### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 12, 2000 Se ssion CYNTHIA JUN

E BURGESS, e

t vir., RICKY

ALBERT BURG

ESS, v. TIE CO. 1, LLC. Direct Appeal from the Circuit Court for Coffee County No. 28,893 Hon. L. Craig Johnson, Circuit Judge

No. M1999-02232-COA-R3-CV - Filed November 15, 2000

In this slip and fall ac

tion the Trial Court

granted defe

ndant s u mmary judgment. We vacate and remand.
Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Vacated. H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ..J., and D. M ICHAEL S WINEY , J., joined. Mark A. Williams, Manchester, Te nnessee, for Plaintiffs-Appellants, Cynthia June Burgess and Ricky Alber

t Burgess. Gerald L. Ew

ell, Tullahoma, Te

nnessee, for De

fendant-Appell

ee, Tie Co. 1, L

LC.

OPINION

This action resulted from a slip and fall on ice at a car wash owned by defendant. The Trial Judge granted defendant summary judgment, and pla intiffs have appealed. Th e record establis

hes that on January

29, 1997, at appro

xima tely 10:30 a.m., plaintif f slipped and fell on ice on d efendant’s pre

mises while

utilizing the service of its self-service car wash. One of the plaintiffs t

estified it was pre

tty warm tha

t morning, and the

other testifie

d sh e didn’t

“ think it w as f reez ing t hat mor nin g”. D efen dan t’s affi dav its est abl ish ed t hey h ad no actua l knowledge of any icy condition, and that they inspected the premises every day, seven da ys a week. An employee of the defendant testified that he inspected the premises at 5:00 p.m. on January 28,-2-

and again at 5:00 p.m. on January 29, and observed no icy conditions, nor had anyone complained about an icy condition.

A party seeking summary judg ment must establish ther e is no gen uine issue of material fact, and

that it is entitled to a judgment as a matter of law. Byrd v. Hall, 847 S.W.2d 208 (Ten n. 1993). No presump tion of correctn

ess attaches to de

cisions granting

summary judg

ments, because they involve questions of law. Hembree v. State , 925 S.W.2d 513 (Tenn. 1996).

As a general rule, negligence cases are not amenable t o dispo sition on summary judgment unless f

rom all the facts t

aken together

and with all

the inferences to be

drawn and facts and inferences are so certain and uncontraverted that reasonable minds would agree. See Keene v. Cracker Barrel Old

Country Store , 835 S.W.2d 501 (Tenn. Ct. App. 1992). In deciding a motion for summary judgment, the court must

view the pleadings and evidence before it in the light most favorable to the opponent of the motion on an issue-by-issue basis. Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276 (Tenn. Ct. App. 1977).

We said in Martinv. Washmaster Auto Center, U.S.A., 946 S.W.2d 314 (Tenn. Ct. App. 1996): In order for an owner or operator of pr

emises to be held lia

ble for neglig

ence in allowing a dangerous or defective condition to exist on its premises, it must be shown that the condition (1) was caused or created by the owner, operator, or his ag ent, or (2) if the condi tion wa s created by someone other tha

n the owner, oper

ator, or his agent, there must be actual or constructive notice on the part of the owner or operator that the condition existed prior to the accident. . . . Constructive knowledge can be shown by proving the dangerous or defective condition existed for such a length of time that the defendant, in

the exercise of r

easonable car

e, should have become aware of such condition. . . . P. 318 (internal citations omitted).

Considering the evidence in the light of the above standard, a trier of fac t could reasonably

infer that the icy

conditions were created during the night of January 28, 1997, or e arlier. The trier of fact could further r easonably infer that the icy c onditions were not created on the morning of the accident, because taking the strongest legitimate view of plaintiff’s testimony, it was not freezi ng weather th at morning.

The evidence estab

lished that the def

endant only

inspected the premises at 5:00 p.m. eachday. The iss

ue thus becomes wh

ether in mi d-winter defen dant had a duty to inspect the premises early in the morning for icy conditions, as it had a du ty to maintain its premises in a reasonably

safe condition fo

r its invitees.-3- Whether an owner has exercised the requi red degree of

care to its invitee

s is a qu estion of fac t for the jury. Kendall Oil Co. v. Payne , 293 S.W.2d 40 (Tenn. Ct. App. 1955). Taking the strongest legitimate view of the evidence in favo r of the plaintiffs, an

d according al

l reasonable

inferences in their favor, we conclude that summary judg ment was inappropriate in

this case, and we vacate th

e Trial Court’s jud

gment and reman

d for further pr

oceedings cons

istent with this Opinion. The co

st of the appeal is

taxed to Tie Co. 1, L

LC.

_________________________ H ERSCHEL P ICKENS F RANKS , J.