FILED

January 2, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT JACKSON

_______________________________________________________

)

GORDON BURKS, ) Shelby Law No. 45888 T.D.

)

 Plaintiff/Appellant. )

)

VS. ) C. A. No. 02A01-9411-CV-00254

)

BELZ-WILSON PROPERTIES, ( a )

joint venture, comprised of BELZ )

INVESTMENT COMPANY, SPENCE )

L. WILSON, ROBERT A. WILSON, )

KEMMONS WILSON, JR., CAROLE )

A. WILSON-WEST and DOROTHY )

W. E. MOORE), BELZ INVESTMENT )

COMPANY, INC., a corporation )

BELZ INVESTMENT COMPANY, )

a partnership comprised of PHILLIP )

BELZ, JACK A. BELZ and KEMMONS )

WILSON; WIMBLETON )

GYMNASTICS, INC., a corporation, )

and PRIDE CONSTRUCTION )

COMPANY, INC., )

)

 Defendants/Appellees. )

)

______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.

Honorable James M. Tharpe, Judge 

Mark Ledbetter, Memphis, Tennessee

Dan T. Bing, Memphis, Tennessee

Attorneys for Plaintiff/Appellant.

Joe D. Spicer,

Marc O. Dedman,

SPICER, FLYNN & RUDSTROM, Memphis, Tennessee

Attorney for Defendant/Appellee Pride Construction Company, Inc.

OPINION FILED:

AFFIRMED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)

HIGHERS, J. : (Concurs)
Appellant, Gordon Burks, (Burks) brought this negligence action against Appellee, Pride

Construction Company, Inc., (Pride) and various other defendants, in the Circuit Court of Shelby

County. Pride's motion for summary judgment was granted and, from that judgment, Burks appeals.

On May 4, 1991, Burks was seriously injured when he attempted to perform a

gymnastics maneuver from a pommel horse into a gymnastics pit at the Wimbleton Sportsplex in

Memphis. Burks filed suit against (1) Belz-Wilson Properties, owner of the Wimbleton Sportsplex;

(2) the individual members of Belz-Wilson Properties; (3) Wimbleton Gymnastics, Inc., the lessee

of the premises; and (4) Pride, the contractor which constructed the gymnastics pit. 

In his complaint, Burks alleged that he was injured due to the defendants' negligence

in failing (1) to warn users of dangers incident to the use of a gymnastics rail and pit at the premises

(2) to properly design, construct and maintain a safe premises; and (3) to provide a gymnastics pit

with adequate shock absorption or depth to prevent the serious injuries sustained by Burks.

Pride filed a motion for summary judgment, supported by the affidavits of William

R. Eades, the President of Archeon, Inc., Robert A. Wilson, an owner of the Wimbleton Sportsplex,

and Ronald Stage, the President of Pride. The affidavits filed by Pride contained the following

undisputed assertions: Robert A. Wilson, a representative owner of the Wimbleton Sportsplex,

retained Archeon, an architectural firm, to draw plans for the gymnastics pit at the Wimbleton

Sportsplex. The dimensions of the pit were provided by the Wimbleton Gymnastics, Inc., the lessee

of the premises. Pride did not design or participate in preparing the plans that were drawn. Pride's

work was in strict compliance with the plans and specifications provided and was accepted by the

owners of the premises after completion. Pride had no knowledge of the owners' actual use of the

pit, and had no knowledge that foam cubicles would later be placed in the pit.

In response to Pride's motion for summary judgment, Burks filed inter alia the

affidavit of Dr. Gerald S. George, Ph.D. In his affidavit, Dr. George, an author of several articles

dealing with gymnastics safety and the design and construction of gymnastics facilities, stated that

any entity constructing the gymnastics pit at the Wimbleton Sportsplex should have known that said
pit was creating a hazard because its depth was insufficient to assure a user safety in gymnastics

maneuvers where substantial height would be involved. Dr. George further alleged that the

dimensions of the pit deviated from the 1985 and 1990 standards of construction found in the

U.S.G.F. Gymnastics Safety Manual for In-Ground Pits, Ch. 5, § 3, p.56-57 (1985) and p.51

(1990). 

Because the trial court issued no findings of fact, we are unaware of its reasoning for

granting summary judgment. We begin our own analysis of the instant case by noting that a trial

court should grant a motion for summary judgment only if the movant demonstrates that there are

no genuine issues of material fact and that the moving party is entitled to judgment as a matter of

law. T.R.C.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett, 833

S.W.2d 78, 80 (Tenn. App. 1992). The party moving for summary judgment bears the burden of

demonstrating that no genuine issues of material fact exist. Byrd, 847 S.W.2d at 210. When a

motion for summary judgment is made, the court must consider the motion in the same manner as

a motion for directed verdict made at the close of the plaintiff's proof; that is, the "court must take

the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all countervailing evidence." Id. at 210-11. In Byrd,

the Tennessee Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue

of material fact, the nonmoving party must then demonstrate, by

affidavits or discovery materials, that there is a genuine, material fact

dispute to warrant a trial. (Citations omitted.) In this regard, Rule

56.05 provides that the nonmoving party cannot simply rely upon his

pleadings but must set forth specific facts showing that there is a

genuine issue of material fact for trial.

