# FILED

March 31, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

ELLEN BASILY, ) ) Plaintiff/Ap

pellant, ) Davidson C ircuit ) No. 95C-3678 VS. ) ) Appeal No. RAIN, INC., and ERI-AW, INC., ) M1998-00917-COA -R3-CV ) Defendants

/Appellees. )

APPEAL FROM THE DAV IDSON COUNTY CIRCUIT COURT AT NASHVILLE, TENNESSEE THE HONORABLE THOMAS W. BROTHERS, JUDGE

For Plaintiff/Appellant : For Rain, Inc. : Joseph L. Lackey, Jr. Leonard F. Pogue, I II Lackey, Rodgers, Price & Snedeker Lisa Ramsay Co le Nashville, Tennessee Lewis, King, Krieg, Waldrop & Catron Nashville, Tennessee
For ERI-AW, Inc. : Thomas C. Co

rts Ortale, Kelley, Herbert & Crawf ord Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves a

tenant who was injured wh en she tripped over a raised sprinkler that was part of t

he automatic irrigation system of the apartmen t complex where she lived. T

he tenant fil

ed suit in the

Circuit Cour

t for David

son County against the owners of the apartments and the company that maintained the irrigation system, alleging that they left the sprinkler head in its raised p osition after

performing routine maintenance. The trial court granted both de fendants’ motions for summary judgment,

and the tenant has appealed. We have de termined that the apartment
owners and the irrigation compa n y are entitled to judgment as a matter of law and, according ly, affirm th

e summary jud

gments.

I.

In late 1994,

Ellen Basily l

ived in Nashville at t

he Autumn W

ood Apartm

ents,
alarge apartment complex located on Hickory Hi ghlands D rive. Ms. Basily, a cosmetologi stby training, was employed by a cosmetics company and was working in various Dillard’s stores in the Nash ville area. She left

Nashville in March 1995 and is currently a self-employed sing er residing in Boca Raton, Flo rida.

The apartment building at Autumn Woo d where Ms. Basily lived is separated from the parking lot by landscaping and a strip of grass. The building is connected to the parking lot by a con cret e sidewal k. This sidewalk is connected with another sidewalk that runs along the ed

ge of the pa

rking lot, forming a “T” at the intersection. As part of i ts aut omatic irrigation system, Autumn Wood had installed a sprink ler head at the intersection of the two sidewalks to the right of the sidewalk leading from the apartment building. When the sprinkler is operating, it protrudes approxima tely three to four inc

hes out of th

e ground; when it is no

t operating , it was desig

ned to return to ground level.

Autumn Wood custo

marily retain

ed Rain, In

c. to maintain its

irrigation system. On November 1 , 1994, fo ur Rain, In

c. employees were prepa ring the syst

e m for winter by removing excess water f rom the lines

to prevent the water from freezing and cracking the lines during the winter mo nths. Th ey removed the water by injecting-3-

compressed

air into the system which caused any remaining water to b e eject ed through the sprinkler he ads. In addition to pushing the water out of the system, the force of the air caused

each sprink

ler to rise ou

t of the gro

und – just as if they were operating normally. The sprinklers were designed to return to their normal groundlevel position when the air wa s turned off.

Whent he irr igation system was first instal led, it was divided into four independentzones because of the size of the apartment complex. Each of these zones operates on its own controller. On November 1, 1994, Rain, Inc.’s employees, we re working in two-person teams. One employee was stationed at th e controller

while the other employee walked around the zone to observe the sprinklers as they were being blown out. They

eventually

completed w

interiz ing all zones at the complex by approximately 11:30 a.m. on November 1, 1994.

Ms. Basily left he

r apartment a

t approxima

tely 11:00 a.m. to go to w ork at the Dillard’s in Hickory Hollow Mall. She was carrying a brief case and a shoulder bag. As she reached the intersection of the two sidewalks, s he turned to her right and then felt herself losing her balance because “somethin g had grabbed th

e top of my [

right] shoe, or an objec

t had actuall

y made cont

act with the to

p of my sho

e.” Ms. Basily

fell
on her right side, hip first, in the middle of the sidewalk running along the parking lot. Whenshe looked back, she “saw a black object projecting up out of the groun d.” This black object was the sprinkler that was still protruding from the spr inkler hea d following the winterizing of t he system. M s. Basily did not know wh at the black object was at the time and was unaware that Autumn Wood had an irrigation system even though she had

