### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE VICKI RENA TREBING v. FLEMING COMPANIES, INC.
Direct Appeal from the Circuit Court for Davidson County No. 96C643 Barbara N. Haynes, Judge

No. M1999-00473-COA-R3-CV - Decided April 28, 2000

This appeal concerns the grant of summary judgment to Defendant in a slip and fall case where the t r ial judge found that no proof was presented of direct or constructive notice of the dangerous
c ondition causing the fall. Appellant raises as issues on appeal the correctness of the summar y judgmentgrant as well

as the propriety of the trial court’s order striking certain of the opinions of Plaintiff’s exper

t.

Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.

C AIN , J., delivered the opinion of the court, in which C ANTRELL , P.J., M.S., and K OCH , J., joined.

David S. Gardner, Nashville, Tennessee, for the appellant, Vicki Rena Trebing. Alan M. Sowell, Nashville, Tennessee, for the appellee, Fleming Companies, Inc.

OPINION

Defendant

is successor in inte

rest to the original owne

r/operator of a

MegaMarket for

merly located on Gallatin Road in Nashville, Tennessee. The plaintiff was a customer of MegaMarket who slipped and fel l in t he store’s foyer in 1992. She brought suit against Defendant/ Appellee’s predecessor

ininterest on Feb. 21, 1996. Summary judgment was granted below on March 25, 1999. The plaintiff app

eals the grant of

summary judgment. Sp

ecifically, she

argues here tha

t: 1) Defendant had actual notice of the unreasonably dangerous condition of an accumulation

of water on the MegaMarket foye r floor which ca

used Plaintiff’s f

all. 2) In the alternative Defendant had constructive notice of this dangerous condition by way of the “method of operation” theory.

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3) The trial court erred in granting Defendant’s motion to strike certain portions of the opinions of Plain

tiff’s expert.

Inaddition, Plaintiff takes issue with what she interprets as an implicit finding by the trial court that Plaintiff was 50% or more at fa ult. The order sign

ed by the trial cou

rt states simply

that Defendant’s motion for summary judgment is well taken and should be granted. Inasmuch as this Courtfinds no implicit fault finding in the summary judgment order, Plaintiff’s issue in that regard will not be considered.

The standard of revi

ew which applies t

o appeals from a g

rant of summary jud

gment is well settled. Summary judgment is appropriate if the m ovant demonstrates that no genuine issues of material fact exist and that the defendant is entitled to a judgm

ent as a matter of law. Tenn. R. Civ. P. 56.03. We must take the strongest view of the evidence in favor of the nonmoving party allowing all reasonable infe

rences in favor of Plaintiff and discarding all countervailing evidence. Shadrick
v. Coker, 963 S.W.2d 726, 731 (Tenn.1998) (citing Byrd v. Hall, 847 S.W.2d at 210-11). Since our review concerns only questions of law, the trial court's judgment is not presumed correct, and our review is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). For the following reasons and under the authorities cited below, upon our de novo review we affi rm the trial court

. Summary judgment is not to be gr antedlightly. However, when a plaintiff h

as failed to establish a necessary ele

ment to the claim, su

mmary judgment i s proper since, under the facts as presented to the court, no relief is due as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 321-25, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d265 (1986) (as quoted in Byrd, supra, 847 S.W.2d at 213.) The record

before the trial court contained the depositions of the plaintiff, of MegaMarket’s manager at the time, Robert Durand, and of MegaMarket Salesclerk Ramona Dillard. In addition Plaintiff presented a copy of the incident report prepared as a result of Ms. Trebing’s fall as well as the opinions o f Plaintiff’ s expert Dr.Leighton Sissom. Consistent with the standard of review enumerated

above, we examine the entire record in a light mo st favorable to the plaintiff allowing all reasonable inferences in her favor and discarding all countervailing evidence. See Byrd v. Hall , 847 S.W.2d, at 211. Under this standard, the following facts appear of record.