Id. at 211 (emphasis in original). 

On the record before us, it is undisputed that Pride built the gymnastics pit in strict

compliance with the specifications drawn by Archeon and initially provided by Wimbleton

Sportsplex. It is further undisputed that the completed gymnastics pit 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 ultimate
use of the gymnastics pit and did not play any part in the placement of foam pads in the pit. 

Considering the evidence in a light most favorable to Burks, we are left to determine

whether Pride was entitled to summary judgment as a matter of law. Byrd, 847 S.W.2d at 210-11.

Under the law in this state, no claim for negligence can 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 duty; (3) an injury or loss; (4)

causation in fact; and (5) proximate, or legal cause. Haynes v. Hamilton County, 883 S.W.2d 606,

611 (Tenn. 1994); Perez v. McConkey, 872 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).

Accordingly, the threshold question in the instant case is whether, on the facts

contained in the record before us, there was any duty owed by Pride to Burks in regard to the

construction of the gymnastics pit. Whether there is a duty owed by one person to another is a

question of law to be decided by the court. Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn. App.

1990); Kelley v. Johnson, 796 S.W.2d 155, 157 (Tenn. App. 1990). Since our inquiry involves

purely a question of law, no presumption of correctness attaches to the trial court's judgment.

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995); Cowden v. Sovran Bank/Central South, 816

S.W.2d 741, 744 (Tenn. 1991). 

The existence 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. Baggett, 905 S.W.2d 190,

191 (Tenn. App. 1995). A statement of the underlying 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 facts in evidence, such a relation exists between the

parties that the community will impose a legal obligation upon one

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 hands of the defendant. This is entirely a question of law, to be

determined by reference to the body of statutes, rules, principles and

precedents which make up the law; and it must be determined only

by the court....
Lindsey, 689 S.W.2d at 858-59 (quoting 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 Tennessee Supreme Court abandoned the

"accepted work" doctrine and adopted the modern view that a contractor has a duty to exercise a

standard of reasonable care for the protection of third parties who may foreseeably be endangered

by its negligence, even after acceptance of the work by the contractee. Johnson, 519 S.W.2d at 788.

Johnson involved a wrongful 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 present 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, the contractor filed a motion for summary

judgment. In support of its motion, the contractor filed an affidavit, stating that the work performed

was done pursuant 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 Tennessee Supreme Court explained that the previous law in

Tennessee had been that "an independent contractor is not liable for injuries occurring to a third

person after the contractor has 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

adopted the modern view that a contractor should be held to the standard of reasonable care for the

protection of third parties who may foreseeably be endangered by his negligence, even after

acceptance of the work by the contractee. Id. at 788. Consequently, the Court held: 

[I]f an independent contractor is guilty of negligence in performing

his work in such a way that it could reasonably be foreseen that the

owner or third parties would probably sustain personal injury or

property damage as a result of the negligent condition, then the
independent contractor should not, as a matter of law, be discharged

merely because his work has been accepted and delivered to the

owner. 

Id. Applying this principle to the facts 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 others. See Pittman

v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994); Nichols v. Atnip, 844 S.W.2d 655, 661 (Tenn.

App.) (Tenn. 1992) and McCall v. Wilder, ____ S.W.2d ____ (Tenn. 1995). We are faced then with

the question of whether the record before us contains facts sufficient to infer a breach of that duty.

Typically, the scope of a party's duty and the breach thereof are questions for the trier of fact.

Dooley, 805 S.W.2d at 384. These questions become questions of law when the facts and inferences

drawn from the facts permit reasonable persons to reach only one conclusion. Kelly, 796 S.W.2d

at 157. 

Here, the record reveals that Pride was not aware of the ultimate use of the pit. Thus,

we believe that we are faced with a different situation than that faced by the Johnson court. In

Johnson, the facts showed that a unmarked guardrail had been installed to barricade a street that had

been in use prior to the construction of the barricade. Id. at 784. There was also evidence presented

that inferentially showed that the contractor knew that the guardrail was dangerous to motorists. Id.

at 787. Consequently, reasonable minds could have differed as to whether the hazard created could

have been reasonably foreseeable to the contractor who constructed the barricade. Therefore,

summary judgment was not proper. 

Being unaware of the use for which the pit was constructed, the plaintiff's injury was

not reasonably foreseeable to Pride. Moreover, there is no allegation or proof that the gymnastics

pit was in the same condition on the date of the accident as it was when completed. Instead, the

affidavits filed by Pride contain the undisputed allegations that Pride did not know of the actual use

of the pit when the pit was delivered nor did Pride know that foam padding would later be added to

the pit.
We conclude that, under these circumstances, Pride did not breach any duty owed to

Burks. To find that such a breach existed would require this Court to draw several factual inferences

not supported by the record. Consequently, we hold that the trial court properly granted summary

judgment in favor of Pride.

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

for which execution may issue if necessary.

________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

HIGHERS, J. (Concurs)