08/18/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 20, 2017 Session

HOLLY RADER, ET AL. v. RUBY TUESDAY, INC.

 Appeal from the Circuit Court for Knox County

No. 2-302-12 Kristi Davis, Judge

No. E2016-01677-COA-R3-CV

Holly Rader (“Plaintiff”) appeals the August 4, 2016 order of the Circuit Court for Knox 

County (“the Trial Court”) granting summary judgment to Ruby Tuesday, Inc. (“Ruby 

Tuesday”) in this slip and fall action after finding that Ruby Tuesday did not have 

superior, actual, or constructive knowledge of the condition that caused Plaintiff’s slip 

and fall. We find and hold that Ruby Tuesday did have superior, actual, or constructive 

knowledge of the condition that caused the slip and fall and owed a duty to Plaintiff. We, 

therefore, vacate the grant of summary judgment and remand this case for further 

proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

Ameesh A. Kherani and David H. Dunaway, LaFollette, Tennessee, for the appellant, 

Holly Rader.

Janet Strevel Hayes and Benjamin W. Jones, Knoxville, Tennessee, for the appellee, 

Ruby Tuesday, Inc.
2

OPINION

Background

Plaintiff sued Ruby Tuesday alleging that she sustained damages as a result of her

slip and fall (“the Accident”) that occurred on June 24, 2011, at the Ruby Tuesday 

located on Emory Road in Powell, Tennessee. Plaintiff’s employer, Glaxo Smith Kline, 

and its workers’ compensation insurance carrier, Broadspire, were granted leave to 

intervene in the suit because the injuries allegedly sustained from the Accident occurred 

while Plaintiff was acting in the course and scope of her employment. 

The facts surrounding the Accident are largely undisputed. Plaintiff was working 

as a pharmeceutical sales representative for Glaxo Smith Kline. The evening before the 

Accident, Plaintiff placed an order with Ruby Tuesday for a carry-out lunch for 

approximately 25 to 30 people to be picked up on June 24, 2011, the date of the Accident. 

Plaintiff intended to serve the carry-out lunch to a group of doctors and their staff 

members upon whom Plaintiff was making a sales call. The carry-out order included 

drinks and at least one bag of ice. 

Plaintiff planned to pick up the lunch order around 11 or 11:15 a.m. as she wanted 

to be at the doctors’ office before noon on that day. Plaintiff testified that her practice 

when placing orders such as this one was to tell Ruby Tuesday that she wanted the food 

“earlier” because “they kind of run late on their food.” On the day of the Accident, 

Plaintiff called Ruby Tuesday when she “got off the exit” to let them know she was on 

her way. She stated that the traffic was “stop and go because the traffic light was not 

working . . . .” Plaintiff stated: “I was worried that I might be late, so I didn’t want to get 

there have a delay, so I told them, you know, hey, be sure and have my food ready when I 

walk in.” Plaintiff asserted that she was not running behind schedule and had not missed 

her pick-up window. 

When Plaintiff arrived at the Ruby Tuesday, she entered through the “carry-out 

entrance,” told the manager that she was there to pick her order up, and handed the 

manager her credit card.1Plaintiff stated that the manager took the credit card and told 

her that her food was “over on the ledge.” The food was in a box. The food order also 

included a “couple of gallons of tea,” and “two, maybe more, bags of ice.” 

Plaintiff stated that she picked up the box and a bag of ice to “head for” her car,

and she fell. When asked what caused her to fall, Plaintiff stated: “The water from the 

 

1

The manager testified that he did not process Plaintiff’s payment and that the bartender would have been 

the person to whom Plaintiff handed her credit card. Although this fact is disputed, it is not material to 

the issues involved in the suit.
3

bag of ice.” Plaintiff stated that “there wasn’t any water in the floor” when she entered 

the Ruby Tuesday. She further stated that “the bag [of ice], when I felt, it was all water.” 

Plaintiff stated: “I was soaked. . . . What I know is I was laying in the floor with water. 

