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

trial judge found that no proof was presented of direct or constructive notice of the dangerous

condition causing the fall. Appellant raises as issues on appeal the correctness of the summary

judgment grant as well as the propriety of the trial court’s order striking certain of the opinions of

Plaintiff’s expert.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

CAIN, J., delivered the opinion of the court, in which CANTRELL, P.J., M.S., and KOCH, 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 interest to the original owner/operator of a MegaMarket formerly

located on Gallatin Road in Nashville, Tennessee. The plaintiff was a customer of MegaMarket who

slipped and fell in the store’s foyer in 1992. She brought suit against Defendant/ Appellee’s

predecessor in interest on Feb. 21, 1996. Summary judgment was granted below on March 25, 1999.

The plaintiff appeals the grant of summary judgment. Specifically, she argues here that:

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

accumulation of water on the MegaMarket foyer floor which caused Plaintiff’s fall.

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 Plaintiff’s expert.

In addition, Plaintiff takes issue with what she interprets as an implicit finding by the trial

court that Plaintiff was 50% or more at fault. The order signed by the trial court states simply that

Defendant’s motion for summary judgment is well taken and should be granted. Inasmuch as this

Court finds no implicit fault finding in the summary judgment order, Plaintiff’s issue in that regard

will not be considered.

The standard of review which applies to appeals from a grant of summary judgment is well

settled. Summary judgment is appropriate if the movant demonstrates that no genuine issues of

material fact exist and that the defendant is entitled to a judgment 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 inferences 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 affirm the trial court.

Summary judgment is not to be granted lightly. However, when a plaintiff has failed to

establish a necessary element to the claim, summary judgment is 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.2d 265 (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 of Plaintiff’s expert Dr.Leighton Sissom. Consistent with the standard of review

enumerated above, we examine the entire record in a light most 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 about June 24, 1992, between the hours of 4 and 5 in the evening, Plaintiff Vicky

Trebing entered the MegaMarket located at 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 occurred at some point before she started to exit the building. Water from this

rainstorm blew into the MegaMarket’s foyer through the store’s mechanically operated doors. When

triggered, these doors open to their full width and remain open so long as any object remains within

the path of their infrared sensors. From time to time during periods of inclement weather,

MegaMarket customers would leave their carts just outside of these mechanical doors, thereby

triggering the doors to sporadically open and remain so open until such time as the 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 the 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 the exit 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 and

bagging stations, MegaMarket’s cashiers had occasion to view the exit foyer. Mr. Durand’s

deposition shows that these cashiers would be at best 27-33 feet from the exit foyer where Ms.

Trebing fell. Although Ms. Dillard remembered seeing Ms. Trebing fall she could not remember

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 would 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 started to leave the premises.

In essence 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 exercise of due care should have known. The well settled rule

in this jurisdiction 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 accumulation of water, the sudden rainstorm, 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

MegaMarket employee. That report contains the statement “a thunderstorm had just broke out.”

Plaintiff interprets this statement to place superior knowledge of the sudden rainstorm on the part

of Defendant. The report does not indicate when the thunderstorm started in relation to when Mrs.

Trebing began her exit through the foyer.

A clear statement concerning Defendant’s liability is as follows:
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While business proprietors... are not insurers of their patrons' safety, they are required

to use due care under all circumstances. Smith v. Inman Realty 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 dangerous or defective condition to exist on its premises,

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 someone other 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 existed prior to the accident. Ogle v.

Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47 (Tenn.App.1995); 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).

Alternatively, the notice requirement is met if the plaintiff can prove that the

defendant's method of operation created a hazardous situation forseeably 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 time. With 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” theory, 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,

In these situations the questions are: (1) whether the condition created by the chosen

method of operation constitutes a hazardous situation foreseeably harmful to others,

(2) whether the proprietor used reasonable and ordinary care toward its invitees under

these circumstances, and (3) whether the condition 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 show 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 blown into the exit foyer

during this sudden summer storm created an otherwise unreasonably dangerous condition; 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 Plaintiff failed to prove a necessary element 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 that the trial court improperly struck two of the three opinions of

Plaintiff’s expert. The following opinions were stricken: 

1. MegaMarket, in failing to maintain adequate protection for its customers

from the rainwater which periodically blew into the foyer and onto the sealed

concrete foyer floor, failed to exercise reasonable 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 discretion of the trial court.

McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 263 (Tenn. 1997). The trial court’s

determination on such questions is only overturned on appeal where an abuse of 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 appeal are taxed against the appellant.