### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON AUGUST 30, 2001 Session LAQUITA AILSWORTH v. AUTOZONE , INC., ET AL 

### . Direct Appeal from the Circuit Court for Shelby County No. 92410 T.D.; The Honorable Robert A. Lanier, Judge

No. W2000-03024-COA-R3-CV - Filed December 31, 2001

This appeal arises from the fall of the Appellant outside the Appellee store. The Appe llantfiled a complaint against the Appellees in the Circuit Court of Shelby County alleging that her injuries were proximate

ly caused by the Appellees’ neglige nce in allowing an icy condition to exist on the walkway in front of

the store. The Appellees filed motions for summary judgment. The trial court granted the Appellees’ motions for summary judgment.

The Appellant appeals the grant of summary judgm en t in favor of the Appellees by the Circuit Court of Shelby County. For the reasons stated herein, we reverse the trial c ourt’s decision. Tenn. R. App.P. 3; Appe al as of Rig ht; Judgme

nt of the C ircuit Court Reve rsed and Remanded

A LAN E. H IGHERS , J., delive red the o pinion of t

he court , in which W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined. John Montague, James S. Powell, Carroll C. Johnson, III, Memphis, TN, for Appellant Sam L. Crain, Jr., Memphis, TN, for Appellee Autozone, Inc.
Robert A. Cox, Ja

mes F. Hor

ner, Mem phis, TN, f

or Appel lees S . Ri chard Bauman and Bauman Realty Company, Inc.
OPINION I. Facts and Procedural History

On Janua ry 16, 199 7, at appr

oximately 9:15 AM, the Appella

nt, Laquit a Ailswor th (“Ms. Ailsworth”), entered the Appellee store , A utozone, on 1211 Ea st Raines Ro ad in Memphis, Tennessee. After purchasing a car battery, Ms. Ailsworth e xited the store accompanied by a store employee who was carrying the car battery. Af ter taking four to five steps from theexit of the store,-2-

Ms. Ailsworth slipped and fell on a patch of ice approximately sixteen inchesby twenty-e ight inches. An Autozone assistant manager observed the pa tch of ice after Ms. Ailsworth fell.

The Appellee , Bauman Re alty Company (“Bauman Realty”), leased the property located at 1211 East Raines Road to Autozone. The Appe llee, Ric hard Bau

man (“Mr . Bauman” ), and Eli ese Bauman (“Ms. Bauman”) owned Bauman Realty. T

he lease agreem ent state d that Bauman Realty was responsible for maintaining

the exte rior por tions and s tructura

l element s of Demis ed Premis es or the building of which Demised Premises is a part and the appurtenances thereto and any improvements outside of De mised Premises erected by Landlord for Tenant and L andlord shall also maintain (without limitation) the roof, roof structures and supports, foundation and structural supports, walls (except interior painting), termite p rotectio n, floors (excep ting floor coverin g) and co nduits embedded in the floors, gutters, downspouts, streets, parking lot, curbs, sidewalks, and utility lines servicing Demised Premises to the extent not maintained by public utility companies in good and usable r epair du ring The Term.
The lease a

greeme nt also sta ted that Ba

uman Rea lty was re sponsible

“at its own expe

nse to main

tain throughoutThe Term all C ommon Faci lities in good rep air, cle an and c lear of snow, ice , . . . at all times when Demised Premises is open for business and for one-half hour after closing thereof.” The leasea greement authorized Autozone to make repa irs in the event of an emergency. The lea s e agreement

also authorized Autozone to make r epairs f ollowing th

e failur e of Bauma

n Realty to perform repairs or any necessary work within thirty days of receiving written notice from Autozone. Bauman Realty was not in possession of the property a nd had no employees on the site of the property. Autozone complain ed to Bauman Realty about water leaks in the roof of the store or the canopy over

the entr ance and exit to the store on several occasions including January 7, 1997 and January 15, 1997, the day preceding Ms. Ailsworth’s fall. There is no evidence in the recor d that Autozone complained to Bauman Realty about patches of ice on the ground.

On January

15, 1998, M s. Ailswor

th filed a c omplaint in

the Circu it Court of Shelby Count

y against Autozone, Mr. Bauman, Bauman Realty, and Union Planters Bank (“the defendants”). (TR
v. 1 pgs. 2-7 ). The c omplaint a lleged th at Ms. Ails worth

sustained injuries a

nd damage s proxima

tely caused by the defendants’ negligence in allowing an icy condition to exist on the walkway in front of the store. On February 26, 1998, Autozone filed an answer, a cross-claim against Mr. Bauman and Bauman Realty, and a third

- party complaint against Ms. Bauman. On June 15, 1998, Mr. Bauman and Bauma

n Realty f iled an a nswer. O n Octo b er 6, 1998, Ms. Ailsworth filed a consent order dismissi ng withou t prejudice Union Planters Bank as a defendant. The par ties conducted discovery, and on October 4, 1999, the deposition of Ms. Ailsworth was taken.-3-