On or ab out June 24, 1992, be tween the hours of

4 and 5 in the eveni

ng, Plaintif

f Vick y Trebing entered the Mega Market located a

t 1515 Gallatin Pike,

North, in Madison, Tennessee. At the time she entered the store the weather was clear. She spent between 45 and 50 minutes shopping. A sudden rainstorm o

ccurred at some

point before she started to exit the building. Water f rom this rainstorm blew into the MegaMarket’s foyer through the store’s mechanically o perate d doors. When triggered, these doors open to their full width and remain open so long as any object remains wi thin the path of their infr ared sen sors. From time to time during periods of inclement weather, MegaMarket

customers would le

ave their carts

just outside of these

mechanical doors, thereby triggering the doors to s poradically open and remain so ope

n until such time as th

e obstruction is removed. There is no proof in the record showing that MegaMarket ever-failed to remove such hazards as soon as they became aware of them or that such hazard

exited at the time Mrs. Trebing

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fell.

The foyer floor was comprised of a manufactured surface called “Stonehard.” Although this treated concrete surface was gritty when dry, it was not absorbent and thus allowed water to pool on it obscuring the natural prominences one would find on an asphault or untreated concrete surface. This pooling characteristic created an unreasonably

dangerous condition which caused Ms. Trebing to slip and

fall on t he way out of the MegaMarket on June 24. Ms.Trebing was wearing flip-flop sandals at the time, and these sandals would have provided adequate traction on a dry surface. However, when Ms. Trebing traversed theexit foyer on her way out of the store she slipped on water which had pooled on the “Stonehard” surface.

Ms

. Dillard’s deposition establishes that due to the location of the checkout lanes an d bagging stations, MegaMark et’ s cashiers had occasion to view the exit foyer. Mr. Durand’s deposition shows that thes e cashiers wou ld be at best 27-33 f eet from the exit f

oyer where Ms. Trebing fell. Although Ms. Dillard remembered seeing Ms. Trebing fall she could no t reme mber whether any store employee had been in the foyer prior to the fall. Mr. Durand testified that during periods of inclement

weather of which MegaMarket personnel were made aware, safety measures
were taken. Wet floor signs wou ld be posted. Mats would be laid in very severe weather to prevent trackage and

slippage. However, none of the proof presented in the record showed that MegaMarket employees had

been made aware of the water in the foyer prior to Ms. Trebing’s fall. Mrs. Trebing heard no thunder and was not aware that it was raining prior to her checkout and entrance into the exit foyer. There is

no evidence that any employee of MegaMarket knew that it was raining before Mrs. Trebing star

ted to leave the pr

emises.

Inessence the Plaintiff charges that the Defendant failed to maintain the MegaMarket premises in a reasonably safe condition, and/or failed to warn Ms. Trebing of a danger

the existence of which it knew, or in

the reasonable e

xercise of due c

are should have k

nown. The well

settled rule inthis jurisdicti on holds premises owners liable for injuries to business invitees resulting from dangerous conditions created by the owner or created by third parties of which conditions the owner is aware, or in the exercise of due diligence should have been aware. See Jones v. Zayre, Inc., 600 S.W.2d 730,732 (Tenn. 1980). However, even the most charitable reading of the statements of the lay witnesses fails to

reveal any such awareness on the part of the Defendant. Plaintiff would argue that MegaMarket need

not have been aware of the pooling of water on the floor as long as the event which caused this accu

mulation of water

, the sudden rains

torm, was visible to, or perceivable by Defendant. See Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 565 (Tenn. Ct. App. 1985). In that regard, Plaintiff presents the incident report filled out after Ms. Trebing’s fall by an unknown Me gaMarket

employee. That report contains the statement “a thunderstorm had just broke out. ” Plaintiff interprets this statement to place superior knowledge of the sudden rains to rm on the part of Defendant. The report does not indicate when the

thunderstorm star

ted in relation to w

hen Mrs. Trebing began her exit through the foyer.

