IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 31, 2007 Session

CHARLES JONES, ET AL. v. KITE/CUPP LEGENDS GOLF

DEVELOPMENT CO., ET AL.

 Appeal from the Circuit Court for Williamson County

No. 05120 Russ Heldman, Circuit Judge 

No. M2006-01988-COA-R3-CV - Filed September 21, 2007

In this case, the plaintiff, Charles Jones, stepped onto a wooden bench while playing a round

of golf at Vanderbilt Legends Club of Tennessee (Legends), a golf course owned by the defendant,

Kite/Cupp Legends Golf Development Co. (Kite). The bench overturned and Mr. Jones fell

sustaining significant injuries. Mr. Jones brought a premises liability suit against the golf course

alleging that it was negligent by failing to have secured the bench to the concrete slab on which it

was sitting or by failing to have warned players it was not so secured. Kite filed a motion for

summary judgment which was granted by the trial court. We find there are genuine issues of

material fact, and so we reverse.

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

DONALD P. HARRIS, SR.J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and

HOLLY M. KIRBY, J., joined.

Brian Patrick Dunigan, Timothy L. Bowden, Goodlettsville, Tennessee, for the appellant, Charles

Jones.

Wendy Lynne Longmire, Nashville, Tennessee, for the appellee, Kite/Cupp Legends Golf

Development Co.

OPINION

On December 8, 2004, Charles Jones, was playing a round of golf at the Legends, a golf

course located in Franklin, Williamson County, Tennessee. He approached the thirteenth hole which

had a creek that twice crossed the fairway and lay beyond some shrubbery. There was a bench

located near the thirteenth tee. It was made of wood and had four legs made of four-by-four timbers.

The bench sat on a concrete slab to which it was not secured. In order to get a better view of the

fairway and approach to the green, Mr. Jones attempted to step onto the bench. He testified, by way

of deposition, that he thought the bench was secured to the concrete slab. As he stepped up with his
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left foot, the bench flipped forward and Mr. Jones fell onto the concrete slab, landing on his face and

arms. He broke his nose and both wrists and also suffered substantial bleeding from his face.

During discovery, the attorney for Kite deposed a number of witnesses with knowledge of

the facts involved in the case. One of those witnesses, Benny Dale Randolph, who had played golf

for over thirty years, testified he had seen a number of people stand on benches at golf courses. He

himself had stood on benches in order to see if golfers were off the green or things of that nature.

Both Mr. Randolph and another non-party witness, Robert Andrew Templeton, stated their opinions

that the benches were dangerous because the were not bolted down or secured to the concrete slab.

Kite filed a motion for summary judgment. In its motion, Kite alleged Mr. Jones had failed

to offer evidence that the bench in question was dangerous or unsafe because it was safe for sitting.

Kite had no duty to warn its patrons about conditions that were not dangerous or unsafe. Finally,

Kite argued that the facts clearly showed Mr. Jones was more than fifty percent at fault and,

therefore, it should be granted summary judgment.

The trial court granted Kite’s motion for summary judgment. The order granting summary

judgment states:

The Court ruled that as a matter of fact the Plaintiff was using the bench for an

unintended purpose, and that as a matter of law, Defendant’s motion for summary

judgment was appropriate and should be granted.

Mr. Jones has appealed.

Summary judgment is appropriate only when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there are

no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn. 2000); Byrd v. Hall,

847 S.W.2d 208, 210 (Tenn. 1993). Since our inquiry involves purely a question of law, no

presumption of correctness attaches to the lower court's judgment, and our task is confined to

reviewing the record to determine whether the requirements of Rule 56 of the Tennessee Rules of

Civil Procedure have been met. Penley, 31 S.W.3d at 183; Staples v. CBL & Assocs., Inc., 15

S.W.3d 83, 88 (Tenn. 2000); Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 90-91 (Tenn. 1999).

Courts should "grant a summary judgment only when both the facts and the inferences to be drawn

from the facts permit a reasonable person to reach only one conclusion." Staples, 15 S.W.3d at 89;

Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). In reviewing the record to determine whether

summary judgment requirements have been met, we must view all the evidence in the light most

favorable to the non-moving party. Penley, 31 S.W.3d at 183; Eyring v. Fort Sanders Parkwest Med.

Ctr., 991 S.W.2d 230, 236 (Tenn. 1999); Byrd, 847 S.W.2d at 210-11.

Summary judgment proceedings are clearly not designed to serve as a substitute for the trial

of genuine and material factual matters. Byrd, 847 S.W.2d at 210; see also Blocker v. Regional Med.
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Ctr, 722 S.W.2d 660, 663 (Tenn. 1987). The trial court should overrule the motion where a genuine

dispute exists as to any material fact. Byrd, 847 S.W.2d at 211. A fact is material if it must be

decided in order to resolve the substantive claim or defense at which the motion is directed. Id.