lived there for more than o ne year.
Several other

tenants assiste

d Ms. Basily to

the manager ’s office afte r she fell. From there she tooka taxi to the emergency room at Southern Hills were X-rays revealed no fractures. Bec ause she was experiencing extreme pain and nausea, she asked her la w yer to recommend a physician. The physician likewise found no fractures but treated “[t]he whole area of my body” fo r muscle spasms and “excruciating pain” using a combination of therapy and medicati

ons. Ms. Basi

ly last sought medical assistance in July 1995.-4- In October 1995, Ms. Basily filed a $300,00 0 negligen

ce action in t

he Circuit Court for Davidson County against the owners of Autumn Wood, the c orporation managing the apartments, and Rain, In c. She alleged that Rain, Inc .’s employees negligently

left the sprink l er in its raised position after they h ad completed winterizing the irrigation system and that Autumn Woo d had negl

igently faile

d to discover that the sprinkler heads had not returned to ground level following the maintenance

by Rain, Inc. Following discovery, Autumn Wood and Rain , Inc. moved for summary judgment relying u pon affidavits of their e

mployees and Ms. Basily’s deposition . Ms. Basily o pposed the

motions with

her own aff

idavit. The trial court granted both motions for summary judgment, concluding tha t the raised sprin kler head did not create a dangerous condition. Ms. Basily has appealed from this decision.

II. T HE S TANDARD OF R EVIEW

We beg in wit

h the well-settled standards governing appellate re view of summary judgments. Summary judgments are proper in virtually any civil case that
can be resolved

on the basis

of legal issues alone. See Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Tomlinson v. Kelley , 969 S.W.2d 402, 405 (Tenn.

Ct. App. 1997). They a re not, h owever, ap propriate w

hen genuin

e disputes re

garding ma

terial facts exist. See Tenn. R. Civ. P. 5 6.04. Th us, a summary ju

dgment sho

uld be gran

ted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the part y seeking th

e summary jud

gment is entitledto a judgment as a matter of law. See Eyring v . Fort Sanders Pa

rkwest Med. Ctr. , 991 S.W.2d 230, 236 (Tenn. 1999); White v. Lawrence , 975 S.W.2d 525, 529-30 (Tenn. 1998); Shadrick v. Coker , 963 S.W.2d 726, 731 (Tenn. 1998).

Unlike other dispo sitions by a tr ial court with

out a ju ry, su mmary judgm

ents do not enjoy a presumption of correctness on appeal. See Ne lson v. Ma rtin , 958 S.W.2d643, 646

(Tenn. 1997); City of Tullahoma v. Bedford Count y , 938 S.W.2d 408, 412 (Tenn . 1997). According ly, reviewin

g courts mus

tdecide anew whether the requiremen

ts of Tenn. R. Civ. P. 56 have been satisfied. See Hun ter v. Bro wn , 955 S.W.2d49, 50-5 1 (Tenn. 1 997); Mason v. Seaton , 942 S.W.2d 470 , 472 (Tenn. 199 7). We must consider the evidence in the light most favorable to the nonmoving par ty ,-5-

and we mu st resolve all inferences in the nonmoving party’s favor. See Terry v. Niblack , 979 S.W.2d 583, 585 (Tenn. 1998); Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997).

Whenreviewing the evidence, we m ust determine first whether factual d isputes exist. If a factual d

ispute exists,

we must then determine whether the f act is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue fo r tri al. See Byrd v. Hall , 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc. , 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998). A summary judgment shou ld not be gr anted if any

reasonable doubt exist

s with regard to the conclusion

s to be drawn from the evid ence. See Chrisman

v. Hill Home Dev., Inc. , 978 S.W.2d 535, 538 (Tenn. 1998).

III. L IABILITY FOR THE R AISED S PRINKLER

Ms. Basily takes issue with the summary judgment on two grounds. First, she asserts that the trial court erred by concluding that the

raised sprinkler

over which she tripped was not a dangerous condition. Second, she argues that the trial court erred by concluding that Rain, Inc. and Autumn Wood did not have a legal duty to pro

tect her from the raised sprinkler. While we have concluded that the trial court erred by concluding that the raised sprinkler was not a dangerous cond itio n, we have concluded that the trial cou

rt correctly

held that Ms.Basilyhad not established that either Rain, Inc. or Autumn W

ood were o

bligated eit

her to re move or to warn her of the sprinkler’s condition.

A.

