United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
Clifford Shirley, Jr. United States Magistrate Judge.
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].
before the Court is Defendant Bass Pro Outdoor World,
LLC's Motion for Summary Judgment [Doc.
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. 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].
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].
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.
Plaintiff Nancy Isaac's Deposition Testimony
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].
Plaintiff Roger Isaac's Deposition Testimony
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
Gary Cobble's Affidavit
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.]. 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