# FILED April 6, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) ESTATE OF CARLISIA TONEY, ) Shelby County Circuit Court a minor, by next fri

end, parent and ) No. 70135-6 T.D. guardian, VERONICA M . TONEY, and ) VERONICA TONEY, Indiv idually , )

) Plaintiffs/Appella

nts. )

) VS. ) C.A. No. 02A01-9801-CV-00005 ) BILL CUNNINGHAM, MRS. BILL ) (ARDIA) CUNNIN

GHAM, PERCY L. ) WARD and MRS. PERCY L. (MARY) ) WARD , ) ) Defendants/App

ellees. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable George H. Brown, Jr., Judge
John E. Dunlap , Memphis, Tennessee Attorney fo

r Plaintiffs/Appe

llants. Robert L. Moore, Michael E. Keeney , THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHEL L, Memphis, Tennessee Attorneys f

or Defendants/A

ppellees Bill Cunn

ingham and Mrs. Bill (Ardia) Cunning ham.
Warren D. McWhirter , McWHIRTER & WYATT, Memphis, Tennessee Attorney for Defendants/Appellees Percy L. Ward and Mrs. Percy L . (Mary) Ward.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)1 Apparently, the failure to serve Mr. and Mrs. Ward occurre d because the address listed on the process issued to them was incorrect. The Wards’ home is located at 4351 Alice Drive. On the process issued to Mr. and Mrs. Ward, however, their address is listed as 4357 Alice Drive. In this wrongful death action, the trial court granted a motion to quash process and dismiss complaint filed by Defendants Percy and Mary Ward. Additionally, the trial court granted
a motion for summary j udgment filed by De fendants Bill and A

rdia Cunningham.

Plaintiff Veronica Toney appeals the rulin

g of the trial cour

t r egarding the motio

n to quash process

and dismiss complaint as well as the motion for summary judgment. For the reasons set forth below, we affirm the judgment of the

trial court.

Factual and Procedura l History

On Friday, May 27, 1994, Veronica Toney took her nineteen mo nth old daughter Carlisia to the home of the Wards, the child’s paternal grandparents. Mrs. Ward had agreed to care for Carlisia during that weekend while Ms. Tone y was at work. On Sunday, May 29, 1994, the Wards took Carlisia to a Memorial Day celebration at the home of the Cunninghams. After dinner, Carlisia fellasleep i n Mrs. Ward’s lap. Carlisia subsequently woke up and started to play. Sometime

thereafter, Mrs. Ward

took Carlisia to one of the bedrooms in t he Cunninghams’ hom

e andput her down for a

nap. Mrs. Ward th

en went outsid

e to watc h some of the other guests play tennis in the Cunninghams’ back yard. Ontwo or three occ asions, Mrs. Ward

returned to the ho

use to check on Carlisia, each time finding that the child was asleep. During the tennis match, a ball was hit over the fence

that surrounds the

tennis court. As Mr. War d’s brother Andr

e attempted to

retrieve the ball, he noticedthat Carlisia was floating face down in the water. Carlisia was pulled out of the water, given CPR, and rushed to the hospital, where she subsequently died.

On May 26, 1995, Ms. Toney filed a wrongfuldeath actionagainst the Wards and the Cu nningham s. Although process was issued to the Wards on this same date, it was returned unserved on June 16, 1995. 1 On March 20, 1996, counsel for the W ards telephoned

counsel for Ms. Toney and requested a

dditional time to ans

wer Ms. Toney’s complaint. During this conversation, it was agreed that

the Wards would f

ile an answer to Ms. T oney’s complaint a nd that no default judgmentwould be sought or taken against the Wards. On May 22, 1996 , cou nsel for the Wardsfaxed

and mailed a

letter to counsel for Ms. Toney stating that the Wards had not been served with process. Thereafter on July 2, 1996, pr ocess was again i ssued to the Wards . An answer to Ms. Toney’s complaint was file d by the Wards on Ju

ly 17, 1996. The Wa

rds t he n filed three motions to quash the process that was served on them and to dismiss the complaint. Additionally, the Cunninghams

filed a motion for s

ummary judgment.

