IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 1, 2017

JOE MITCHELL v. STATE OF TENNESSEE

 Appeal from the Claims Commission for the Middle Division

No. T20160698 Robert N. Hibbett, Commissioner

No. M2016-02044-COA-R3-CV

Joe Mitchell (“Mitchell”) appeals the July 22, 2016 order of the Claims Commission for 

the Middle Division (“the Claims Commission”) granting summary judgment to the State 

of Tennessee (“the State”) on Mitchell’s claim for negligence. We find and hold that the 

State made a properly supported motion for summary judgment negating an essential 

element of Mitchell’s claim, i.e., injury or loss, and that Mitchell failed to produce 

evidence showing a genuine disputed issue of material fact. We, therefore, affirm the 

grant of summary judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission 

Affirmed; Case Remanded

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

BENNETT and KENNY W. ARMSTRONG, JJ., joined.

Joe Mitchell, Only, Tennessee, pro se appellant

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor 

General; and Charlotte Davis, Assistant Attorney General for the appellee, the State of 

Tennessee. 

OPINION

Background

Mitchell is an inmate housed at the Turney Center Industrial Complex in Only, 

Tennessee. Mitchell filed a claim for negligence against the State with regard to an 

alleged injury that he claims occurred on September 19, 2015. Specifically, Mitchell 

alleged:

09/29/2017
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On Friday the 18th, day of September 2015 at approximately 10:45 P.M. the 

power went of [sic] in my assigned cell which is Unit 4 A-201 and was not 

turned back on until the following Monday which was the 21st, day of 

September 2015. Subsequently on the 19th, Saturday night while my power 

was still out I was getting down out of my bunk to use the bathroom and 

missed my footing on the table due to the darkness in the cell and slipped 

and hurt my Knee and Lower back.

The State filed a motion for summary judgment supported, in part, by an excerpt 

from Mitchell’s deposition wherein Mitchell described the incident stating:

I fell down in the middle of the night. . . . Just getting up at nighttime - - or 

getting up in nighttime to use the bathroom, it’s just - - there’s no lights in 

the cell. It’s black dark in there. And they don’t have ladders on the bed or 

nothing to get down so you’ve got to turn around trying to find the table, 

and then trying to find the stool, and then find the floor. 

Mitchell testified that his roommate was asleep and did not wake when Mitchell fell. 

When asked what happened after he fell, Mitchell stated: “Nothing. I couldn’t - - I just 

went to the bathroom, and then used it, and then got back up in the bed.” When asked 

about pain, Mitchell stated: 

Well, it - - it was immediate - - it and what catches you is the floor. So it 

was more or less like a jam-type thing. I mean, it was just slipped, and all 

the pressure went on the left leg, the left side, you know, getting off of 

there; that’s what I was reaching down and getting something to step down 

on that I missed.

The State also submitted portions of Mitchell’s medical records, which showed 

that Mitchell had suffered from knee and foot pain prior to the incident at issue. The 

medical records also included a report for x-rays taken on October 6, 2015, which stated, 

in pertinent part:

LUMBAR SPINE 2V*:

AP and lateral views of the lumbosacral spine are presented for evaluation. 

There are no prior comparative studies. The lumbar vertebral bodies are 

normal height. There is very slight disc space narrowing at the L5-S1 level. 

Early degenerative changes of the articular facets are present.

The pedicles are intact. The SI joints are normal.
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IMPRESSION:

Mild early degenerative changes of the lumbosacral spine.

KNEE LT 2 V:

2 views of the left knee are presented for evaluation. There are no prior 

comparative studies. Artifact is interposed over the medial collateral 

ligament. No acute abnormalities are demonstrated. Very slight joint space 

narrowing is seen with retropatellar narrowing. This is within normal limits 

for the patient’s age.

IMPRESSION:

Mild early degenerative changes without traumatic abnormalities or

articular irregularity.

Mitchell responded to the motion for summary judgment and the State’s statement 

of undisputed material facts and denied that he had ever complained of any injury to his 

foot.

