# FILED January 2, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) GORDON B URKS, ) Shelby Law No. 45888 T.D. ) Plaintiff

/Appella nt. ) ) VS. ) C. A. No. 02A01-9411-CV-00254 ) BELZ-WILSON PROPERTIES, ( a ) joint vent

ure, com prised of BELZ ) INVESTMENT COMPANY, SPENCE ) L. WILSON, ROBERT A. WILSON, ) KEMMON S WILSON, JR. , CAROLE ) A. WILSON- WEST and DOROTH Y ) W. E. MOORE), BELZ INVESTMENT ) COMPANY, INC., a corporation ) BELZ INVESTMENT COMPANY , ) a partner

ship comp rised of P

HILLIP ) BELZ, JACK A. BELZ and KEMMONS ) WILSON; WIM

BLETON ) GYMNASTICS, INC., a corporation , ) and PRIDE

CONSTRUCT ION ) COMPANY, INC. , ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable James M. Tharpe, Judge

Mark Ledbetter , Memphis, Tennessee Dan T. Bing , Memphis, Tennessee Attorney s for Plain

tiff/App ellant.
Joe D. Spicer , Marc O. Dedman , SPICER, FLYNN

& RUDSTROM, Memphis, Tennessee Attorney for D efendant/Appellee Pride Construction Company , Inc.

OPINI ON FIL

ED: AFFI RMED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)Appellan

t, Gordon Burks, (Burks) broug ht this negligence action ag ainst Appe ll ee, Pride Construction Company, I nc., (Pride) and various other defendants, in the Circuit Court of Shelb y Co un ty. Prid e's motion for summary judgmen t was gr anted an d, from th at judgm

ent, Bur ks appea ls.

On May 4, 1991, Bu rks was se riously injured w

hen he a ttempted t

o perfor m a gy mnastics maneuver from a pommel horse into a gy mnastics pit at the Wimbleton Spo rtspl ex i n Memphis. Burks f

iled suit a gainst (1) Belz -Wils on Pro

pert ies, o wner

of the Wimble ton Sp ortsp lex; (2) the individ

ual membe

rs of Be lz-Wilson Pro

perties; (3) Wimbleton Gymnastics, I nc., the lessee of the premises; and (4) Pride, the contractor which c onstructed the gy mnastics pit.

In his complaint, Burks alleged that he was injured due to the de fendants' neglige

nce in failing (1) to warn users of dang ers incident to the use of a gy mnastics rail and pit at

the premises (2) to pr operly design, construct and main tain a sa fe prem ises; and (3) to pr ovide a g ymn astics pit with adeq uate shoc k absorpt ion or depth to prev ent the se rious injur

ies sustained by

Burks.

Pride filed a motion for summary judg ment, supported by the

affida vits of William R. Eades, the President of Archeon, I nc., Robert A. Wilson, an owner of the Wi mblet

on Spo rtspl ex, and Ronald Stage, the Pres ident o f Pride. The affidavits filed by Pride contained the following undisputed assertions: Robert A. Wilson, a representat ive owner

of the Wimble ton Sp ortsp lex, retained Archeon, an architectural firm, to draw plan s for the gy mnastics pit at the Wimbleton Sport splex. The dimensions of the pit were provided by the Wimbleton Gy mnastics, Inc., the

lessee of the premises. Pride did not des ign or pa rticipat e inprepar ing th e plan s that were dr awn. P ride's work was in strict compliance with theplans andspecifications provided and was accepted by the owners of the premises after completion. Pride had no kno wledge

of the ow ners' a

ctual use of the pit, and ha

d no knowledge tha

t foam cu bicles wo uld later be placed in the pit.

In respo nse to Prid e's motion for summa ry judgme

nt, Burks filed inter alia the affida vit of Dr. Gerald S. George, Ph.D. I n his affidavit, Dr. George, an author of several articles dealing with gymnasticssafety and the de sign and

construction of g ymn astics fa cilities, stated that any entity constructing the

gy mnastics p it

at the Wimbleton Sportsple x should have

known tha

t saidpit

was creating a h azard b ecause its depth was insufficient to assure a user sa fety in gymnastics
maneu vers where substantial height would be involved. Dr. Georg e further alleged that the dimensions of the pit devi ated from the 1985 and 1990 standards of construction found in the U.S.G.F. Gymnastics Sa

fety Manua l for In-Gr

o und P its , Ch. 5, § 3, p.56-57 (1985) and p.51 (1990).