The trial court granted

both the Wards’ motion to quash summons and dismiss complaint and the Cunninghams’ motion for summary judgment and Ms. Toney appeals.
Motion to Quash Summons and Di smiss Complaint

We first consider whether the trial court erred in granting the Wards’ motion to quash the process that was served on them and dismiss Ms. T

oney’s complaint.

Because this issue involves
a question of law, our scope of review is de novo with no presumption of correctness accompanying the trial cou r t’s legal conclusions. See Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993); Tennessee Farmers M ut. Ins. Co. v. Moore , 958 S.W.2d 759, 763 (Tenn. App. 1997); T.R.A.P. 13(d). In the case at bar, the trial court found that, in attempting to serve the Wards with process, Ms. Toney failed to comply with Rule 3 of the Tennessee Rules of Civil Procedure. On the date that Ms. Tone

y filed her compla

int, Rule 3 provided

as follows:

All civil actions are commenced by filing a com plaint and summons with the clerk of the court. An action is commen ced within the meaning of any stat u te of limitations upon such filing of a complaint and summons, whether proces s be issued or not issued and whether process be returned served or unserved. If

processremains unissued for 30 days or i

f pro cess is not served or is not returned within 30 days from issuance, regardle ss of the reason, the plaintiff cannotrely upon the original c ommencement totoll the running of a statute of limitations un less the plaintiff ei

ther: (1) continues the act ion by obtaining issuance of new process within 6 months from issuance of the previous

process or, if no pro cess issued, within 6 mon ths from the filing of the complaint and summons, or (2) recommences the ac

tion within 1 year from issuance of the original process or, i

f no process issued, within 1 year from the filing of the original c

omplaint and summons.2 Effective July 1, 1995, subsequent to the filing of Ms. Toney’s c omplaint, this provision was amended to eliminate the language regarding re commencement of the action and to extend the reissuance period from six months to one year. See 1995 Advisory Comments to T.R.C.P. 3. Currently, R

ule 3 provides as f

ollows: All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 30 days or is not served within 30 days from issuance, r egardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issu

ed, within one y

ear of the filing

of the complaint. T.R.C.P. 3. This amended version of Rule 3, however, may not be applied retrospectively to the case at bar. See Gregory v. McCulley , 912 S.W. 2d 175, 177 n.3 (Tenn. A pp. 1995)( citing Yancy v. Yancy , 52 Tenn. (5 Heisk .) 353, 363-64 (Te

nn. 1871); Collier v. Memphis Light, Gas & Water Div. , 657 S.W.2d 771, 775 (Tenn. App. 1983)).

3 Ms. Toney co

ncedes that she d

id not obtain timely

service of proc

ess on the Wards.
4 Ms. Toney al

so appears to sug

gest that the War

ds should be estoppe

d from raising th

is defense simply

because they

had actual notice

of Ms. Toney ’s lawsuit. In support of this position, Ms. Toney relies on the ruling of our supreme court in Henley v. Cobb , 916 S.W.2d 915 (Tenn. 1996). In Henley , the court stated that an important factor when considering the applicability of Tennessee’s savings statute is whether the defenda nt had notice of the plaintiff’s original action. See id . at 917. Henley does not, however, stand for the proposition that actual notice may s

erve as a substitu

te for service o

f process. Havin

g found no other a

uthority to sup por t th is c ont ent ion , we rej ect thi s ar gume nt o f Ms . To ney. T.R.C.P. 3 (emphasis added). 2 The process issued to the Wards was returned unserved. Thus, Ms. Toney was required by R

ule 3 toeither (1) obtain new process within six months of the issuance of the original process or (2) refile the action within one year of the date that the original process was issued. Although new proc ess was issued to the