Ms. Ailsworth testified by deposition thattwo days before her fall, there had been freezing rain in Memphis. Ms. Ailswo rth testified that the weather on the following two days was sunny and cold. Ms. Ailsworth testified that on the day of her f all, she saw da rk ice on

the stree ts. Ms. Ailsworth testified that

the entr ance do or and the

exit door at the store w ere the same set o f doors. Ms. Ailsworth testified that the patch of ice was loc ated to he r right asshe ente

red the s tore. Ms. Ailsworth testifie d that she

walked to

the left when she exited the store, took four to five steps from the exit door, and

fell on the

patch of ice. Ms. Ailsworth testified that she did not see the patch of ice when she entered or exited the store. Ms. Ailsworth testified that she did not see the patch of ice until afte

r she fell . Ms. Ailswort h testified that the patch of ice was thin and looked like the sidewalk. Ms. Ailsworth testified that she would not have seen the patch of ice even if she looked at it. Ms. Ailsworth testified that she didnot know how the patch of ice got on the sidewalk or how long it had been there. Ms. Ailsworth testified that she did not expect to see any ice.

The National Oceanic and Atmospheric Administration (“NOAA” ) records for the month of January, 1997 indic ate that Memphis received 3.6 inches of snow on January 10, 1997 and received rain on January 15, 1997. The NOAA records also indicate that the tempe

rature in Memphis reached
a high of fifty degrees and a low of t wenty-nine degre es on Janu ary 15, 1 997, the d ay befor e Ms. Ailsworth’s fall. The temperature in Memphis reached a high o f thirt y-five degrees and a low of seventeen degrees on January 16, 1997, the da y of her fall.
On November 19, 1999, Autozone filed a motion for

summary judgment. Autozone filed
a statemen t of undisputed mate

rial facts in suppor

t of its motio n for summa ry judgment. On February 23 , 2 000, Mr. Bauman, Ms. Bauman, and Bauman Realty filed a motion for summary judgment. Mr. Bauman, Ms. Bauman, and Bauman Realty filed a statement of undisputed material facts and Mr. Bauman’s affidavit in support of its motion for summary judgment. On November 3, 2000, the tri al court granted Autozone’s motion for summary judgment. On November 3, 2000, Autozone filed an order dismissing w ithout prej udice its c ross-cla im against

Mr. Bauma

n and its third-pa rty compla

int against Ms. Bauman. On November 20, 2000, the trial court granted Mr. Bauman, Ms. Bauman, and Bauman Realty’s motion for summary ju dgment. Th

is appeal followed.
II. Law and An alysis

The sole issue presented for our review is whether the trial court

erred by granting summary j udgment in favor of Autozone, Mr. Bauman, and Bauman Realty. The standa rds governi ng a n appella te court’s review of a trial court’s grant of summar y judgment are well settled in Tennessee. See Carvell v . Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Summary judgment is to be rendered by
a trial court “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the a

ffidavit s, if any, show that t here is n o genuine

is sue a s to any material fact and that the moving party is entitled to a judgment as a matter of law.” T ENN

. R. C IV

. P. 56.04. In ruling
on a motion for summary judgment, the trial court and the appellate court must consider the matter in a light most

favora ble to the nonmo vi ng party and must allow all reasonable inference s in the nonmoving party’s favor. See Carv ell , 900 S.W.2 d at 26; Byrd v. Ha ll , 847 S.W.2d 208, 215 (Tenn. 1993).-4-

The party seeking summary judgmen t bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v . Wells , 936 S.W.2 d 618, 622 (Tenn. 199 7); Downen v. Allstate Ins. Co. , 811 S.W.2d 523, 524 (Tenn. 1991). Once the moving party satisfies that burden, the burden then shifts to the nonmov ing party to set forth specific facts establishing that there are disputed, materia

l facts creating a genuine issue to be resolved by the trier of fact. See Byrd , 847 S.W.2d at 215. In appeals from grants of summary judgment, the ap pellate court must decide whether the trial court correctly applied Rule 56. See Hill v. Chattanooga , 533 S.W.2 d 311, 312 (Tenn. Ct. App. 19 75). The appella te court must make a

n entire ly fresh

determin ation bec ause only questions of law are presented; no presumption of correctness accompanies the trial court’s decision. See id. In cases involving premises liability, the premises owner ha s a duty to exerci se reas onable
care under

th e circumstances to prevent injury to persons lawfully on the premises. See Eaton v. McLai n , 891 S.W.2d 587, 593-94 (Tenn. 1994). This duty is based upon the assumption t hat a n owner has superior knowledge of any perilous condition thatmay exist on the property. See Kend all Oil Co. v. Payne , 293 S.W.2d 40, 42 (Tenn. Ct. App. 1955). The duty of a premises owner includes the obligation either to remove or warn against any latent, danger ous condition of which the owner is aware or

