# 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. L EWIS, JUDGE-2- 

# O P I N I O N This is an appeal by plaintiffs/appellants, Gloria and EdwardKeene, 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 ledto 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 lef t 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.

Ov er the next few years, Mrs. Keene developed avascular necrosis in her l eft hip. T his condition causes the head of the femur or the ball of the hip to die because of an insufficient supplyof blood. As the bone dies, the hip collapses. In addition to the bone dying, the cartilage dies. The death of the cartilage
causes a gre at 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
ona 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 ab out to g et down her left leg collapsed and she fell. As a result of the fall, she broke her right femoral neck.-3-

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 inju red left hip . . . ." In April 1992, the court sustained Cracker Barrel's mo tion for summary judgment. Plaintiffs appealed to this cou rt. After reviewing the record, this court held that the trial court had err ed i n 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, bycompetent expert medical proof, that the second fall . . . was caused by a 'weakened andinjured left hip.'" Insupport of their motion, Cracker Barrel reliedon the depositions of Doctors Morris and Harkess taken by plaintiffs and its Memorandum in Support of the Motion for Partial SummaryJudgment which is not part of the record on appeal. In response, plaintiffs pointed t o th e deposition testimony of Mrs. Keene, Dr. Morris, and Dr. Harkess. After hearing arguments and reviewing the record, the trial court entere d a n 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.

On6 March 1995, Plaintiffs filed their notice of ap peal. 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.-4- As a starting point, it is importa nt to note that "[a]s a genera l ru le, 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 mind s 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 summaryjudgment 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 o ther words, summary judgment is appropriate when the n on-m oving party fails to "establishthe exist ence o f 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 log ic behind the rule is that if a partyis 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 par ty , 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-5-

211. In Armes , this court explained:

Inseeking a summary j u dgment, 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 th e [non-moving party] offers evidence to contradict or otherwise avoid the effect of the evidence offered by[movant], then there i s no u ncontradicted evide nce 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 t h e motion. Simplifying the discussion even further, the court in Armes used the fo llo wing two questions to determine whether the grant of summary judgment was appropriate: "(1) Did the [movant] produce evidence w hich, if uncontradicted, entitle [movant] to judgment as a matter of law; and (2) If so, is such e videnc e offe redby [movant] uncontradicted." Id. at 431. In this case , the first question is: Did Cracker Barrel produce evidence which, if unc ontradicted, 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.

Ini ts argument, Cracker Barrel sets forth two different in terp retations of the record, but fails to establish that plaintiffs canno t prov e their interpretation of the record. One interpretationoffered by Cracker Barrel is t ha t osteoporosis causedthe right hip to break. To support this contention, Cracker Barrel points to the testimony of Dr. Morris. I n 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 postmenop ausal, had some osteoporosis. A second interpretatio n ,-6-

offeredby Cracker Barrel, is that the femoral neck fractured first andthen 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 s ame evidence Cracker Barrel essentiallyconcedes that there is a factual dispute. More important, factual disputes over causation are for the jury to decide. The court will only make such d eterminations when causationis definite. Brookins v. The Round Table, Inc. , 624 S.W.2d547, 550 (Tenn. 1981). Further, the fact that there may be other explanations does not mean that plaintiffs c anno t show causation. After all, there can be more than one cause of an injury . See Whitehurst v. Howell , 20 Tenn. App. 314, 329 , 9 8 S.W.2d 1071, 1081 (1936).

Cracker Barrel points to two other pieces of evidence to support its contenti on t hat plaintiffs are unable to prove causation . First, Cracker Barrel points out that a fall to t h e 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 w it h the ground, that there is a different type of fracture? A Typ ically, that is what we call an int ra trochanteric fracture. Q Could you explain inlayman's terms what that is? A The trochanter is the part of the hip that you canfeel when you take your hand to your side and press on your hip bone. You are fe eli ng the trochanter. And that is the part that hit s the groundwhen you fall on your hip and that is the-7- part that breaks. The femoral neck is the little connection betweenthe trochanter and the head of th e 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 byfalling 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 te stified that he thought within a reasonable degree of medica l certaintythat "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. There fore, 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 "p lainti ff's sole proof on the issue of causation" is Mrs. Keene's own te stimo ny. It contends that such proof is insufficient on a summary judgment motion because it is simply a reassertion of the allegations made inthe complaint. Next, Cracker Barrel contends that pla intiff s cannot use Mrs. Keene's testimony because it is lay opinion testimonyprohibited under Tennessee Rules of E viden ce 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 thi s case with workman's compensationand medical mal pr actice 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, Plain tif fs offeredthe deposition testimony of Mrs. Keene, Dr. Morris, and Dr.-8-

Harkess.

Cracker Barrel's evidence fails to prove that plaintiffs are unable to "establish, by competent expert medical proof, that the secondfall . . . was caused bya 'weakened and injured left hip.'" Insummary, Cracker Barrel's two interpretatio ns p rove only that the parties can argue the facts differently and that t here is a factual dispute. Second, Dr. Morris' testimony, r egar ding the different types of hip brakes, failed to prove t hat t he 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.

Inadditio n to the faults in Cracker Barrel's argument listedabove, there is one more worth mentioning. That is, Cracker Barrel seems to argue that pla int iffs must establish by a preponderance of the evidence that the weakened condit ion of the left hip caused the fall and the resulting right femoral neck fracture. Unf ortunately 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 theircase 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 disput e t o 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 everyreasonable inference that can be drawn therefrom." Jones v. Home Indemnity Ins. Co. , 651 S.W.2d 213, 214 (Tenn. 1983).-9- Althoughwe concluded that Cracker Barrel was not entitled to summary judgment, it is worth noting that pla intiffs 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 dis pute "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 hav e presentedaninterpretation of the evidence different from that of Crack er Barrel. Initially, plaintiffs established through Dr. Morris's t estimo ny 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
anantalgic gait due to the painin her left leg. Dr. Morris also testified that when a patient favors one leg due to pain in the other, the muscle s in the f avored 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 andordinary 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 portion s of Dr. Harkess's depositionwherein he stated that the right femoral neck-10-

fracture "was definitely the result of a fall" and that there was evidence of avascular necrosis in th e 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 jur y 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.