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Newell v. First State Bank, Inc.

Court of Appeals of Tennessee, Jackson

December 7, 2017

TINA LYNN DAVIS NEWELL
v.
FIRST STATE BANK, INC., ET AL.

          Session November 15, 2017

         Appeal from the Circuit Court for Tipton County No. 7212 Joe H. Walker, III, Judge

         A customer of a tanning salon injured herself upon exiting the salon when she fell while stepping off the curb onto a snow and ice-covered portion of the parking lot where she had parked her car. The customer brought suit against the owners of the tanning salon and of the shopping center, as well as a grounds keeping service, alleging that the co-defendants negligently failed to clear the ice and snow from the parking lot or warn her of the potential danger. The owners of the tanning salon filed a motion for summary judgment. Finding that the tanning salon owed no duty to the customer, the trial judge granted summary judgment. The customer appealed. We affirm.

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

          Steven Wilson and Jack McNeil, Memphis, Tennessee, for the appellant, Tina Lynn Davis Newell.

          Cameron M. Watson and Christopher M. Myatt, Memphis, Tennessee, for the appellees, Stephen M. McCann and Sara B. McCann.

          Arnold B. Goldin, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Joe G. Riley, Sp. J ., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         BACKGROUND AND PROCEDURAL HISTORY

         On January 9, 2015, Tina Lynn Davis Newell ("Appellant") filed a complaint against co-defendants Sara and Stephen McCann (d/b/a Elite Beach Tanning Company) ("Appellant, " or "Elite"), First State Bank, Inc. ("Landlord"), and Aardvark Sweeping Services, LLC, to recover damages for personal injuries she sustained in a fall in the parking lot of a shopping center, a few days after a severe winter ice-and-snow storm had befallen the area surrounding Atoka, Tennessee. Just prior to her fall, [1] Ms. Newell had attended a tanning session at Elite, a tanning salon in the Kimbrough Corners shopping center.[2] According to Ms. Newell's complaint, she slipped in the parking lot upon stepping off the curb onto ice, concealed by partially-frozen precipitation ("slush"), while returning to her car.

         On September 19, 2016, after taking discovery, Elite filed a motion for summary judgment alleging that Ms. Newell had failed to establish the duty element of her negligence claim, and asserting the affirmative defense of comparative fault. [3] In support of its motion, Elite offered, inter alia, its lease agreement with Landlord and Ms. Newell's deposition. Elite argued that the lease agreement provided that Landlord was contractually obligated to maintain the parking area. Moreover, Elite argued, Ms. Newell's own testimony indicated that she appreciated that there was slush surrounding her car that could be slippery, and she failed to use proper caution.

         On March 20, 2017, the trial court entered an order granting Elite's motion for summary judgment. The trial court concluded that Elite owed no duty to Ms. Newell because the parking spaces were not under Elite's control, and that the slush was not an unreasonably dangerous condition sufficient to trigger a duty to warn or make safe because it was an open and obvious condition. Ms. Newell filed a "Motion for Interlocutory Appeal, " which Appellees opposed and which the trial court denied. However, the parties requested that the trial court certify its order granting summary judgment, pursuant to Tennessee Rule of Civil Procedure 54.02, and make it a final judgment. The trial court then amended its order of March 20, 2017, and granted summary judgment and entered it as a final judgment as to Elite. Ms. Newell timely appealed.

         ISSUES ...


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