# FILED
February 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION A T JACKSON
GINA FRA

NKLIN, et al, ) ) Plaintiffs/Appellants, ) Madison Circuit N o. C-94-207 ) VS. ) Appeal No . 02A01-9704-CV- 00088 ) ALLIED SIGNA

L, INC., ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF MADISON COU NTY AT JACKSON, TENNESSEE THE HONORABLE WHIT LAFON, JUDGE

THOMAS K. M cALEXANDER HILL BOREN, P.C. Jackson, Tennessee Attorney for Appellant
JEF FRE Y L. L AY FARME R, J ONE S, H AMIL TON & LAY Dyersburg, Tennessee Attorney for Appellee

REVERSED AND

REMANDED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. This appeal in vo lves a suit filed by plaintiffs, Gi na (“Mrs. Franklin ”) and Barnee2

Franklin (“the Fran klins”) , against defendant, Allied Si gnal, Inc. (“Allied” ), for personal injuriessustained when Mrs. Franklin tripped and fell on All ied ’s premises on a metal loading ramp which pr

otruded above the dock floor by one to two inches. The trial court granted Allied’s motion for summary judgment. The Franklins ap peal and p ose the following issues for our

consideration: (1) w

hether the trial court committed error in granting the defendant’s motion for summary judg ment; and (2) whether the “o pen and obvious rule” bars plaintiff’s recovery or is only a factor to be considered in assessing compara tive negligence. For reasons stated hereafter, we reverse the judg ment of the trial court and remand.

Facts and Procedural His tory During the summer of 1993, Mrs. Franklin w orked for Joe’s Delivery Service. Mrs. Franklin would pick up and deliv er packages from various bus inesses. Asa part of her job, Mrs. Franklin would pick up packages at Allied each day at appr oximately 5:00 p.m. Mrs. Franklin wo uld back her truck up to Allied’s docks, walk up a flight of stairs into Allied’s dockarea, find the packages that she was to pick u p at a de signated area (usually on a table or on the floor between the first tw o loadings dock doors), move the packages to the loading dock door where she had her truck p arked , descend down the same stair s and load the packages from the dock i nto her truck.

On the dock at Allied, ther e is a metal l oading ramp that serves as a bridge between tractor-trailers and the dock in order to accommodate fork li fts and ot her wheeled equipmentused when loading and unloading trailers. These loading ramps are powered hydraulicallywhereby would they raise up and extend onto the trailers. While not in use, these loading ramps were usually flush with the dock floor.

At approximat

ely 5:00 p. m. on July 20, 1993, Mrs. Franklin arrived at Allied’s loading dock. Mrs. Franklin ascended up the stairs and into the dock area. She took two steps to her left on the concrete dock floor, i ntending to cross the metal loading ramp to the place where her packages

were usually

located. On her second step,Mrs. Franklin’s l eft toes3

encountered the edge of the loading ramp which was allegedly extending above the dock floor by one to two inche s, thus, precipitating her fall.

Allied contends that it was in no way negligent and that the loading ramp was flush with the floor. Alternativel y, Allied asserts th at even if it were neg ligent and the loading ramp di d ex tend one to two inches abov e the floor, Mrs. Frankli n’s negligence in not exercisingordinary care in avoid ing t he loadi ng ramp is greater than or equal to the negligence of Allied thereby barri ng her recovery under the scheme o f compa rative fault.

There seems to be some dispute as to whether Mrs. Franklin had seen the loadi ng ramps when they were one to two inches above the floor prior to Jul y 20, 1993. Allied asserts that Mrs. Franklin had been in the dock are a before and had seen the loading ramps when they “were not let down all the w

ay flus h with the floo r.” Counsel for Mrs. Franklin contends, however, that Mrs. Franklin had

never had any

problems with the dock floor prior to this incident and had nev er seen the loadingramps when they were not flush with the floor.
Furthermore, Allied asserts that Mrs. Franklin di d not look tosee if the loa ding ramp
was flush with the floor at the time of her accident. Allied contends that there w as nothing keeping Mrs. Franklin from seeing the fact the loadin g ramp wasprotrudi ng one to t wo inches above the floor.