There was some ice and I had a big box of food laying on me.” Plaintiff stated that she 

was “hurting and in shock and just wanted to get out of there.” 

After her fall, Plaintiff put the food, drinks, and ice into her car with the help of 

some Ruby Tuesday employees. Plaintiff then went to the doctors’ office for her sales 

call. At the doctors’ office, Plaintiff took some Advil. Plaintiff did not change clothing 

prior to making her sales call. Instead, she “turned on the heater real, real high” in her 

car.

James Gordon, III, the manager at the Ruby Tuesday on the day of the Accident, 

was deposed. Mr. Gordon testified that condensation from the bag of ice that Plaintiff 

picked up dripped on to the floor and this water was what caused Plaintiff to slip and fall. 

Mr. Gordon testified that he had assisted with setting out Plaintiff’s carry-out order so it 

was ready for pickup and stated that the order “was ready at the time due.” Mr. Gordon 

himself placed the ice out with the food. He stated: “the food - - it was - - it was placed 

out at the time it was due, and it sat out for quite a while.” Mr. Gordon further stated:

[Plaintiff] was there for three minutes. She was frantic. She grabbed the 

box. I offered to help. She declined my help, grabbed the bag of ice, 

turned around, the condensation fell in the floor. She slipped and fell. She 

got up quickly, did not want my help. That’s what I recall. That’s what I 

recall.

Mr. Gordon also testified that later that day Plaintiff telephoned and told him that her 

knee was swelling and that she was going to seek medical attention.

On the day of the Accident, after making her sales call, Plaintiff sought medical 

attention. Plaintiff stated that the doctor ordered x-rays which showed nothing was 

broken. The doctor prescribed an antiinflammatory and told Plaintiff to apply ice and to 

rest. Plaintiff continued to have pain, and in June of 2012 she filed the instant suit.

Ruby Tuesday filed a motion for summary judgment alleging, in part: “The 

undisputed material facts, however, demonstrate that no hazard existed sufficient to 

trigger a duty of [Ruby Tuesday] to warn Plaintiff of a hazard prior to Plaintiff’s own 

actions creating the hazard,” that there was no evidence of a dangerous or defective 

condition, and that Plaintiff was more than fifty percent at fault for her injuries. In 

support of its motion, Ruby Tuesday submitted the deposition testimony of Plaintiff 

wherein Plaintiff testified that the condition that caused her to fall was the water that 
4

dripped from the bag of ice when she picked the bag up and that there was no water on 

the floor prior to Plaintiff’s picking up the bag of ice.

In opposition to Ruby Tuesday’s motion for summary judgment Plaintiff pointed 

to the deposition testimony of Thad Harshbarger, among other things. Mr. Harshbarger 

testified that he is an operating partner for Ruby Tuesday and heads up ten different 

restaurants in east Tennessee and Kentucky. Mr. Harshbarger testified that Ruby 

Tuesday normally keeps the temperature in its restaurants at “[s]eventy to ’72” degrees. 

Mr. Harshbarger agreed that a bag of ice left at room temperature would melt, produce 

water, and form condensation that could drip. Mr. Harshbarger explained that the normal 

procedure for carry-out orders is to bag the ice when the order is supposed to be picked 

up and place it with the order “so they can grab it, because it does take some time to bag 

the ice.”

Plaintiff also submitted the affidavit of Kimberly Kay Goins. In her affidavit, Ms. 

Goins stated that she has been in the food catering and food service business for thirtyseven years and has prepared “catering and carry-out orders for hundreds and thousands 

of patrons and guests.” Ms. Goins also has owned her own catering and food service 

business. Ms. Goins stated in her affidavit:

7. In my review of these materials it is clear Ruby Tuesday, Inc., was 

negligent through its agents, servants and employees in keeping a bag of ice 

outside at room temperature of 72° for a significant period of time because 

this would cause the ice bag to accumulate condensation and cause the ice 

to melt which is a safety risk for any potential carry-out guests who carry 

the ice causing the condensation to get on the floor causing a significant 

hazard of the patron or any other person slipping and falling.