A clear stateme

nt concerning De

fendant’s liabili

ty is as follows:

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While business proprietors

... are n ot insurers of their patrons' safety, they are required to use due care under all circumstances. Smith v. Inman Rea lty Co., 846 S.W.2d 819, 822 (Tenn.App.1992). In order for an owner or operator of premises to be held liable for negligence in

allowing a danger

ous or defective

condition to

exist on its premise

s, it must be shown that the condition (1) was caused or created by the owner, operator,
or his agent, or (2) if the condition was created by s omeone ot her than the owner, operator, or his agent, there must be actual or constructive notice on the part of the
owner or operator that the condition ex ist ed prior to the accident. Ogle v. Winn-Dixie

Greenville, Inc., 919 S.W.2d 45, 47 (Tenn.App.199 5); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.App.1980). Constructive knowledge can be shown by proving the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of such condition. Simmons v. Sears, Roebuck and Co., 713 S.W.2d 640, 641 (Tenn.1986).

Altern a tively, the notice requirement is met if the plaintiff can prove that the defendant's method of operation created a hazardous situation forseea bly harmful to others. Hale

v. Blue Boar Cafeteria Co., (Tenn.App., unpublished opinion, filed at Jackson, Feb. 21, 1980).
Martin v. Washmaster Auto Center, U.S.A., 946 S.W.2d 314 (Tenn. Ct. App. 1996).

Plaintiff fails to show that Megamarket was aware of the

condition before

Ms. Trebing fell. She additionally fails to show that the rainstorm, much less the puddle of water in question, was in existence for any significant period of t ime. Wit h evidence showing no notice, actual or constructive, Ms. Trebing must show liability via MegaMarket’s method of operaton. To this end, Plaintiff attempts to show that, by using the “Stonehard” surface in its foyer, and by allowing carts to sit out in front of the foyer, MegaMarket in essence created the dangerous condition by allowing water to blow in and

pool on the foyer floor. This “method of operation” the

ory, enunciated

most recently by this Court in Martin v. Washmaster, supra , requires a showing that the pooling of water was created by a method of operation chosen by MegaMarket. As the Court said in Hale ,
Inthese situations the questions are: (1) whether the condition created by the chosen method of operation constitutes a hazardous situation foreseeably ha

rmful to others, (2) whether the proprietor used reasonable and o rdinary care toward its invitees under these circumstances, and (3) whether the cond ition created was the direct and proximate cause of the plaintiff's injury. Hale v. Blue Boar Cafeteria Co., 1980 WL 150173, at *4 (Tenn. Ct. App.).

No creation of a dangerous condition is shown by MegaMarket’s method of operation. There is no proof in the record to sho w that this specific dangerous condition has ever occurred before. The proof fails

to establish that anyone saw or heard the storm in question until after Ms. Trebing

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fell. There is no proof that Mr. Durand or anyone else regularly allowed carts to rest in front of the automatic doors. The record shows, at best, that water which may have blo wn into the exit foyer during this sudden summer storm created an otherwise unreasonably dang erous con dition; that MegaMarket

had no actual or constructive notice of the condition; and that Ms. Trebing slipped and fell. Ms. Trebing’s action, therefore succeeds or fails on the concept of notice.

Thus we hold that Plaintif f failed to prove

a necessa

ry eleme nt of her case, i.e. notice of a dangerous condition on the part of MegaMarket. Absent such a showing, the judgment of the trial court should be and is hereby affirmed.

Plaintiff also urges t

hat the trial court improperly struck two of the three opinions of Plaintiff’s exper

t. The following opi

nions were strick

en:
1. MegaMarket, in f

ailing to maintain a

dequate protection

for its customers fromthe rainwater which periodi cally bl ew into the foyer and onto the sealed concrete foyer floor, fa iled to exe rcise reasonab le care for the

protection of its customers.

2. Mrs. Trebing exercised reasonable care in walking through the foyer on her way out of the store. The court below simply struck these opinions without enunciating a ground. Questions of the admissibility and competency of expert testimony is left to the sound d

iscretion of the tr

ial court. McDaniel

v. CSX Transportation, Inc., 955 S.W.2d 25 7, 263 (Tenn. 1997). The trial court’s determination

on such questions is only overturned on appeal where an abuseof that discretion

is shown. McDaniel, supra, at 263-64. Upon our review of the record we find no such abuse.

As a result, the trial court’s decisions with regard to expert testimony and summary judgment
are affirmed in all respects. The cause is remanded for such other proceedings as may be necessary below. Costs on appe

al are taxed aga

inst the appellant.