Becau se the trial court issued no findings of fact, we are unaware of its reasoning

for granting summary

judgmen t. We beg in our own

analy sis of the instant ca se by noting that a trial court should grant

a motion for summary

judgment only if the movant de monstrates that there are
no genuine issues of material fact and that the movi ng pa rt y is entitled to judgment as a matter of law. T.R.C.P. 56. 03; Byrd v. Ha ll , 847 S.W.2d 208, 21 0 (Tenn. 1993); Dunn v. Hack ett , 833 S.W.2d 78, 80 (Tenn . App. 1992) . The p arty movi ng for s ummar y judgm ent bear s the burden of demonstrating that no genuine issues of material fact exist. Byrd , 847 S.W.2d at 21 0 . When a motion for

summary judgme

nt is made, the court must consider the motion in the same manner as a motion fo

r direc ted verd

ict made a

t the close

of the plaintiff's proof; that is, the "court must take the strongest legitimate view of the evidencein favor

of the non

moving pa

rty , allow all reason able inferences in favor of th at party, and discard a ll counterv ailing eviden ce." Id . at 210-11. In Byrd , the Tennessee Supreme Court stated:

Once it is shown by the mov ing party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affida vits or discovery ma

terials, that

there is a genuine, material fact dispute to w arrant

a trial. ( Citations o mitted.) I n this reg ard, Rule 56.05 provides that the nonmoving party cannot simply

rely upon his ple adings but must set forth specific facts showing that ther e is a genuine issue of

materia l fact fo r trial.

Id. at 211 (emphasis in original).

On the record before us, it is undisputed that Pride built the gy mnastics pit in strict compliance with t he specifications drawn by Archeon and initially pr ovided by Wimbleton Sport splex. It is further undisputed that the completed g ymnastics pi t deviated from the recommendations of the U.S.G.F. Gymnastics Safety Manual for In- Ground Pits , Ch. 5, § 3, p.56- 57 (1985) and p.51 (1990). However, it is also undisputed that Pride did not know of the ultimateuse of the gy mnastics pit and did not play any part in the placement of foam pads in the pit.
Considering the evide

nce in a l ight most f

avorabl e to Burks, we are left to determine whether Pride was entitledto summary judgment a s a matter of law. Byrd , 847 S.W.2d at 210-11. Under the law in t his state, no claim for negligence c an succeed in the absence of any one of the following elements: (1) a duty of care owed by

the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a

breach of that du

ty; ( 3) an inju

ry or loss; (4) causation in fact; and (5) proximate, or legal cause. Haynes v. Hamilton Count y , 883 S.W.2d 606, 611 (Tenn. 1994); Perez v. McCon key , 87 2 S.W.2d 897, 905 (Tenn. 1994); Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn. 1993); McClenahan v. Cooley , 806 S.W.2d 767, 774 (Tenn. 1991).

Ac co rd in gl y, the thre shold ques tion in the instant ca se is w hether , on the fa cts containedin the record before us, there wa s any duty owed by Pride to B urks in reg a rd to the construction of the gymn astics pit . Whether th ere is a

duty owed by one pers on to anoth

er is a ques tion of law to be decided by the court. Dooley v

. Everett , 805 S.W.2d 380, 384 (Tenn. Ap p . 1990 ); Kelley v. Johnson , 796 S.W.2d 155, 157 (Tenn. App. 1990). Since our inquiry involves p urely a question of law, no presumption of correctness attache s to the trial court's judg ment . Carvell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995); Cowden v. So vran Bank/Central South , 816 S.W.2d 741, 744 (Tenn. 1991).

The existenc e of a duty is for the court to decide based on evidence and mixed considerations of logic, common sense and public policy. See Allen v. Bagget t , 905 S.W.2d 190, 191 (Tenn. App. 1995). A statement of the underly ing principle regarding

the imposition of a duty of care upon a party

can be found in Lindsey v. Miami Development Corp. , 689 S.W.2d 856 (Tenn. 1985):
[U]pon the fac ts in evide nce, su ch a rel ation exists between the parties that the community will impose a lega l obligation upon o n e for the benefit of others--or, more simply , whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the handsof the defendant . This is entirely a question of law, to be determinedby r

efere nce to the body of statute s, rules, principles and preced ents which make up the law; and it must be de

termined only by the court....Lindsey , 689 S .W.2 d at 85 8-59 ( quot ing W. Page Keeton, et al., Prosser and Keeton on the Law

of Torts , § 37, at 236 (5th ed. 1984)).