8. In my thirty-seven (37) year career in catering and food industry, it is the 

industry norm that bags of ice for any carry-out order are stored in an ice 

freezer until the patron or the guest arrives to pick up the order and then the 

bag of ice is taken out of the freezer to hand to the guest and patron to 

ensure that there is no safety risk and to also otherwise ensure that the 

patron and guest is not getting ice that has already melted into water.

After a hearing, the Trial Court granted Ruby Tuesday summary judgment finding 

and holding, inter alia, that there were no genuine disputed issues of material fact and 

that Ruby Tuesday did not have superior, actual, or constructive knowledge of the 

condition that caused Plaintiff to slip and fall, and therefore, that Ruby Tuesday had 

negated an essential element of Plaintiff’s claim. Plaintiff appeals to this Court. 
5

Discussion

Although not stated exactly as such, Plaintiff raises one issue on appeal: whether 

the Trial Court erred in granting summary judgment to Ruby Tuesday. As our Supreme 

Court has instructed:

Summary judgment is appropriate when “the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” 

Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for 

summary judgment de novo, without a presumption of correctness. Bain v. 

Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist 

Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing 

so, we make a fresh determination of whether the requirements of Rule 56 

of the Tennessee Rules of Civil Procedure have been satisfied. Estate of 

Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. 

Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

* * *

[I]n Tennessee, as in the federal system, when the moving party does not 

bear the burden of proof at trial, the moving party may satisfy its burden of 

production either (1) by affirmatively negating an essential element of the 

nonmoving party’s claim or (2) by demonstrating that the nonmoving 

party’s evidence at the summary judgment stage is insufficient to establish 

the nonmoving party’s claim or defense. We reiterate that a moving party 

seeking summary judgment by attacking the nonmoving party’s evidence 

must do more than make a conclusory assertion that summary judgment is 

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the 

moving party to support its motion with “a separate concise statement of 

material facts as to which the moving party contends there is no genuine 

issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a 

separate, numbered paragraph and supported by a specific citation to the 

record.” Id. When such a motion is made, any party opposing summary 

judgment must file a response to each fact set forth by the movant in the 

manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary 

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”

to survive summary judgment, the nonmoving party “may not rest upon the 

mere allegations or denials of [its] pleading,” but must respond, and by 

affidavits or one of the other means provided in Tennessee Rule 56, “set 
6

forth specific facts” at the summary judgment stage “showing that there is a 

genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party 

“must do more than simply show that there is some metaphysical doubt as 

to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. 

Ct. 1348. The nonmoving party must demonstrate the existence of specific 

facts in the record which could lead a rational trier of fact to find in favor of 

the nonmoving party. If a summary judgment motion is filed before 

adequate time for discovery has been provided, the nonmoving party may 

seek a continuance to engage in additional discovery as provided in 

Tennessee Rule 56.07. However, after adequate time for discovery has 

been provided, summary judgment should be granted if the nonmoving 

party’s evidence at the summary judgment stage is insufficient to establish 

the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P. 

56.04, 56.06. The focus is on the evidence the nonmoving party comes 

forward with at the summary judgment stage, not on hypothetical evidence 

that theoretically could be adduced, despite the passage of discovery 

deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 

2015).

With regard to negligence, our Supreme Court has explained:

As we have frequently observed, a negligence claim requires a 

plaintiff to prove the following elements: (1) a duty of care owed by the 

defendant to the plaintiff; (2) conduct by the defendant falling below the 

standard of care amounting to a breach of the duty; (3) an injury or loss; (4) 

causation in fact; and (5) proximate causation. See, e.g., Bradshaw v. 

Daniel, 854 S.W.2d 865, 869 (Tenn. 1993). The duty element is a question 

of law requiring the court to determine “whether the interest of the plaintiff 

which has suffered invasion was entitled to legal protection at the hands of 

the defendant.” Id. at 870 (quoting W. Page Keeton, Prosser & Keeton on 

Torts, § 37 at 236 (5th ed.1984)). Appellate review of a question of law is 

de novo. Bradshaw, 854 S.W.2d at 870.

