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Cruce v. Memmex Inc.

Court of Appeals of Tennessee, Jackson

February 7, 2017

MARGARET CRUCE
v.
MEMMEX INC. D/B/A SALSA COCINA MEXICANA RESTAURANT

          Session January 17, 2017

         Appeal from the Circuit Court for Shelby County No. CT-004872-13 James F. Russell, Judge

         In this premises liability case, the plaintiff appeals the trial court's grant of summary judgment to the defendant property owner. Discerning no error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          David A. McLaughlin, Memphis, Tennessee, for the appellant, Margaret Cruce.

          Forrest R. Jenkins, Memphis, Tennessee, for the appellees, Memmex, Inc. d/b/a Salsa Cocina Mexicana Restaurant.

          J. Steven Stafford, P.J. W.S., delivered the opinion of the court, in which John W. McClarty and Arnold B. Goldin, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         Because this case was decided on summary judgment, the facts are largely undisputed and are taken from the statement of undisputed facts contained in the record. On December 7, 2012, Plaintiff/Appellant Margaret Cruce attended a party on the second floor of the restaurant owned by Defendant/Appellee Memmex, Inc. d/b/a Salsa Cocina, Mexicana Restaurant ("Appellee Restaurant"). As Ms. Cruce, who was in her early seventies at the time of the incident at issue in this case, ascended the stairs to the party, she noticed that the railing on her right side was decorated with garland and Christmas lights. On her ascent, Ms. Cruce had trouble finding a place to put her hand on the rail due to the decorations. Although Ms. Cruce later testified that she did not notice whether a railing was on the other side of the stairs, it is undisputed that the stairs to the second floor party room were flanked on both sides by railing and that the other railing had no decorations on it.

         The party ended several hours later. Ms. Cruce again used the staircase to descend from the party room. When Ms. Cruce reached for the handrail, this time to her left, to steady herself, Ms. Cruce was unable to grasp the railing itself and instead only gripped a "handful of garland." Because she was only grasping garland, Ms. Cruce let go of the garland as she started to fall. Ms. Cruce fell to the floor, suffering a femoral shaft fracture on her left leg. The fracture required a cast from her ankle to the top of her leg and ultimately necessitated surgery.

         Ms. Cruce filed a complaint for damages against Appellee Restaurant on November 11, 2013. Therein, Ms. Cruce alleged that Appellee Restaurant created a dangerous condition by "covering a safety device, i.e., handrail, with items that impeded its use" and that Ms. Cruce suffered damages as a result. Accordingly, Ms. Cruce sought compensatory damages in the amount of $250, 000.00, as well as special damages and post-judgment interest. The ad damnum clause was later amended by permission from the trial court to seek $500, 000.00 in compensatory damages.

         Appellee Restaurant filed an answer to the complaint on December 20, 2013, generally admitting the facts surrounding Ms. Cruce's fall but denying that her fall was caused by any dangerous or defective condition on its premises. In addition, Appellee Restaurant raised comparative fault as an affirmative defense.

         The parties thereafter engaged in discovery, and the depositions of Ms. Cruce and Cesar N. Parra, the owner of Appellee Restaurant, were taken. Ms. Cruce testified that she noticed the Christmas decorations on her way up to the second floor party room and that, although she had difficulty finding a place to put her hand, she was able to ascend the stairs without incident. Ms. Cruce did not notify Appellee Restaurant staff of her difficulty using the railing on her ascent, and she testified that she had no difficulty in seeing where she was going. Ms. Cruce explained that she did not notice the other unencumbered railing when she descended the stairs and, therefore, did not attempt to use the unencumbered railing at any point during either her ascent or descent. According to Ms. Cruce, she first thought that her fall was caused by a "grip strip, " but that, after thinking about her fall, she came to realize that her fall was caused by her inability to properly grasp the handrail.

         In Mr. Parra's deposition, he testified that he placed the Christmas decorations on one of the stair rails, as he had done the prior fifteen years. In those fifteen years, Mr. Parra testified that no one had ever fallen down the stairs prior to Ms. Cruce's fall, either as a result of the Christmas decorations or for any other reason.

          On February 29, 2016, Appellee Restaurant filed a motion for summary judgment. Therein, Appellee Restaurant argued that summary judgment was appropriate because Ms. Cruce's evidence was insufficient to establish that the handrail and stairs at issue constituted a dangerous or defective condition or that Appellee Restaurant had notice of any dangerous or defective condition. In support, Appellee Restaurant filed a statement of undisputed material facts generally outlining the facts leading up to Ms. Cruce's fall and pointing out the existence of the second handrail that was completely unencumbered by Christmas decorations, Ms. Cruce's notice of the Christmas decorations on her ascent to the party room, the fact that no similar accident had occurred in the prior fifteen years that the stairway had been decorated, and the fact that no other person was descending the stairs next to Ms. Cruce at the time she fell.

         On March 23, 2016, Ms. Cruce filed a response to Appellee Restaurant's summary judgment motion. Therein, Ms. Cruce, citing to her complaint, contended that the handrail constituted a safety device and that Appellee Restaurant's "decision to impede, cover and otherwise hinder [Ms. Cruce's] access to [the] safety device creates a dangerous condition." Ms. Cruce further argued that the question of whether a dangerous condition exists is a question of fact not amenable to summary judgment. On the same day, Ms. Cruce filed a response to Appellee Restaurant's statement of undisputed material facts in which she either admitted or failed to respond to every fact set forth by Appellee Restaurant.

         The trial court held a hearing on the pending summary judgment motion on April 8, 2016. During the hearing, counsel for Ms. Cruce conceded that the unencumbered handrail "would not be considered dangerous" and clarified that it was not the handrail itself that caused Ms. Cruce to fall. Rather, counsel asserted that Ms. Cruce's inability to grasp an accessible handrail prevented her from "securing her balance, " which ultimately led to her fall. Counsel for Appellee ...


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