Johnson v. Oman Const. Co. , 519 S.W.2d 782 (Tenn. 1975) is instructive in respect to the duty owed by

Pride to Burks. In Johnson , the Ten nessee Su preme Cou

rt a bandone d th e "acc epted work" doctrine and adopted the modern view that a contrac tor has a duty to exercise a standardof reas onable

care for the protection of third parties who may f

oreseeably

be endangered by its negligence, even af

ter acceptance

of the work by the contr

actee. Johnson , 519 S.W.2d at 788.

Johnson involved a

wrongf ul death claim by parents against two municipalities and
a contractor for

the improper placement and illumination of a highway guard rail. Id. at 784. As in the pr esent case, the contractor satisfactorily and correctly

performed its work according to the contract documents and specifications. Id . at 787.

Relying on the accepted work doctrine, t he contractor filed a motion for summary judgmen t. In support of its motion, the contractor filed an affidavit, stating that the work per formed
was done pur suant to the terms of its contract and that the work had been inspected and accepted by the Tennessee Highway

Department and

the Federal Highway

Administration upon completion. Id . The trial court granted the contractor's motion, and the court of appeals affirmed. Id. at 784.

Upon review, the T enness ee Supre me Court e

xplained th at the pr

evious la w in Tennessee had been that "an independent contractor is not liable for injuries oc cu rring to a third person after the contractor ha s completed the work and it has been accepted by the owner or the employer." Id. at 788. The Court recognized, however, that a growing number of jurisdictions had adoptedthe modern vi ew that a contractor should

be held to the standard of reasonable care for the protect io n of third parties who may f oreseeably

be endangered by

his negligence, even af ter acceptance of the work by the contractee. Id. at 788. Con sequentl y, t he Court held:
[I]f an independen t c ontractor is guilty of negligence in perfor

ming h is work in such a way

that it could reasonably be fores een that

th e owner or th ir d p ar ti es wo ul d p ro ba bl y sustain personal injury or propert y damage as a res ult of th e negligent condition, then theindependent contractor should not, as a matter of law, be discharged merely because his work h as been accepted and delivered to the owner.

Id
. Applying this principle to the fa cts before it, the court reversed the grant of summary

judgment and remanded the case to trial. Id. at 789.

Pursuant to Johnson , we hold

that Pride

had a duty

to use reasonable care under the circumstances not to engage in conduct that would foreseeably

cause injury to other s. See Pittman
v. Upjohn Co. , 890 S.W.2d 425, 4 28 (Tenn . 1994); Nichols v. Atnip , 844 S.W.2d 655, 661 (Tenn. App.) (Tenn. 1992) and McCall v. Wilder , ____ S.W.2d ____ (Te nn. 1995) . We are f

aced the n with the question of whether the record before us contains facts sufficient to infer a breac h of that du ty. Typ ic al ly, the scope of a party 's duty and the breach thereof are qu esti ons for the trier o f fact. Dooley , 805 S.W.2d at 384. These questions become q uestions o f law whe

n the facts and inferences d rawn from the facts permit reasonable persons to rea ch only one conc lusion. Kelly , 79 6 S.W.2 d at 157.

Here, the record reveals that Pride wa s not awa

re of the ultimate use of the pit. Thus,
we believe that we are faced with a different situation than that fa ce d by the Johnson cou rt. In Johnson , the facts showed that a unmarked guardrail had been installed to barrica de a street that had been in use

prior to the construction of the barricade. Id . at 784. There was also evidence prese nted that infere ntially showed that the contractor knew that the gua rdrail was dangerous to motorists. Id. at 787. Consequently, reasona ble minds could have differed as to whethe r the haza rd crea ted could have been re asonably

forese eable to

the contr

actor who constru cted th e ba rricade. Therefore, summary judgme

nt was not proper.
Being unaware of the use for which the pit wasconst ructed , the p laint iff's injury was not reasonably f

oreseeable to Pride. Moreover, there is no allegation or proof that the gy

mnastics pit was in the sam e condition on the date of the accident as it was when completed. Instead, the affida vits filed by

Pride con tainthe undisputed allegations that Pride did not know of theactual u se of the pit when the pit was delivered nor did Pride know that foam pad ding wou ld later b e added

to the pit.We conclude that, unde

r these c ircumsta

nces, Pride did

not brea ch any duty owed to Burks. To find that

such a br each exis ted would

require this Court to draw several factual inferenc es not supported by the rec ord. Consequently, we hold that the tria l court properly g

ranted summary judgment in favor of Pride.

The judgment of the trial court is affir med. Costs o n appea

l are taxe d to Appellant fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

________________________________

FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)