should be aware through the exercise of r easonable diligence. See Eaton , 891 S.W.2d at 594 (citations omitted) . “The duty imposed on the premises owner or occupier, however , does notinclude t

he respo nsibility to

remove o r warn a gainst ‘c onditio ns fro m which no unreaso nable ri sk
was to be anticipated, or from those which the occupier neither knew about nor could have discovered

with reasonable care.’” Rice v. Sa bir , 979 S.W.2d 305, 308-09 (Tenn. 1998) (quoting W. P AGE K EETON , P RO SSE R AND K EETO N ON THE L AW O F T ORTS § 61, at 426 (5 th ed. 1984)). In addition, “‘the pl aintiff m ust show tha

t the injur y was a r easonab le fore seeable

probabil ity, not just
a remote possibility, and that some ac tion within the [defendant’s] power more probably than not would have prevented the injury.’” Eaton , 891 S.W.2d at 594 (quoting Doe v. Linder Constr. Co. , 845 S.W.2d 173, 178 (Tenn. 1992)).

In order to prevail in a premises liability action, a plaintiff must show that the dangerous or defective condition (1) was “created by the owner or operator or his agent, (2) if the c ondition was
c reated by someone other than the owner or operator or his a gent, there must be actual o r constructive n oti ce on the part of the owner or opera tor that the condition existed prior to the accident.” Oglev. Winn-Dixie Greenville, Inc. , 919 S.W.2d 45, 47 (Tenn. Ct. App. 1995) (citation omitted). If liability is predicated upon the constructive knowledge of the defendant, a plaintiff can demonstr ate constructive knowledge by showing that the dangerous or defective condition existed for such lengt h of ti me that the defendant knew, or in the exercise of ordinary care should have known, of its existence. See Simmons v. Sears, Roebuck & Co. , 713 S.W.2d 640, 641 (Tenn. 1986) (citing Allison v. Blount Nat’l Bank , 390 S.W.2 d 716, 719 (Tenn. Ct. App. 1965)). “Alternatively, the notice r

equirem ent is met if the plaintiff can prove that the defendant’s method of ope ration created a hazardous situation foreseeably harmful to others.” Trebing v . Fl eming Co. , Inc. , 40 S.W.3d 42, 46 (Tenn. Ct. App. 2000) (citation omitted).-5-

Considering the evidence in the case at bar in light of the above standard, there is no evidence th at Autozone, Mr. Bauman, and Bauman Realty created or ha d actual notice of the patch of ice

. Reasona ble minds could differ, however, on the issue whether Autozone , Mr. Bauman, and Bauman Realty had constructive notice of the patch of ice. A tri er of fact could reasonably infer tha t the patch of ice was created during the early morning hours of Janua ry 16, 1997. The NOAA records indicate that the temperature on the day before Ms. Ailswo

rth’s fa ll rose to a

high of fi fty degrees butdropped below freezing in the early morning hours on the da y of her fall. Ms. Ailsworth testified by deposition that the weather on theday of Ms. Ailsworth’s fall was cold, and she observed patche s of ice on the road. Memphis received 3.6 inches of snow six days before Ms. Ailsworth’s fall, and Ms. Ailsworth

testifie d that Memp

his rece ived fre ezing ra

in tw o day s before

her fal l. While Ms

. Ailsworth testified in her deposition that she would not have seen the patch of ice eve n if she had looked at it, there is evidence in the record that an Autozone assistant manager observed the patch of ice after Ms. Ailsworth fell. Further, there is evidence in the record that Autozone was a ware of water leaks in the canopy over the entrance a nd exit to the store. There is evidence in the record tha t Autozone informed Bauman Realty on several occasions, including the day before Ms. Ailsworth’s fall, that the leaks needed to be repaired.

Whether a premises owner or occupier has exe rcised the requisite stand a rd of ca re to its invitees is a

question of fact for the jury. See Burge ss v. Tie Co. 1, LLC , 44 S.W.3d 922, 924 (Tenn. Ct. App. 2000). Our review of the record le ads us to conclude that reason ab le minds could differ
on the pertinent issues; therefore, we must reverse the gra nt of summary judgment in favor of Autozone, Mr. Bauman, and Bauman Realty and remand this case to the trial court for a

jury tria l.

III. Conclusion

For the foregoing re asons, we re verse the decision of the trial court granting summary judgmentin favor of Autozone, Mr. Bauman, and Bauman Realty. We remand this case to the trial court for fur ther pro ceeding s consiste

nt with this opinion. Costs of this appeal are taxed against the Appellee s, Autozone, Inc., S. Richard Bauman, and Bauman Re alty Co., Inc., for which execution may issue if necessary.

___________________________________ ALAN E. HIGHERS, JUDGE