Session January 17, 2017
from the Circuit Court for Shelby County No. CT-004872-13
James F. Russell, Judge
premises liability case, the plaintiff appeals the trial
court's grant of summary judgment to the defendant
property owner. Discerning no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
A. McLaughlin, Memphis, Tennessee, for the appellant,
Forrest R. Jenkins, Memphis, Tennessee, for the appellees,
Memmex, Inc. d/b/a Salsa Cocina Mexicana Restaurant.
Steven Stafford, P.J. W.S., delivered the opinion of the
court, in which John W. McClarty and Arnold B. Goldin, JJ.,
STEVEN STAFFORD, JUDGE
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.
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.
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.
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
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.
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.
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.
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.
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