On July 19, 1994, Mrs. F ranklin filed a complaint in the Circuit Court for M adison County, Tennessee, for personal injuri es sustai ned when s he fell at Allied on July 20, 1993. Allied then filed an answ er to the complaint

denying any negli gence and asserting various affirmative defenses.

The discovery

deposition of Mrs. Fra nklin was ta ken on May 3 , 1995. A ddition ally, the depositions of witnesses Bradley Moore, Nina Ter esa Williams, Jeffrey Pearman and James T. Vincent were taken on February 8, 1996.4

Thereafter, on April 8, 1996, Allied fil ed a motion for summary judgment al ong with supporting memorandum of points and legal authorities. Plaintiffs filed a response to the motion for summary judgment along with supporti ng memorandum on June 18, 1996. The trial court entered an order gra nting Allied’s motion for summary judgment along w ith findings of fact on August 5, 1996. In its findings of fact, the tri al court stated several bases forgra nting Al lied’s motion for summary j udgment: (1) there was no genuine issue of material fact of any defect in the dock plate or metal ramp or that the dock plate w as not working as it was des igned to wo rk; (2 ) there was no reasonabl y foreseeable probability of any such injury on the part of the defendant; (3) Mrs. Franklin had equal knowledge w ith Allied concerning the metalloading ra mps; (4) the metal ramp

was open and obvious and in plain view

of Mrs. Franklin, and

there was nothing to obs truct her view of the ramp; and (5) if there was neglig ence on the part of Allied, reasonable minds could not differ in finding that the negligence of Mrs . Franklin would be at least as great or g reater than any of the negligence on the part of Al lied.

The Franklins filed a motion to alter or amend judgment on August 26, 1996, along with a supporting memorandum. Alli ed filed a response to the Franklins’ motion to a lter
or amend on September 25, 1996. The trial cour t denied the motion to alter or amend by an order which was

filed January 15, 1997. This appeal ensued.

Law and Discussion Ordinari ly, when we review a finding of

fact by the trial court, we must conduct our review de novo

upon the record accompanied by a pres umption of correc tness, an d we mayreverse only if the e vidence preponderates agai nst the finding s of the trial court. T.R.A.P. 13(d). This same presumption, howev er , does not exist with regard to the trial
court’s l egal determinations. Prost v. City of Clarksville , 668 S.W.2d 425, 427 (Tenn. 1985). In appeals from grants of summary judgment, this court must decide whether the court below correctly

applied Rule 56.03 and in so doing, this court must make an entirely fresh determinatio n because only qu estions o f law are presented; no pres umption of correctness accompanies the trial cour t’s decision. Hill v. Chattanooga , 533 S.W.2d 3115

(Tenn. Ct. App. 1975). In this cas e, the trial court granted Allied’s motion for summary judgment. Thus, on appeal, this court must rev iew the findings of

the trial court de novo without the accompanying presumption of correctness.

As a general rule, neglig ence cases are not amenable to disposi tion under Tennessee Rule of Civil Procedure 56 summary judgment proceedings unless, from all of the facts together with

the inferencesto be drawn from the facts, the facts and inferences
are so certain, and uncontrov erted that reasonable minds must agree. Bowman v. Henard, 547 S.W.2d 527, 5 28 (Tenn. 1977); Keene v. Cracker Barrel Old Country Store , 853 S.W.2d 501, 502-03 (Tenn. Ct. App. 1992).

The Supreme Court, in discussing duti es of the trial court when a summary judgment is sought pursuant to Tenn. R. Civ. P. 56 s aid: Where there does exist a dis pute as to facts which are deemed material by the trial court, however, or where there is uncertainty

as to w hether there may be such a di spute, the duty of the trial court is clear. He i s to overrule any motion for summary judgmentin such cases because summary judgment proceedings are not in any sense to be v iewed as a substitute for a trial of disputed factual issues. Evco Corporation v. Ross , 528 S.W.2d 20, 25 (T enn. 1975).