In analyzing duty, the court must balance the foreseeability and 

gravity of the potential risk of harm to a plaintiff against the burden 

imposed on the defendant in protecting against that harm. McClung v. 

Delta Square Ltd. Partnership, 937 S.W.2d 891, 902 (Tenn. 1996). A “risk 

is unreasonable and gives rise to a duty to act with due care if the 

foreseeable probability and gravity of harm posed by defendant’s conduct 
7

outweigh the burden upon defendant to engage in alternative conduct that 

would have prevented the harm.” McCall v. Wilder, 913 S.W.2d 150, 153 

(Tenn. 1995).

In a premises liability case, an owner or occupier of premises has a 

duty to exercise reasonable care with regard to social guests or business 

invitees on the premises. The duty includes the responsibility to remove or 

warn against latent or hidden dangerous conditions on the premises of 

which one was aware or should have been aware through the exercise of 

reasonable diligence. See Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 

1996); Eaton v. McLain, 891 S.W.2d 587, 593–94 (Tenn. 1994). Although 

the traditional rationale for imposing this duty was the owner’s superior 

knowledge of conditions on the premises, see e.g., Kendall Oil v. Payne, 41 

Tenn. App. 201, 293 S.W.2d 40, 42 (Tenn. App. 1955), we recently held 

that a duty may exist even where the injury-causing condition is alleged to 

be “open and obvious” to the plaintiff. We explained:

That a danger to the plaintiff was ‘open or obvious’ does not, 

ipso facto, relieve a defendant of a duty of care. Instead, the 

duty issue must be analyzed with regard to foreseeability and 

gravity of harm, and the feasibility and availability of 

alternative conduct that would have prevented the harm. The 

factors provided in the Restatement (Second) of Torts, § 

343(A) relate directly to the foreseeability question; in short, 

if the foreseeability and gravity of harm posed from a 

defendant’s conduct, even if ‘open and obvious,’ outweighed 

the burden on the defendant to engage in alternative conduct 

to avoid the harm, there is a duty to act with reasonable care.

Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998).

The duty imposed on the premises owner or occupier, however, does 

not include the responsibility to remove or warn against “conditions from 

which no unreasonable risk was to be anticipated, or from those which the 

occupier neither knew about nor could have discovered with reasonable 

care.” Prosser and Keeton on Torts, supra, § 61 at 426. In this regard, “the 

mere existence of a defect or danger is generally insufficient to establish 

liability, unless it is shown to be of such a character or of such duration that 

the jury may reasonably conclude that due care would have discovered it.” 

Id. at 426–27. As we explained in Doe v. Linder Const. Co., 845 S.W.2d 

173, 178 (Tenn. 1992):
8

Foreseeability is the test of negligence. If the injury which 

occurred could not have been reasonably foreseen, the duty of 

care does not arise, and even though the act of the defendant 

in fact caused the injury, there is no negligence and no 

liability. ‘[T]he plaintiff must show that the injury was a 

reasonably foreseeable probability, not just a remote 

possibility, and that some action within the [defendant’s] 

power more probably than not would have prevented the 

injury.’

(emphasis added) (citations omitted).

Rice v. Sabir, 979 S.W.2d 305, 308-09 (Tenn. 1998) (footnote omitted).