To establish negligence, one must prove: (1) a duty of care owed by defendant to plaintiff;

(2) conduct falling below the applicable standard of care that amounts to a breach of that duty; (3)

an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. Cohn v. City of Savannah, 966

S.W.2d 34, 39 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). The formulation

of a duty of care is a question of law for the court. McClung v. Delta Square Ltd. Pshp., 937 S.W.2d

891, 894 (Tenn. 1996).

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. Rice v. Sabir, 979

S.W.2d 305, 308 (Tenn. 1998). 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. Id., Eaton v. McLain, 891 S.W.2d 587, 593-94 (Tenn.

1994). Although the traditional rationale for imposing this dutywasthe owner'ssuperior knowledge

of conditions on the premises, a duty may exist even where the injury-causing condition is "open and

obvious" to the plaintiff. Cohn, 966 S.W.2d 34, 43 (Tenn. 1998). 

A condition of property is unreasonably dangerous and imposes a duty of care if the

foreseeable probability and gravity of harm posed by it outweigh the burden upon the defendant to

engage in corrective measures that would prevent the harm. Cohn, 966 S.W.2d at 37; McCall v.

Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Applying this analysis, if the foreseeability and gravity

of harm posed by the condition of defendant's property outweigh the burden upon the defendant to

remove or correct the condition or warn of its existence, the defendant has a duty to act with

reasonable care and comparative fault principles apply under McIntyre v. Balentine, 833 S.W.2d 52

(Tenn. 1992). Cohn, 966 S.W.2d at 37.

In our view, the trial court erroneously focused its determination on the misuse of the bench

for standing rather than whether such use of the bench was foreseeable. Where the misuse of an

object on the owner’s premises is foreseeable, the owner has an obligation to balance the dangers

associated with such misuse against the burden of preventing the misuse or making it safe for that

use. Thus, in Turner v. Tennessee Tex. Express, Inc., No. 02A01-9310-CV-00226, 1994 WL

482135 (Tenn. Ct. App. September 2, 1994), this court approved a jury verdict in favor of the

plaintiff in a case involving the misuse of a wooden pallet. In that case, a truck driver, dispatched

to pick up freight, backed his truck up to the owner’s loading dock. He entered the building by

walking up a wooden pallet leaning against the loading dock in order to pick up his freight and paper

work. He then attempted to exit by way of the pallet but it slipped out from under him and he fell

to the ground injuring his back and neck. The truck driver observed other drivers using the pallet

for entry and stated there were about three such pallets around the dock. There were also steps by

which one could ascend and descend from the loading dock. This court held those circumstances

presented a proper case to submit to the jury on the principles of comparative fault. Id. at *3-4.
While Mr. Randolph and Mr. Templeton were regular golfing partners with Mr. Jones, our standard of review

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in evaluating a trial court’s action with regard to a motion for summary judgment requires that we accept their testimony

as true, and we cannot discount their testimony on that basis, as suggested by Kite.

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In the present case, a non-party witness, Benny Dale Randolph, testified, by way of

deposition, that in his thirty years of golfing, he had seen a number of people standing on benches

at golf courses and had stood upon them himself in order to determine whether there were other

players on the course ahead. He and another non-partywitness, Robert Andrew Templeton, testified

that the benches were dangerous because they were not anchored or bolted down. This testimony 1

along with that of Mr. Jones, in our view, creates a genuine issue as to whether such use of the

benches was or should have been foreseeable by the owners of the golf course and whether they

presented a risk of harm when used in that fashion. These issues are material to a determination of

this case under the principles of comparative fault, as outlined above. 

Kite also urges that summary judgment was appropriate because reasonable minds could not

differ that Mr. Jones was more than fifty percent at fault. The trial court did not expressly make that

determination and we decline to do so based upon the record before us. In our view, the issue of who

was more at fault in this case will depend upon whether the trier of fact finds Kite had a duty of care

based upon its determination of the foreseeability issues, set forth above. If a duty is found, a

determination would then have to be made as to whether Kite breached that duty of care. If Kite is

found to have violated its duty of care, the extent of that violation could then be compared with any

negligence of Mr. Jones. Whether Mr. Jones was negligent or the degree of such negligence, might

depend, in part, upon a consideration of the reasonableness of his assumption the bench was

anchored in some fashion. Based upon the record before us, the issue of who was more at fault is

susceptible of more than one conclusion.

We reverse the judgment of the trial court granting partial summary judgment to Kite. This

matter is remanded to the trial court for further proceedings consistent with this opinion. The costs

of this appeal are assessed to the Kite/Cupp Legends Golf Development Co.

_______________________________

DONALD P. HARRIS, SENIOR JUDGE