This court in Taylor v. Nashville Banner Pub. Co. , 573, S.W.2d 476 (Tenn. Ct. App. 1978), further observed:

The party wh o moves for s umm ary jud gment has the burden of showing that no genui ne issue ofmaterial factsexists, and in ruling on the motion the court must view the record in the light most favorable to th e motion’s opponent. Id. at 480.

In neglig e nce cases, summary judgment is appropriate only w

hen the inferences which may be drawn from the uncontroverted facts are so certain that all reasonable persons must agreeon them. Brookins v. The Round Tabl e, Inc. , 624 S.W.2d 547 (Tenn. 1981). Conversely stated, if the facts are uncontroverted, summary judgment is inappropriateif reasonabl e minds could differ as to th e inferences to be drawn therefrom.6

Prescott v. Adams , 627 S.W.2d 134 (Tenn. Ct. App. 1981); Wolfe v. Hart , 679 S.W.2d 455, 457 (Tenn. Ct. App. 1984).

In a negli gence c

ase, the plainti ff has the burden of proving ( 1) that the defendant owed the plaintiff a duty; (2) that the defendan t breached that duty; (3) that defendant’s breach was the proximate caus e of plaintiff’s injuries; and ( 4) that the plaintiff was inj ured
as a result of the breach of the duty

. Benson v. H.G. Hill Stores, Inc. , 699 S.W.2d 560, 562 (Tenn. Ct. App. 1985).

As mentioned above, Allied conte nds that they were not n egligent and that the particular

loading ramp in questi on w as flush w ith the floor. In the instant case, it is uncontroverted that Mr s. Fran klin w

as law fu lly o n Allied’s premises w ithin the dock area and that she was entitled to the care and duty imposed upon Allied by the law of this state. Along these lines, Jeffrey Pearman, an employee of Allied, s tated in his deposition: Question: Have you ever seen a time when those dock plates, when a truckwasn’t at the dock being loaded when those dock plates extended above the floor an inch or two? Answer: Yes, I hav

e. Question: Whose responsibility is it to make sure those dock plates ar e raised a nd lowered properly? Answer: Myse lf. The question for the finder of fact to determine in this case w as whether Allied breache d its duty t o Mrs. Franklin there by causing her injur y. There is a genuine di spute as to whether Allied breached its duty to Mrs. Franklin b y allowi ng the loadi ng ramp to protrude
one to two inches above the floor. Allied maintains that the loading ramp was flus h with the floor. Mrs. Franklin insists that the loading ramp was one to two inches above the floor. We conclude that this is a di sputed material fact and render su mmary judgment inappropriate.

Alternat ively, Allied states that if it were negligent, Mrs. Franklin’s negligence was greater than or equal to that

of themselves. Concerning the latter,Allied contends that the loading ramp wasan “open and obvio us” dange r that Mrs. Franklin c onfron ted at he r own7

peril. Along these lines, Allied argues that whether this court

views “openand obvious” as
a complet e bar or jus t a facto r under co mparati ve negligence is of no consequence. Allied insists that the trial

court was correct in granting summary judgment in its favor because reasonable minds could not d iffer in finding that the negligence of Mrs. Franklin w as greater than or equal to that of Allied’s, thus, barring her recovery under t h e scheme of comparative negligen ce. The trial court agr eed. We do not.

Whether the protr usion of the loading ramp was a dan ger that was “open and obvious” is sharply debated. In her deposition, Mrs. Franklin states that on July 20, 1993, she did not notice any