In its memorandum opinion incorporated into its August 4, 2016 judgment by 

reference, the Trial Court found that the “injury-causing condition” was the “actual water 

on the floor of the restaurant,” not the bag of ice that had been sitting on a shelf melting

which allowed water to condense on the bag. The Trial Court found that the undisputed 

facts showed that the water was not on the floor when Plaintiff entered the Ruby Tuesday 

to pick-up her food order. The undisputed facts show that the water did not drip on to the 

floor of the restaurant until Plaintiff picked up the bag of ice. As such, the Trial Court 

found that Ruby Tuesday could not have had knowledge of the injury-causing condition 

prior to the Accident because the injury-causing condition, water on the floor, did not 

occur until Plaintiff picked up the bag of ice. The undisputed facts show that Plaintiff fell 

immediately after she picked up the bag of ice. Thus, according to the Trial Court, Ruby 

Tuesday could not have had actual or constructive knowledge of the injury-causing 

condition prior to Plaintiff’s slip and fall. The Trial Court further found that Ruby 

Tuesday did not have a duty to warn Plaintiff that the bag of ice might drip when it was 

lifted up because the condition of the bag of ice was “equally available to be noticed by 

both Ruby Tuesday’s [sic] and the plaintiff,” and as such Plaintiff had as much 

knowledge about the condition of the bag of ice when she lifted it as did Ruby Tuesday. 

Based upon all this, the Trial Court found that Ruby Tuesday had negated an essential 

element of Plaintiff’s claim, i.e., duty. 

Ruby Tuesday made a properly supported motion for summary judgment. 

Plaintiff opposed the motion and pointed to evidence that showed that Ruby Tuesday 

knew that the ice had been sitting out at room temperature. In fact, Mr. Gordon, the 

Ruby Tuesday manager, testified that he had assisted with setting the order out to wait for 

Plaintiff to pick it up and that the order, including the bag or bags of ice, had been sitting 

out “for quite a while.” Plaintiff also pointed to the testimony of Mr. Harshbarger, an 
9

operating partner for Ruby Tuesday, who agreed that a bag of ice left at room 

temperature would melt, produce water, and form condensation on the bag that could 

drip. Plaintiff also pointed to the affidavit of her catering and food service expert, Ms. 

Goins, who stated that the industry norm is to keep bags of ice for a carry-out order in a 

freezer until the customer arrives for the pickup, both to ensure that the bag does not form 

condensation and drip and that the customer receives ice as ordered and not water. 

We agree with the Plaintiff that the Trial Court defined the dangerous or injury 

causing condition too narrowly. The dangerous or injury-causing condition was not just 

the water that fell on the floor after Plaintiff picked up the bag of ice. The dangerous or 

injury-causing condition included the partially melted bag of ice with condensation on it 

waiting to be picked up by Plaintiff. It was this condition of the bag of ice that caused the 

water to fall on the floor when Plaintiff picked up the bag of ice. The undisputed facts 

show that only Ruby Tuesday and not Plaintiff had actual knowledge of how long the bag 

of ice had been sitting out on the shelf. In the case now before us, Plaintiff has shown 

that Ruby Tuesday clearly had superior knowledge with regard to how long the bag of ice 

had been sitting out at room temperature before Plaintiff arrived to pick up her order. We 

must balance the foreseeability and gravity of the potential risk of harm to a customer 

such as Plaintiff if a bag of ice is left at room temperature “for quite a while” and then 

drips water on to the floor when picked up by the customer against the burden imposed 

upon Ruby Tuesday to protect against such foreseeable harm. Ruby Tuesday could have 

protected against such harm either by leaving the bag of ice in a freezer until the 

customer arrived or by warning the customer that the bag of ice might be dripping 

because it has been sitting out “for quite a while.” The foreseeable probability and 

gravity of harm outweighs the burden on Ruby Tuesday to have taken steps that would 

have prevented the harm. This results in Ruby Tuesday having had a duty to engage in 

alternative conduct to prevent the foreseeable harm. Thus, we hold that Ruby Tuesday 

did have a duty to Plaintiff. 

In its brief on appeal, Ruby Tuesday argues, in part, that summary judgment was

also proper because reasonable minds could conclude only that Plaintiff’s fault was fifty 

percent or greater. In Staples v. CBL & Assocs., Inc., our Supreme Court instructed:

In negligence cases, only after the element of duty is established 

does the comparative fault of the plaintiff come into play. See Coln v. City 

of Savannah, 966 S.W.2d [34] at 42 [ (Tenn. 1998) ]. If the defendant has 

plead the affirmative defense of the plaintiff’s relative fault, the 

reasonableness of the plaintiff’s conduct in confronting a risk should be 

determined under the principles of comparative fault. See Perez v. 