By order entered July 22, 2016, the Claims Commission granted the State’s 

motion for summary judgment after finding and holding, inter alia, “the State has 

provided medical records to show that there is no credible proof that [Mitchell] suffered 

an injury from his alleged fall,” and that Mitchell failed to provide medical evidence of 

an injury, and therefore, Mitchell cannot establish the essential element of injury or loss. 

Mitchell filed a motion to alter or amend, which the Claims Commission denied by order 

entered September 28, 2016. Mitchell appeals the grant of summary judgment to the 

State.

Discussion

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

the Claims Commission erred in granting summary judgment to the State. 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 
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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 

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 
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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).

As our Supreme Court has noted, the State has waived sovereign immunity 

pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E) with regard to claims for the 

“[n]egligent care, custody and control of persons . . . ,” in cases involving “injuries to 

persons confined in penal institutions, residences, or health facilities maintained by the 

state.” Stewart v. State, 33 S.W.3d 785, 791-92 (Tenn. 2000). Determinations of liability 

in such cases “shall be based on the traditional tort concepts of duty and the reasonably 

prudent person’s standard of care.” Tenn. Code Ann. § 9-8-307(c) (Supp. 2016). 

With regard to negligence our Supreme Court has instructed:

[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).

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

The record on appeal reveals that the State made a properly supported motion for 

summary judgment negating an essential element of Mitchell’s claim, i.e., injury or loss. 

The burden then shifted to Mitchell to set forth specific facts showing a genuine disputed 

issue of material fact, “which could lead a rational trier of fact to find in favor of 

[Mitchell].” Rye, 477 S.W.3d at 265. The record on appeal reveals that Mitchell failed to 

do so.

In his brief on appeal, Mitchell argues that the Claims Commission erred in 

granting summary judgment before allowing him time for discovery. Prior to the Claims 

Commission ruling upon the State’s motion for summary judgment, Mitchell had 

propounded several discovery requests that the State had not yet answered. Specifically, 

Mitchell submitted a request for admissions, a second set of interrogatories and request 

for production of documents, and a motion requesting production of videos and pictures. 

When the State responded to Mitchell’s motion to alter or amend the judgment, it 

attached as exhibits Mitchell’s unanswered discovery requests. 
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A careful and thorough review of these discovery requests shows that Mitchell 

was seeking information about who “reset the breaker that restored the electrical power” 

in specified prison cells on the dates of April 3, 2016, and September 21, 2015, and the 

length of a ladder attached to a top bunk in unit 4 A-201; and admissions regarding 

whether the top bunk in unit 4 A-201 had a ladder or steps, and whether the electrical 

power was turned on in unit 4 A-201 on September 21, 2015. Mitchell further requested:

(a) A copy of the log book that shows what time unit 4 A was called to 

breakfast on 19th, day of September 2015;

(b) A Copy of all Videos and/or DVD’s that shows [Mitchell] talking to 

Sgt. Rossen in front of the chow hall at breakfast on the morning of 

September 19, 2015;

(c) A Copy of all Videos and/or DVS’s that show [Mitchell] going to/at the 

window of operations on 9-19-2015 at appx. 12:30 in the afternoon to talk 

to Sgt. Rossen and Lt. Lake.

(d) [Mitchell] would request “pictures” of “top-bunks” that were used in 

military barracks and summer camps for the last few decades.

None of these discovery requests propounded by Mitchell asked for any 

information whatsoever of a medical nature. Even if the Claims Commission erred in 

ruling upon the State’s motion for summary judgment before allowing Mitchell time to 

complete this discovery, and we in no way suggest that the Claims Commission did so 

err, such alleged error would be harmless as the information sought by Mitchell would 

not have enabled him to satisfy his burden of showing a genuine disputed issue of 

material fact with regard to injury or loss.

The State made a properly supported motion for summary judgment negating an 

essential element of Mitchell’s claim, and Mitchell failed to produce evidence showing a 

genuine disputed issue of material fact. We affirm the Claim Commission’s grant of 

summary judgment to the State.
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Conclusion

The judgment of the Claims Commission is affirmed, and this cause is remanded 

to the Claims Commission for collection of the costs below. The costs on appeal are 

assessed against the appellant, Joe Mitchell.

_________________________________ 

D. MICHAEL SWINEY, CHIEF JUDGE