Wards on July 2, 1996, this occurred more than six months after May 26, 199 5, the date on whic

h the original proc

ess was i ssued to the Wards. Additionally, Ms. Toney did not re file her cause o

f action against th

e Wards. Thus, we agree w ith the trial court

that the Wards we

re not served with

process in

accordance with the requirements of Rule 3. 3
Desp ite her failure to obtain timely service of process on the Wards, Ms. Toney contend s that, under the do ctrine of equita

ble estoppel, the W

ards should be pre

cluded from asse

rtin g lack of service as a defense. 4 Specif ically, Ms. Toney argues that the March 20, 1996 agreement betweenher attorney and counsel for the Wards expressed an i ntent on the part of the W ards to proceed with the lawsuit, even though they had not been served with process. Ms. Toney further argues that she relied, to her detriment, upon the intent expressed by this agreement.The doctrine of equit able estoppel is ge

nerally disfavored under Tennessee law. See, e.g., Sexton v. Sevier Count y , 94 8 S.W.2d 747, 750 (Tenn. App. 1997)(citing ACG, Inc. v. Southeast

Elevator, Inc. , 912 S.W.2d 163, 170 (Tenn. App. 1995) ; Robins on v. Tennes see Farmers Mut. Ins. Co. , 85 7 S.W.2d 559, 563 (Tenn. App. 1993)). The party attempting to invoke the doctrine of equitable esto

ppel has the burde

n of proving each

of its essential elements. See id. at 751 (citing ACG , 912 S.W.2d at 170; Robinson , 857 S.W.2d at 563; Bokor v. Holder , 722 S.W.2d 676, 680 (Tenn. App. 1986)

). With respect to

the party to be est

opped, these

elements include

as follows:
(1) Conduct which amou

nts to a false

representation or

concealment of material facts, or, at least, which is calculated to co nvey the impression that the facts are otherwise than, and inconsistent with, those which the pa

rty subsequently a

ttempts to assert; (2) Intention, or at least expecta

ti on that such conduct shall be acted upon by the otherpa rty; [and] (3) Knowledge, actual or constructive of the real facts.

Werne v. Sanderson , 954 S.W.2d 742, 745 (Tenn. App. 1997)(quoting Consumer Credit Union v. Hite , 801 S.W.2d 822, 825 (Tenn. App. 1990)). Additionally, with respect to the party invoking the doctrine, these e

lements include a

s follows:
(1) his or her lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) his or her reliance

upon the conduct of

the party who is

estopped; and (3) action by the invoking party based thereonof such a character as to change that party’s position prejudicially.

Sexton , 948 S.W.2d at 751 (citing ACG , 912 S.W.2d at 170; Robinson , 857 S.W.2d at 563; Gitter
v. Tennessee Farmers Mut. Ins. Co. , 450 S.W.2d 780, 783 (Tenn. App. 1969)). See also Werne, 954 S.W.2d at 745-46.

In the i nstant case , we do not think that the actions of counsel for the Wards amountedto a false representation or concealment of material facts. Nor do we think that this conduct was calculated

to convey the impression that the facts were in any way different from t

hose subsequently

asserted by the W

ards. The Wards

did not agree to wa

iv e service of process or to waive any defense based on the statute of limitations. Rather, the Wards simply agreed to file an5 Process was originally issued to the Wards on May 26, 1995. Thus, unde r Rule 3, the last day on which Ms. Toney could refile he r action against the Wards and still rely on the original filing date for purposes of the statute of limitations was May 26, 1996. The notification regarding lack of service occurred four day s prior to this date on May 22, 1996. answer to Ms. Toney’s complaint. Consistent with this agreement, an answer was filed by the Wards
on July 17, 1996. Additio nally, there is

no evidence that, in agreeing to answer Ms. Toney’s complaint, the Wards intende d to induce Ms. Toney in

to allowing the statute of limitations to expire. On the con trary, in a letter dated May 22, 1996, counsel for the W ards notified cou

nsel for Ms. Toney that the Wards had not been served w

ith process. On the date that this notification occurred, Ms. Toney could

have timely refiled her action against the Wards, thus allowing her to rely on the date of her original c

omplaint for purposes of the statute o f limitations. 5 Fin ally, ther e is no indication that Ms. Toney did not know or have the ability to discover that the Wards had not been served with process. Although under no obligation to do so, counsel for the Wards notified counsel for Ms. Toney of this fac

t. Even absent this no

tification, howev

er, Ms. Toney or he

r counsel could have readily discovered that the Wards had not been served with process.