problem with the loading ramp until she caught her foot on the edge of said ramp. There is also some dispute as to whether Mrs. Franklin had ever seen the loading ramps extending above the floor one to two inches. When counsel forAllied asked Mrs. Franklin:Question: Had you ever noticed any problem with any of the loading ramps -- m eta l loading ramps at Allied Signal before July 20, 1993? Answer: I had never paid any attention to the other ones. Quest ion: W ell, had you ever noti ced any defect or any problem in any of the loading ramps? Answer: I had been in there before when they had not been let down all th e way. Allied interprets the above to mean that Mrs. Franklin had seen the loadi ng ramps when they were in the condition pr ior to her fall, one to two inches abov e the floor. Counsel for Mrs. Franklin, however, interprets this statement to mean that Mrs. Fr anklin had seen the
loading ramps when they wer e in use and not flush with th e floor. Even if Mrs. Frankli n had been present in the dock area in the past and had seen the loading ramps when they were
one to two inches above the floor prior to July 20 , 1993, this does not make the da ng er “open and obvious.” There is no evidence that Mrs. Fr

ank l in saw this particul ar loading ramp one to two inches above the floor on this particular day. This is a genuine issue of material fact not appropriate for a summary judgment.8

Moreover, we find it interesting and imperati ve to note that three of Allied’s employees failed to notice whether or not the loadingramp was raised ever so slightly on the day in question. Par ticularly, Nina Ther

esa Williams testified in her deposition: Question: At the time she fell can you tell us whether or not the ramp was e xtende d even an inch or two above the concrete floor? Answer: No. Questio n: It was no t, or you do n’t know? Answer: I don’t know

. James T. Vincent testified:

Qu estion: Have you ever seen one after the truck makes hi s delivery and loads and then leaves, have y ou ever seen one of the ramp plates be above the floor an inch or two? Answer: If I have, I haven’t paid enough attention to draw my attention to it. Finally, Jeffrey Pearman testified:

Question: The day that this happened do y ou remember checking the ramp that was at the UPS lo ading dock to see whether it was flat wit h the flo or or raise d up any? Answer: I think it was flat becau se the door was up. I th inkit was kind of hot thatday. The door was up, and I didn’t notice it being raised up or nothing like that. Question: Do you remember actually check in g it that day to see whether it was flat with the floor? Answer: No, I don’t r

emember checking it. If the level of the

loading ramp was not “open and obv ious” to three of Allied’s employees who worked in the dock area most of the day, we are not persuaded that was necessarily “open and obvio us” to Mrs. Franklin. Whet her Mrs. Fra nklin sho uld have seen and avoided the raised loading ramp in the dock area is ordinari ly a question for jury

. Strawn v. SCOA Industries, Inc. , 804 S.W.2d 80 (Tenn. Ct. App. 1990). This issue may be removed from the jury only in suc

h cases where the facts are established by evidence free from conflict
a nd would supp ort only on e infere nce. The evidence here doe s not qual ify by th e foregoing standard.

In the case b efore us , we cannot say that the facts lead only to an inference that1 In light of the for

egoing disposi

tion of the main i ssue in this cause, nam ely, whether the trial court erred in grant ing All ied’s moti on for sum mar y judgm ent, we do not find it nec essary to address the remaini ng issue rai sed by the Fra nklins because sai d issue has been pret ermitted. 9 Mrs. Franklin would have se en the raised leve l of the loadin g r amp if sh e had been exercisingordinary care. The differences in testimony of the v arious deponents leave the picture as to what the state of affairs was on July 20, 1993, u nclear at best. This matter is best left to be fully dev eloped attrial and for the finder of fact to decide how easily the raised ramp could have been seen. We conclude there is a genuine issue of material fact as to whether or not the pr otruding loading ramp w as an “open and obvious” dang er.
Taking the facts and the inference s to be drawn from them in the bes t light so far
a s Mr s. Franklin is concer ned and disregarding al l else, we are of the opini on that the reasonable inferences to bedrawn from these facts are not so certain that all reasonable persons must agree on them. Ac cordingly, summary

judgment is inappropriat e. 1

In light of theforegoing, the judgment of the trial court granting Allied’s motion for summary judgment is reversed , and this is matter remanded for f urther proceed ings
nec essary and consistent with this opinion. Costs of this appeal are taxed to Allied, for which execution may

issue if necessary.

HIGHERS, J.

CONCUR:10

FARMER, J.

LILLARD, J.