McConkey, 872 S.W.2d 897, 905 (Tenn. 1994). If the evidence is evaluated 

in the light most favorable to the plaintiff and reasonable minds could not 
10

differ that her fault was equal to or great [sic] than that of the defendants, 

summary judgment in the defendant’s favor may be granted. See Coln v. 

City of Savannah, 966 S.W.2d at 44.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91–92 (Tenn. 2000).

Ruby Tuesday argues that Plaintiff admitted that there was no water on the floor 

prior to Plaintiff’s picking up the bag of ice, that Plaintiff was the one who ordered the 

ice and demanded that it be ready at a certain time knowing that this time was earlier than 

she intended to arrive for pickup, that Plaintiff was running late, and that Plaintiff should 

have known that ice melts and will cause condensation on the bag. Thus, Ruby Tuesday 

argues that Plaintiff was in the best position to avoid the Accident. Viewing the 

evidence, including our determination of what the dangerous or injury causing condition 

was and Ruby Tuesday’s actual and superior knowledge as to how long the ice had been 

sitting out, in the light most favorable to plaintiff, as we must at this summary judgment 

stage, we cannot say that a reasonable trier of fact could not find that the percentage of 

fault attributable to Plaintiff was less than fifty percent. 

The evidence in the record on appeal shows that Ruby Tuesday knew how long the 

bag of ice was sitting out while Plaintiff had no actual knowledge of how long the bag of 

ice had been sitting out at room temperature. The evidence further shows that Plaintiff 

ordered a bag or bags of ice, not water. A reasonable trier of fact could find that Plaintiff 

was justified in expecting that the bag she picked up was un-melted ice and that Plaintiff 

was less than fifty percent at fault for picking up the bag without examining it to 

determine if the ice had melted causing condensation on the bag. As such, there are 

genuine disputed issues of material fact with regard to comparative fault in this case, 

making summary judgment inappropriate. 

In its brief on appeal, Ruby Tuesday also argues that public policy ought to 

prohibit a finding of liability in this case. In essence, Ruby Tuesday argues: “To deny 

summary judgment in this case would be to suggest that there is a legal duty to warn that 

ice melts and can develop condensation when placed in a plastic bag. To adopt the 

Plaintiff’s reasoning would create law that mandates that a restaurant must disregard the 

specific requests a customer makes regarding pick-up and/or affirmatively warn all 

customers that ice can melt.” 

The outcome that Ruby Tuesday argues will occur, however, will not result from 

our decision in this case. We are not holding that a restaurant must disregard customer 

requests, nor are we holding that a restaurant must warn all customers that ice melts. 

Rather, we state only that Ruby Tuesday was in a superior position to know that the bag 

of ice involved in the Accident had been sitting out at room temperature “for quite a 
11

while,” and knowing that ice melts and can cause condensation on the bag at room 

temperature, Ruby Tuesday had a duty either to keep the bag of ice in a freezer until 

Plaintiff arrived or to warn Plaintiff that the bag of ice had been sitting out “for quite a

while” and, therefore, could drip water causing a potentially dangerous condition. Such a 

duty imposes neither an onerous nor a ridiculous burden upon Ruby Tuesday.

As Ruby Tuesday had a duty to Plaintiff and we cannot say that a rational trier of 

fact could not find that the percentage of fault attributable to Plaintiff was less than fifty 

percent, summary judgment was not proper. We, therefore, vacate the grant of summary 

judgment and remand this case for further proceedings consistent with this Opinion.

Conclusion

The judgment of the Trial Court is vacated, and this cause is remanded to the Trial 

Court for further proceedings consistent with this Opinion and for collection of the costs 

below. The costs on appeal are assessed against the appellee, Ruby Tuesday, Inc.

_________________________________ 

D. MICHAEL SWINEY, CHIEF JUDGE