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Katz v. The Sports Authority Of The Metropolitan Government Of Nashville And Davidson County, Tn

Court of Appeals of Tennessee, Nashville

August 29, 2017

WANDA KATZ
v.
THE SPORTS AUTHORITY OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TN, ET AL.

          Session April 12, 2017

         Appeal from the Circuit Court for Davidson County No. 13C3528 Hamilton V. Gayden, Jr., Judge

         Plaintiff 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 judgment.

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

          W. 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.

          David L. Cooper, Nashville, Tennessee, for the appellant, Wanda Katz.

          J. Michael Clemons, Nashville, Tennessee, for the appellees, Sports Authority of the Metropolitan Government of Nashville & Davidson County, TN, and Powers Management, LLC.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         On 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.

         On 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.

         After some discovery, Defendants filed a motion for summary judgment. In their motion, Defendants argued that: (1) a dangerous condition did not exist;[1] (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.

         In 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.

         On July 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.

         II.

         A. Standard of Review

         Summary 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 ...


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