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Beverly v. Hardee's Food Systems, LLC

Court of Appeals of Tennessee, Knoxville

June 15, 2015

KYLE BEVERLY, ET. AL.
v.
HARDEE'S FOOD SYSTEMS, LLC

Session April 14, 2015

Appeal from the Circuit Court for Roane County No. 13CV60 Hon. Michael S. Pemberton, Judge

John D. Agee and Amanda I. Lowe, Clinton, Tennessee, for the appellants, Kyle S. Beverly and Mary Helen Beverly.

Kenneth W. Ward, Knoxville, Tennessee, for the appellee, Hardee's Food Systems, LLC d/b/a Hardee's, a foreign corporation.

John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

On the morning of September 12, 2012, Kyle Beverly and his wife, Mary Helen Beverly (collectively "Plaintiffs"), traveled to a Hardee's restaurant owned by Hardee's Food Systems, LLC d/b/a Hardee's, a foreign corporation ("Defendant"). Plaintiffs frequently dined at the restaurant for breakfast. Just as they had on many occasions, Plaintiffs parked their vehicle in the designated parking area around 9:45 a.m. and entered the restaurant from the side entrance into a vestibule. Once inside the vestibule, Mrs. Beverly entered the first door, which opens to a restroom area, while Mr. Beverly entered the second door, which opens to the restaurant. Shortly after Mr. Beverly entered the restaurant, Charlie Oran, another frequent diner at the restaurant, attracted Mr. Beverly's attention. Mr. Beverly waived at Mr. Oran and others seated with Mr. Oran and then walked into the dining area where Mr. Oran was seated. As Mr. Beverly walked toward Mr. Oran's table, he slipped in a puddle of vomit and fell, causing injury to his right ankle.

Plaintiffs later learned that on the morning of the accident, a woman and two children were seated near Mr. Oran and his companions, Carolyn Mustin, Keith Mustin, and Larry Billings. While seated, one of the children vomited on the floor. The woman wiped the child's mouth, cleared the table, gathered the children and their belongings, and left with the children, passing Mr. Beverly on her way out of the restaurant. The woman did not inform the employees on duty of the vomit. Likewise, neither Mr. Oran nor his companions informed the employees of the vomit, despite the fact that some witnessed the child vomit, while another later became aware of the vomit prior to Mr. Beverly's arrival. Instead, Mr. Oran and his companions attempted to alert Mr. Beverly as he walked toward the vomit.

The restaurant's security cameras recorded the interaction between the woman and the children and the subsequent accident. The recording established that the child vomited on the floor 3 minutes and 11 seconds before the fall and that Mr. Beverly slipped in the vomit 19 seconds after entering the restaurant and 2 seconds after he looked at the ground. The recording also established that the employees were not in the area when the child vomited or after the child vomited prior to the fall. However, the service counter was less than 20 feet from where the child vomited and Mr. Beverly fell.

Plaintiffs filed suit against Defendant, alleging negligence. Specifically, Plaintiffs claimed that Defendant was negligent by failing to maintain the premises and by failing to warn the customers of the dangerous condition. Plaintiffs sought $75, 000 in compensatory damages for Mr. Beverly's injuries and $10, 000 in compensatory damages for Mrs. Beverly's loss of consortium. Defendant responded by denying wrongdoing and filing a motion for summary judgment, arguing that Plaintiffs could not establish that Defendant created the dangerous condition that caused the fall or that Defendant had any knowledge, either actual or constructive, of the dangerous condition prior to the fall. Attached to the motion were affidavits completed by Pamela Wilkerson, Defendant's General Manager; Mrs. Mustin; Mr. Mustin; and Mr. Oran. The affidavit testimony confirmed that the employees were not alerted to the vomit on the floor and that the employees did not pass through the dining area where the vomit was located.

Plaintiffs responded by asserting that material questions of fact remained from which the trier of fact could determine that Defendant had constructive notice of the dangerous condition. Plaintiffs noted that reasonable minds could differ as to whether 3 minutes and 11 seconds was a sufficient length of time to charge Defendant with constructive notice of the dangerous condition. Attached to the response was an affidavit completed by Mr. Billings, who provided that the vomit was "clearly visible to the staff working the service counter which was less than twenty (20) feet away." Defendant countered by asserting that Plaintiffs could not establish Defendant's duty to Mr. Beverly when the dangerous condition was open and obvious, thereby establishing Mr. Beverly's failure to exercise reasonable care for his own safety.

Mr. Beverly, Mr. Billings, and Mrs. Wilkerson provided deposition testimony. Mr. Beverly testified that the weather was dry on the day of the accident, that he was not intoxicated, and that he had not taken medication that affected his balance or caused dizziness. He recalled that he encountered a woman and two small children as he walked toward the restaurant and that he heard someone call his name when he entered the restaurant. He stated that he did not see the vomit before he slipped. He agreed that he would have noticed the vomit if he had been examining the floor as he walked.

Mr. Billings testified that he did not see the child vomit but that he later learned that a child had vomited. He agreed that neither he nor anyone else informed the employees of the vomit and that the employees had likely not observed the vomit prior to the fall. He noted that employees at the restaurant were quick to clean up spills in the dining area. He believed the vomit was clearly visible to the employees working behind the service counter and to anyone walking ...


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