Owners or occupiers of business pr emises are not insurer

s of their cus

tomers’ safety. See McClung

v. Delta Sq

uare Ltd. P

artnership , 937 S.W.2d 891, 902 (Tenn. 1996); Shofner v. Red Food Stores (Tenn.), Inc. , 970 S.W.2d 468, 470 (Tenn. Ct. App. 1997). They do, h owever , have a du ty to use reas onable care to protect th

eir1 See Coln v. City of Savannah , 966 S.W.2d 34, 39 (Te nn. 1998); Blair v. Campbell , 924 S.W.2d at 78; Jackson v. Bradley , 987 S.W.2d at 853. -6- customers from unrea

sonable risks of harm. See Rice v. S abir , 979 S.W.2d 305, 308 (Tenn. 1998); Hudson v. Gaitan , 675 S.W.2d 699, 703 (Tenn. 1984 ); Jackso n v. Bradley , 987 S.W.2

d 852, 85 4 (Tenn. C

t. App. 1998). This d

uty includes maintaining the premises in a reasonably safe con dition either

by removin

g or repairi

ng potentia

lly dangerous conditions

or by help

ing customer

s a nd guests avoid injury by warning them of the e xi stence of dangerous conditions that cannot, as a practical m atter, be removed or repaired. See Blair

v. Campbe ll , 924 S.W.2d 75, 76 (Tenn. 1996); Eaton v. McClain , 891 S.W.2d 587 , 593-94 (Tenn. 1994).

The courts, exe

rcising their

responsibil

ity for determining whether a legal duty exists, 1 have declined to impose a legal duty on owners and o ccupi ers of busin ess premises in two circumstances. First, they h ave declined

to impose

a duty to protect against conditions from which no unreasonable risk of harm can be anticipated. See Rice v. Sabir

, 979 S.W.2d at

309. A risk of ha

rm is unreaso

nable if the f

oreseeable probability

and gravity of the harm outweigh the burden imposed on the defendantto
en gage in alternative conduct that would have prevented the harm. See McC all v

. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995); Jackson v. Bradley , 987 S.W.2d at 854. Second, they have declined to impose a duty when the occupier neither knew about
nor could have discovered the condition in the exercise of reasonable care. See Rice
v. Sabir, 979 S.W.2d at 30 9. The existence of a

dang erous condition alone will not give rise to a duty “unless it is shown to be of such a character or o f such duration that the jury may reasonably c onclude that due care wo uld have discovered it.” Rice v. Sabir, 979 S.W.2d at 309. Thus, plaintiffs in premises liabi

lity cases must g

enerally prove that the condition

existed for such a length o f time that

the owner or occupier knew or, in the exercise of ordinary care should have known, of its exi stence. See Hardesty v. Service Merchandise Co. , 953 S.W.2d 678 , 682 (Tenn. Ct. Ap p. 1997).

B. T HE E XISTENCE OF A D ANGEROUS C ONDITION

The sprinkler h

ead itself is not dang

erous. When the sprinkler is not operating, the head and sprinkler are flush with the ground and do n ot present an obstacle that2 The president of Ra i n, Inc. testified that his employees did not customarily inspect each sprinkler head after winterizing an irrigation system and that inspecting each

sprinkler head w

ould have increase

d the cost of the wo

rk by fifteen per

cent. -7- persons walk

ing on the adjacent

sidewalks co

uld trip on . Thus, it is not reasona bly foreseeable, based on the evidence in this record, that persons walking along the sidewalks near Ms. Basily’s apartment building might tr ip over the sprinkler or sprinkler head when the sprinkler was fully retracted.

The same cannot be said for the spr inkler in its operating p

osition. Wh

en fully extended as designed, the sprinkler protrudes three to four inc

hes above g

round leve

l. In light of its narrow cylindrical shape, its dark color, and i ts p roximity to the intersection of the two sidewalk s, it is certainly foreseeable that it would go unnoticed by a passersby, especially when the irrigation system was not actually operati ng. Accordingly, it is foreseeable that a passerby might trip over th e raised sprin

kler while turning the corner f

rom one side

walk to ano

ther. It is also

foreseeable

that p e rsons who trip over the raised sprinkler could be seriously injured.
Correcting a sprinkler

that has not retracted is a r elatively simple matter. The
own er of Rai n, Inc. testified in his depositio n that pop-up sprinkler

s like the ones installedat Autumn W

ood rarely fail to retract and that

when one sticks, it will retract when someone pushes down on it with a hand or taps o n it lightly with a foot. Based
on this testimony, we conclud e that, as a ge

neral matter,

the foreseea

bility and g

ravity of the har m that could result from someone tripping over a sprinkler that has not retracted outweighs the burden

placed on th

e Autumn Wo

od and Rain, Inc. to

assure that all the sprinkler heads are retracted after winteri zing the irrigation system. 2 Accordingly, we find that the raised sprinkler immediatel y adjacent to the sidewalks
n ear Ms. Basily’s apartment building p resented an unreasonable r isk of harm

. Therefore, the trial court erred by concluding that this p articular sprinkler

was not a dangerous condition.

