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Isaac v. TF-Universe, LLC

United States District Court, E.D. Tennessee, Knoxville

June 30, 2017

NANCY ISAAC, and husband, ROGER ISAAC, Plaintiffs,
v.
TF-UNIVERSE, LLC, Defendant.

          MEMORANDUM AND ORDER

          C. Clifford Shirley, Jr. United States Magistrate Judge.

         This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 10].

         Now before the Court is Defendant Bass Pro Outdoor World, LLC's Motion for Summary Judgment [Doc. 44].[1] The Plaintiff filed a Response [Doc. 46] objecting to the Motion, and the Defendant filed a Reply [Doc. 48]. Further, the Plaintiffs filed a Supplemental Response [Doc. 49], which the Court has also considered.[2] The Motion is now ripe for adjudication. Accordingly, for the reasons more fully explained below, the Court DENIES the Motion for Summary Judgment [Doc. 44].

         I. BACKGROUND

         The Complaint was originally filed in the Circuit Court for Sevier County, Tennessee, but was later removed [Doc. 1] to this Court on January 25, 2016. The Complaint arises out of personal injuries sustained when Plaintiff Nancy Isaac tripped on December 28, 2014, over a piece of concrete placed in the parking lot of a Bass Pro store located at 3629 Sportsmann Place, Kodak, Tennessee 37764 [Doc. 1-1 at ¶¶ 6-7.]. Specifically, the Plaintiffs allege that the parking lot was insufficiently lit and that the Defendant failed to make the concrete barrier visible or to warn Plaintiff Nancy Isaac of the existence of poor lighting or the visibility of the concrete barrier. [Id.]. The Compliant relies upon the doctrine of res ipsa loquitur in reference to the Defendant's premises being in an unreasonable and dangerous. [Id. at ¶ 8]. Further, the Plaintiffs allege that the Defendant's negligence was the direct and proximate result of Plaintiff Nancy Isaac's personal injuries and that as a result of the negligence, Plaintiff Roger Isaac suffered the loss and diminution of services and consortium of his wife. [Id. at ¶¶ 9-10].

         In briefing the Motion, the parties have submitted excerpts from Plaintiff Nancy Isaac's deposition, excerpts from Plaintiff Roger Isaac's deposition, and the Affidavit of Gary Lee Cobble, the Defendant's expert witness.

         A. Plaintiff Nancy Isaac's Deposition Testimony

         Plaintiff Nancy Isaac testified that on December 28, 2014, her husband, Plaintiff Roger Isaac, wanted to buy some fishing bait and that Bass Pro was ready to close at 9:00 p.m. [Doc. 46 at 4]. Plaintiff Nancy Isaac dropped Plaintiff Roger Isaac off at the front entrance of the store and then drove the camper around the parking lot to park. [Id. at 4, 6]. While she was driving, “[i]t was so dark that [she] drove over “one of those cement things.” [Id. at 16]. She testified that she did not see the concrete barrier but that she “felt it when [she] went ‘thump' over it.” [Id.]. Plaintiff Nancy Isaac testified that once she came to a stop, she got out of the driver's side door, walked around the camper, and noticed that it was sitting on top of the “parking thing.” [Id. at 19]. She described that she was straddling the parking stop. [Id. at 18]. After Plaintiff Nancy Isaac exited the vehicle, she “got the dogs' cage out, walked back around and put it on that green spot.” [Id. at 19]. She then got two Pomeranians and dropped them off. [Id. at 19-20]. As she “started to go back to get two more, ” that is when she fell. [Id. at 19]. Plaintiff Nancy Isaac stated that she crossed over the concrete parking stop twice before she fell. [Id. at 45]. She testified that there were no lights and that it was “pitch black.” [Id. at 17]. She continued that the ambulance and police came and that everyone who had a flashlight had it on so that they could see. [Id.]. She testified that the light pole was not there at the time of the fall or that if there were lights there, they were not working. [Id. at 22]. Plaintiff Nancy Isaac repeated, “It was just so dark that you couldn't see anything.” [Id. at 43]. With respect to the concrete barrier, Plaintiff Nancy Isaac testified, “Yes, it should have been painted like this color or something because it blended in so well that you couldn't see it.” [Id. at 44].

         B. Plaintiff Roger Isaac's Deposition Testimony

         Plaintiff Roger Isaac testified during his deposition that the lighting where the camper was parked “wasn't very good.” [Doc. 46 at 47]. He could not recall whether there was a light pole at the time of the fall. [Id.]. Further, Plaintiff Roger Isaac testified that he could not see anything and that he could barely see Plaintiff Nancy Isaac. [Id. at 48]. He stated that when the ambulance arrived, “[T]hey had to turn the lights on to see her because she was on the back side of that camper and there was no light.” [Id. at 49]. He further testified, “It was pitch black back there.” [Id.].

         C. Mr. Gary Cobble's Affidavit

         In support of its Motion for Summary Judgment, the Defendant submitted the expert opinion of Mr. Gary Cobble. [Doc. 44-1]. Mr. Cobble visited the parking lot on October 27, 2016, and January 19, 2017, in order to inspect the subject concrete curb and lighting at the location. [Id. at ¶ 3]. Mr. Cobble states that the six inch concrete curb was designed as an integral part of the parking lot's surface water drainage and that it was not required to be painted per the engineering's design plan and drawings. [Id. at ¶ 4]. Further, Mr. Cobble states that he discussed the site design plans of the subject parking lot with Mr. Butch Stott, the Director of Code Enforcement for the City of Sevierville, and learned that the site design plans for the subject parking lot was approved by the Sevierville Planning Commission on June 3, 2004, and again on February 3, 2005, and that the building permit was issued on June 27, 2005. [Id. at ¶ 5]. On review of the “As-Built Survey, ” Mr. Cobble was able to determine as follows:

[T]he subject line pole at the location of the Plaintiff's fall has been located there since December 22, 2005. I also physically measured the location of the light pole from 4 strategic physical points in the parking lot to further verify the location of the subject light pole corresponds to the survey measurements and I was able to conclude that according to the survey, the subject light has been there since 2005 and in fact was in place at the time of the subject incident which occurred on December 28, 2014.

[Id. at ¶ 6]. Mr. Cobble continues that he took 19 light meter readings on the asphalt parking lot and the concrete curb and that the readings were taken from the nearest light pole extending to the grass island. [Id. at ¶ 7]. Mr. Cobble states that the highest light meter reading was 1.0 fc, with the lowest light meter reading of .2 fc, and an average light meter reading of 0.65 fc. [Id.].[3] He submits that through his light meter testing, he was able to determine that the lighting of the parking lot was in compliance with the recommended standards of the Standard Building Code (“SBC”), although the SBC does not mandate lighting and illumination standards for parking lots. [Id.]. Moreover, Mr. Cobble states that the light pole, lighting, and the concrete curb in the area are constructed as designed and as approved by the Code Enforcement Department of the City of Sevierville. [Id. at ¶ 8]. Mr. Cobble concludes: “Furthermore, it is my opinion that the subject light ...


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