As discussedabove, wefind that Ms. Toney has failed to prov

e the essential e

lements of the doctrine of equitable estoppel. Thus, having also found that Ms. Toneyfailed to comply wi th the requirements of Rule 3, we hold that the trial court properly granted the Wards’ motion to quash the process served on them and dismiss Ms. Toney’s complaint.

Summary Judgment

We next consider whether the trial court erred in granting the Cunningham’s motion for summary judgment. Summary judgment is approp riate only if the party seeking summary judgmentdemonstrates that there are no genuine issues of

material fact and further shows that, under the undispute d facts, the moving party is entitled to a judgment as a matter of law. See White v. Lawrence , 975 S.W.2d 525, 528 (Tenn. 1998)(citing Byrd v. Hall, 847 S.W .2 d 208, 210 (Tenn. 1993)). When ruling on a motion for summary j udgment, the court must view the evidence in the lightmost favorable to

the party opposing the motion, drawing all reasonable inferences in favor of the nonmoving party and discarding all counterv ailing evidence. See id. at 529 (citing Byrd , 847S.W.2d at 210-11). If there is a dispute as to any material fact or any doubt as to the c

onclusion to be drawn from the evidence, the motion must be denied. See Dooley v. Eve rett , 805 S.W.2d 380, 383 (Tenn. App. 1990)(citing Phillips v. Pittsburgh Consol. Coal Co. , 541 S.W.2d 411, 413 (Tenn. 1976)). Because this is solely a legal determination, our review of the trial court’s ruling on a motion for summary judgme nt is de novo with no presumption of correctne ss. See Wh ite , 975 S.W.2d at 528-29 (citing Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997)).

In the instant case, Ms. Toney first alleges that the Cunni nghams are li able for the wrongful death of

Carlisia un der the theory of common law negligence. Specifically, Ms. Toney contends that the Cunningham s were negligent in failing to takesteps to insure that Carlisia did not go in or around the swimming pool, in failing to warn the Wards that the swimming pool posed a danger to Carlisia, and in fa iling t o watch or instruct someone to watch Carlisia or the swimming pool. In order to

recover under this legal theory, the plaintiff must prove (1) that the defendant owed
a duty of care to the plaintiff, (2) that the defendant breached this duty, (3) that the plaintiff sustained
an injury, (4) that the

conduct of the de

fendant was the c

ause in fact of the plaintiff’s injury, and (5), that the conduct of the

defendant was th

e proximate

or legal cause of the plaintiff’s injury. See, e.g., Coln v. City of Savannah , 966 S.W.2d 34, 39 (Tenn. 1998)(citing Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn. 1993 ) ). Thus, we must first consider the question of duty. The existence or nonexistence of

a legal duty is entirely a question of law and thus should be determined by the trial court, without the assi stance of a jury. See, e.g., Blair v. Campbell , 924 S.W.2d 75, 78 (Tenn. 1996).

Prior

to the adoption of comparative fault, Tennessee law imposed a

duty on owners andoccupiers of lan

d to exer cise reasonable

care under the

circumstances f

or the safety of t

hose lawfully on their property. See, e .g., Eaton v. McLain , 891 S.W.2d 587, 593 (Tenn. 1994). Includedin this duty was the respo nsibility to either remove or warn against any latent or hidden dangerous conditions on the premises of which the owner or o ccupier was or should have been
aware. See id. at 594 (citations omitted); Smith v. Inman Realty Co. , 846 S.W.2d 819, 823 (Tenn. App. 1992). However,

owners and occu

piers of land did no

t have a duty to rem

ove or warn aga

inst dangerous conditions on their property that were open and obvious. See, e.g., Eaton , 891 S.W.2dat