C.

N OTICE OF THE D ANGEROUS C ONDITION Concluding that the trial court erred by finding that the raised

sprinkler was not
adangerous condition d

oes not end our inqu

iry. When liability in cases of this so rt3 We may affirm a judgm ent u pon di fferent grounds than those relied on by the trial court when the trial court

has reached the

correct result. See Continental Cas. Co. v. Smith , 720 S.W.2d 48, 50 (Tenn. 1986) ; Kaylor v. Bradley , 912 S.W.2d 728, 735 n.6 (Tenn. Ct. App.

1995); Clark v. Metropolitan Gov't , 827 S.W.2d 312, 317 (Tenn. Ct. App. 1991).

-8- is premised on constructive notic e, the plaintiff must prove that the dangerous condition existed long enough that the defendants would have discovered and corrected it had they used due care. There can

be no liability in negligence without t his proof. Ms. Basily has not demons trated that th

e sprinkler h

ad been stuc

k in its operating position long enough to have been discovered either by Rain, Inc. or Autumn Wood. Th

us, the summa

ry judgmen

ts were appro

priate because Ms. Basily has not demonstrated that she will b e able to establish an essential elemen t of he r case. 3

R ain, Inc.’s employees were still winterizi ng the irrigation system when Ms

. Basilyleft her apar

tment on the

morning sh

e fell . Acco rding to the uncontrad icted evidence, th ey did

not complet

e their work

until 11:30

a.m., appr

oximately th

irty minutes after

Ms. Basily

fell. Without evidence regarding the sequence in which the work was performed, there is no reliable way to determine when or if the work on the
zone that included the spr inklers near Ms. Basily’s apartment ha d been completed when Ms. Basily fell. The record also contains no evidence from which a trier of fact could decide how long t

he sprinkle

r had been stuck in

its operating position. A jur y can only speculate whether it had been stuck for on

e minute or for one hou

r.

Ms. Basily h ad the burden of proving that the sprinkler had been stuck long enoughto have been discovered and corrected by either Rain, In c. or Autumn

Wood had they been exercising du e care. See Hardesty v. Service Merchandise Co. , 953 S. W.2dat 682; Ogle v. Winn-Dixie Greenville, I nc. , 919 S.W.2d 45, 46 (Te nn. Ct

. App. 1995); Chambliss v. Shoney’s Inc

. , 742 S.W.2d 271, 273 (Tenn. Ct. App. 1987). She cannot get

to the jury w

ithout this evidence. Accordingly, we hold that both Rain, Inc. and Autumn

Wood are en

tit led to a su

mmary judgment because the r ecord contains no eviden

ce regardin

g the length

of time the sprin

kler was stuck

before Ms. Basily tripped over it.-9- D. T HE D UTY TO W ARN

As a final matter, Ms. B asily arg ues that Rain, Inc. and Au tumn Wood were negligent becau se they did not warn the residents that maintenance would be performed

on the irrigation system

on November 1, 1994. She asserts that they should have distributed

fliers to the r

esidentsor that they

should have placed orange warning
cones on the sidewalks where the system was bein g winterized. We have de termined that these warnings were

not required

because neither Rain, Inc. nor Autumn Wood should have been expected

to anticipate that winterizing the irr igation system

would create an unreasonable risk of harm.

The president of Rain, Inc. testified without contradiction that spri nklers like the ones at Autu

mn Wood ra

rely fail to re

tract and tha

t he was u

naware of anyone ever tripping over a sprin kler head. He also stated that there was no standard in the industryrequiring the inspection of each sprinkler head after th

e winterizatio

n process to make sure that t

he sprinkler was returned to its normal position. Likewis e, two employees of Autumn Woo d testified that they were unaware of any reports that
someone had tripped on a sprink ler head or sprinkler at the apartment comp lex. We decline to find as a matter of law that either Ra in, Inc. or Autumn Wo

od had a du

ty to warn residents that they were winterizing the irri gation system in the absence of any proof that either party sho uld reasonably have anticipated that winterizing the irrigation system could create an unreasonable risk of harm to person s living in the apartment complex.

IV.

We affirm the summary judgments granted to Rain, Inc and Autumn Wood and remand the case to the trial court for any further necessary proceedings. We tax the costs of this appeal to Ellen Basily and her surety for which execution, if nece ssary, may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE-10-

CONCUR:

_________________________________ WILLIAM B. CAIN, JUDGE

_________________________________ PATRICIA J. COTTRELL, JUDGE