Session November 15, 2017
from the Circuit Court for Tipton County No. 7212 Joe H.
Walker, III, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
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.
B. Goldin, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S., and Joe G. Riley, Sp. J .,
B. GOLDIN, JUDGE.
AND PROCEDURAL HISTORY
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,
Newell had attended a tanning session at Elite, a tanning
salon in the Kimbrough Corners shopping center. 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
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.
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.
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.