Session April 12, 2017
from the Circuit Court for Davidson County No. 13C3528
Hamilton V. Gayden, Jr., Judge
sued the owner and the operator of a public venue after
slipping on liquid on the floor and injuring herself.
Defendants moved for summary judgment. In granting summary
judgment, the trial court concluded, based upon the
undisputed facts, that defendants did not have actual or
constructive notice of the liquid on the floor. Plaintiff
appeals, arguing that wet spills throughout the venue and two
other slip and fall incidents on the concourse area
constituted a pattern of conduct, a recurring incident, or a
general or continuing condition sufficient to put defendants
on constructive notice of the liquid causing Plaintiff's
fall. Because Plaintiff failed to provide sufficient evidence
of constructive notice, we affirm the grant of summary
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Neal McBrayer, J., delivered the opinion of the court, in
which John W. McClarty, J., joined. Frank G. Clement Jr.,
P.J., M.S., filed a separate, dissenting opinion.
L. Cooper, Nashville, Tennessee, for the appellant, Wanda
Michael Clemons, Nashville, Tennessee, for the appellees,
Sports Authority of the Metropolitan Government of Nashville
& Davidson County, TN, and Powers Management, LLC.
NEAL McBRAYER, JUDGE
September 4, 2012, Wanda Katz was attending a concert
co-headlined by Kiss and Mötley Crüe at the
Bridgestone Arena. At around 10:20 p.m., Ms. Katz left her
seat to make a purchase at the concession stand. On her way,
she slipped and fell in a pool of liquid between sections 115
and 116 of the "100 Concourse" area. According to
Ms. Katz, just before she fell, she noticed three people
standing nearby, one of whom was carrying a small broom and
dustpan. As a result of the fall, Ms. Katz sustained injuries
to her left knee, which required two surgeries.
August 29, 2013, Ms. Katz filed a premises liability action
in the Circuit Court for Davidson County, Tennessee, against
the Sports Authority of the Metropolitan Government of
Nashville and Davidson County, the owner of Bridgestone
Arena, and Powers Management, LLC, the manager of the arena,
(collectively, "Defendants") for personal injuries
sustained in the fall. The complaint alleged that Defendants
were negligent in failing to maintain the arena in a
reasonably safe condition, in failing to properly clean the
spill off the floor about which they knew or should have
known had they exercised ordinary care, in failing to warn
patrons of the property's condition, in failing to
correct the dangerous condition, and in failing to take
reasonable precautions to protect patrons on their premises.
Defendants answered, denying all material allegations in the
complaint and asserting several affirmative defenses.
some discovery, Defendants filed a motion for summary
judgment. In their motion, Defendants argued that: (1) a
dangerous condition did not exist; (2) they had no actual or
constructive knowledge of any dangerous condition; and (3)
Ms. Katz was at least fifty percent at fault for the accident
that led to her injuries. In support of their motion,
Defendants attached excerpts of Ms. Katz's deposition;
excerpts of the deposition of Ben Bosse, the director of
event services at Bridgestone Arena; and portions of Powers
Management's responses to Ms. Katz's interrogatories.
response to the motion for summary judgment, Ms. Katz argued
that there was a genuine issue of material fact as to whether
Defendants had constructive notice of the dangerous
condition. Specifically, she pointed to evidence that: (1)
three of Defendants' employees were standing nearby at
the time that she fell; (2) employees were instructed not to
clean up until after the concert was over; and (3) at least
one other slip-and-fall incident occurred in the same general
area about an hour and twenty minutes before Ms. Katz fell.
Among other things, Ms. Katz filed with her response an event
log maintained by Defendants. The event log reflected
incidents that were reported at the arena, such as wet
spills, their location, and the date and time someone was
dispatched to address the incident.
19, 2016, the trial court issued a memorandum, which focused
only on the issue of whether Defendants had actual or
constructive notice of the spill on the floor that caused Ms.
Katz's injuries. Noting that Ms. Katz "ha[d] not
produced proof as to when and how the liquid substance
appeared, " "how long it had been there before she
fell, " or "that the [D]efendants actually had been
alerted to the existence of the condition, " the trial
court concluded Ms. Katz failed to prove the essential
element of notice. On August 5, 2016, the trial court entered
an order granting Defendants' motion for summary judgment
and incorporating by reference its memorandum.
Standard of Review
judgment may be granted only "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Tenn. R. Civ. P. 56.04. The party moving for
summary judgment has "the burden of persuading the court
that no genuine and material factual issues exist and that it
is, therefore, entitled to judgment as a matter of law."
Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If
the moving party satisfies its burden, "the nonmoving