595 (citations omitted). In Coln v. City of Savannah , 966 S.W.2d 34 (Tenn. 1998), the Tennessee Supreme Court recently considered whether and t o what extent this so called “open and obvious rule” remains via

ble after th

e adoption of comparative fault in Tennessee. See id. at 36. After discussing the approaches taken by other jurisdictions that have adopted the doctrineof comparative fault, the court in Coln held as follows:

That a danger to th

e pl aintiff was “open or obvious” does not, ipso facto , relieve a defendant of a duty of care. Instead, the dut y issue must be analyzed with regard to foreseeability an d gr avity of harm, andthe feasibility and availability of alternative con

duct that would have prevented the harm. . . . [I]f the f o reseeability and gravity of harm posed from a

defendant’s conduct, even if “open and obvious,” outweighedthe burden on the def e ndant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care.

Id. at 43 . The court then addressed the argument that its ruling would prevent trial courts from granting motions for summary judgment or directed ve rdict in premises liability cases, stating as follows:
By retaining the separate analysis of duty, and not totally subsuming all cases by

applying compara tive fault, the mechanisms of summary judgment and directed verdict remain viable to evaluate cases at preliminary stages in the proceedings. A summary judgment remain s approp riate, for example, where the plaintiff has not produced sufficient evidence to meet the “duty” component, or any other component of a negligence claim, as a matter of law.

Id. at 44 (citing Byrd , 847 S.W.2d at 208).

Applying the rule set forth in Coln to the facts of the case at bar, we recognize that
an uncovered swimmin

g pool poses a signif

icant risk of harm to a ninete

en month old child. Under the facts of the instant

c ase, however, we do not think that the particular injury experienced by Carlisia was foreseeable to the Cunninghams. At the time of the accide nt, Carlisia was under the supervision of Mrs. Ward. On at leas t two or three occ

asions, Mrs. Ward

went inside the hou

se to check on Carlisia, eachtime finding that the child was sleeping. Additionally, the Cunninghams and several of their guests we

re on or near the

tennis court when the accident occurred. From the tennis court, the swimming pool is e asily visible. Unde

r these circumsta

nces, it was unlikely that Ca

rlisia would open the back door, walk to t he swimming pool, and fall into the swimming pool withoutbeing seen or heard by the Cunning hams or one of t heir guests. In addition to foreseeability and

gravity of harm, we must al

so consider the fe

asibility and availability of alternative conduct on the part of the Cunninghams

that could have prevented the harm incurred by Carlisia. Ms. Toney argues that the Cunningh ams shou ld have warned th e Wards that the s

wimming pool posed a

danger to Carlisia. We think, however, that the danger posed by the swimming pool was so obvious that the giving of such a warn ing would have been superfluous. Additionally, Ms. Toney argues that the Cunninghams

should have watched or instructed someone to watch Carlisia or the swimming pool at all times. The Cunninghams knew that Carlisia was in the care of he r grandmother, Mr

s. Ward, and had every right to believe and expect that she would supervise her granddaughter.

Balancing the factors discu ssed above, we do not think that the foreseeability and gravity of harm

posed to C arlisia by the Cunningham’s swimming pool outweighed the Cunninghams’ burden to engage in alternative conduct to avoid the harm. Thus, we find as a matter of law that the Cunninghams did not owe a duty of care to C arl isia. Accordingly , because Ms. Toney has not set forth sufficient evidence to establish the duty element of her common law negligence claim, we hold that the trial court properly granted the Cunni nghams’ motion for summary judgment with respect to this theory of recovery.

