaintiffs established through Dr.

Morris's testimony that Mrs. Keene had avascular necrosis of the

left hip. Next, plaintiffs pointed out testimony showing that

avascular necrosis is a painful condition and that Mrs. Keene had

an antalgic gait due to the pain in her left leg. Dr. Morris also

testified that when a patient favors one leg due to pain in the

other, the muscles in the favored leg begin to atrophy or waste

away. In fact, Dr. Morris went so far as to say that "[o]ne of the

things you will always see with a patient with avascular necrosis

of the hip would be some atrophy of the thigh muscle. . . ." In

the 1994 deposition, plaintiffs asked Dr. Morris if it was usual

and ordinary for a person's leg to "give way" when the person's

leg has some atrophying of the muscles, and Dr. Morris answered

yes. At the end of Dr. Morris' 1994 deposition, he testified that

the right hip break could have been the result of a fall and that

all of his opinions were within a reasonable degree of medical

certainty. Finally, plaintiffs pointed to portions of Dr.

Harkess's deposition wherein he stated that the right femoral neck
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fracture "was definitely the result of a fall" and that there was

evidence of avascular necrosis in the left hip. Disregarding

plaintiff's use of Mrs. Keene's testimony and reviewing the

evidence in a light most favorable to plaintiffs, this court is of

the opinion that plaintiffs have submitted sufficient evidence such

that "a reasonable jury could legitimately resolve that fact in

favor of one side or the other." Thus, plaintiffs established the

existence of a genuine issue of material fact.

Therefore, it results that the judgment of the trial court

is reversed, and the case is remanded to the trial court for a

trial on the merits. Costs on appeal are taxed to the

defendant/appellee, Cracker Barrel Old Country Store, Inc.

_____________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, P.J., M.S. 

_______________________________

BEN H. CANTRELL, J.