Ms. Toney also alleges that the Cunninghams are liable for the wrongfu l death of Carlisia under the theory of negligence per se. Specifically, Ms. Toney contends that they violated section 3408.3 of

the Memphis and She

lby County

Building Code which,

on the date of the a

ccident, provided as follow

s:
Every person owning land on which aswimming pool is situated shallerect and

maintain thereon an adequate enclosure, surrounding either the property or pool area, sufficient to make such swimming pool inaccessible to small children. Any swimming pool containing 48 inches or more water in depth at any p oint shall be located in a yardhaving an adequate enclosure, surrounding either the property or pool area, sufficient to make such swimming p ool inaccessible to children. Such en

closures, includi

ng gates therein,

must be not less than 4 feet above the u nderlyin g grounds: all gates must be selflatching with latches placed 4 feet above the underlying ground, or otherwise made inaccessible from the outside to small children. A natural barrier, pool cover, or other protective device approved by the Building Official may be used so lon g as the degree of protection afforded is equivale

nt to the enclosure, gate, and latch described herein.6 Effective Januar y 1, 1996, this

provision was ame

nded and now rea

ds as follows: Every person owning land on which a swimming pool is situated shall erect and maintain thereon an adequate enclosure, surrounding either the property or pool area, sufficient to make such swimming pool inaccessible to small children. Any swimming pool containing more than 18 in. water in depth at any point shall be located in a yard having an adequate enc losure, surrounding either the property or pool area, sufficient to make such swimming pool inaccessible to children. Such enclosures, including gates therein, must be not less than 4 feet above the underlying grounds; all gates must be self-latching with latches placed 4 feet above the underl

ying gro und, or otherwise

made inaccessib

le from the outside

to small children. A natural barrier, pool cover, or other protective device approved by the Building Official may be used so long as the degree of protection afforded is equivalent to the enclosure, gate, and latch described herein. Joint Bldg. Code of Memphis and Shelby County § 3708.3 (1998). Joint Bldg. Code of Memphis and Shelby County § 3408.3 (1994). 6

In the instant case, there is no dispute regarding the physical characteristics of the Cunninghams’ property. The Cun ninghams’ swimmi

ng pool is located approximately thirty feet north of their house. There is no fence immediately surrounding t he swimming pool. East of the swimming pool is a tennis court, which is surrounded by a twelve to fifteen foot chain-linked fence. The entire back yard, including the swimming pool, is surrounded by a w

ooden privacy fe

nce with
a wrought iron entr

ance gate. Thus,

th ere are two ways to enter the Cunninghams’ back yard, through the back door of the house and through the entrance gate.

We now consider whe

ther, under the u

ndispute d facts of

the case at bar, the Cunninghams

violated section 3408.3 of the Memphis and Shelby County Building Code. In construing this

provision, we must a

ttempt to ascerta

in and give effec

t to the intent of its dra

fters, looking pri mar ily to the natural and ordinary meaning of the words used. See, e.g., Browder v. Morris , 975 S.W.2d 30 8, 311 (Tenn . 1998). Under the express language of section 3408.3, the Cunn inghams were required to “erect and maintain [on their land] an adequate enc losure , surrounding either the property or pool area , sufficient to make such swimming p

ool inaccessible to small children.” Joint Bldg. Code of Memphi s a nd Shelby County § 3408 .3 (1994)(empha sis added). Thus, there are two alternative actions that the Cunninghams could have taken in order to complywith this provision. They could either erect a

nd maintain a fenc

e immediately aro

und their swimming pool or they could erect and maintain a fence enclosing their entire back yard. In theinstantcase, it is undisputedthat there was a fence surrounding the Cunningham’s entire back yard, including the swimming pool. We therefore find that the Cunningham s com plied with the requirements

of section 3408.3 and are entitled to a judgment as a matter of law t o the extent that Ms. Toney’s claim against them is based on the theory of neglige

nce per se. Acc

ordingly, we hold that the trial court

properly granted the Cunninghams’ motionfor summary judgment with respect to this issue.

Conclusion

Basedon the foregoing, we find that thetrial court did not e rr in granting the War

ds’ motion to quash process a nd dismiss complaint or in granting the Cunninghams’ motion for summary judgment. The ruling of the trial court is therefore affirmed. Costs on appeal are assessed to Ms. Toney, for which execution may issue if necessary.

____________________________________ FARMER, J.

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

______________________________ HIGHERS, J. (Concu

rs)