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Lack v. Saint Thomas Rutherford Hospital

Court of Appeals of Tennessee, Nashville

July 3, 2019

CYNTHIA P. LACK
v.
SAINT THOMAS RUTHERFORD HOSPITAL

          Session April 2, 2019

          Appeal from the Circuit Court for Rutherford County No. 70967 Robert E. Lee Davies, Senior Judge

         This appeal involves a visitor at a hospital who was injured when she slipped and fell in an icy parking lot. The visitor filed a claim against the hospital asserting that the hospital was negligent in failing to remedy the dangerous condition created by accumulated ice because the hospital did not take steps to prevent melted snow and ice from refreezing prior to the incident. The hospital filed a motion for summary judgment and, after determining that the hospital did not have a duty to prevent melted snow and ice from refreezing, the trial court granted the hospital's motion. We affirm in part and reverse in part.

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

          R. Douglas Hanson and Natalie Rowan Sharp, Nashville, Tennessee, for the appellant, Cynthia P. Lack.

          Brian Holmes and Eileen Mary Evans, Nashville, Tennessee, for the appellee, Saint Thomas Rutherford Hospital.

          Andy D. Bennett, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and Frank G. Clement, Jr., P.J., M.S., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         On Thursday, March 5, 2015, Middle Tennessee experienced a winter storm that left several inches of snow and ice in its wake. Due to this storm, the parking lots at Saint Thomas Rutherford Hospital ("STR" or "the Hospital") were covered with snow and ice by late Thursday morning. Records from the National Oceanic and Atmospheric Administration ("NOAA") show that, as the storm moved through the area on Thursday, the temperature rose above 26 degrees Fahrenheit. Freezing temperatures continued through the early morning hours of Friday, March 6, 2015, with the temperature reaching a low of 8 degrees at 5:00 a.m. Friday was a clear day with sunshine, and the temperature rose throughout the day, reaching a high of 37 degrees.

         Cynthia P. Lack arrived at STR around 11:00 a.m. on March 6 for the birth of her first grandchild. She parked in the center of the patient parking lot near the emergency room entrance. Upon her arrival, Ms. Lack observed that, although there was no snow or ice on the parking lot, it appeared wet. Ms. Lack remained in the hospital for approximately 12 hours. Between 6:00 p.m. and 7:00 p.m., the temperature once again dropped below freezing and, when Ms. Lack began walking back to her vehicle at 11:15 p.m., the temperature was approximately 25 degrees. As Ms. Lack walked across the patient parking lot back to her car, she walked between parked vehicles and slipped on a patch of ice and fell, fracturing her patella.

         On February 29, 2016, Ms. Lack filed a complaint against STR in the Circuit Court for Rutherford County. She alleged that the patient parking lot "was in a dangerous condition as it had ice and/or snow on parts of it" and that STR was negligent because it failed to remedy the dangerous condition "by either removing the ice and snow or adequately salting the parking lot." STR filed an answer denying that it was negligent. After deposing Ms. Lack and exchanging written discovery, STR filed a motion for summary judgment asserting that Ms. Lack was "unable to establish the essential elements of duty or breach [of duty] for her premises liability claim."

         The Hospital supported its motion for summary judgment with a statement of undisputed facts that was based on the affidavit of David Wheeler, the director of safety and emergency management at STR in March 2015. According to Mr. Wheeler, STR had a written snow and ice removal plan that he helped develop prior to March 2015. The plan prioritized the performance of snow removal efforts as follows: (1) the emergency room entrance and parking lot, (2) the employee parking lot, and (3) the doctor parking lot. Mr. Wheeler stated that Naturescape, Inc. ("Naturescape") was hired to implement STR's snow and ice removal plan in 2015.

         On August 24, 2017, Ms. Lack filed a response to STR's motion for summary judgment. She asserted that STR owed her a duty of reasonable care and submitted that the only issue was whether STR breached its duty. Because she had not yet had an opportunity to depose STR's witnesses, Ms. Lack requested additional time to conduct discovery on the issue of whether STR breached its duty. The trial court entered an order on October 6, 2017, reserving judgment on STR's motion for summary judgment and granting Ms. Lack additional time to take the depositions of Mr. Wheeler, Kenneth Warren, and Tonya Pedigo-Price. The court's order permitted Ms. Lack to file a renewed response to STR's motion for summary judgment within 45 days of the last deposition.

         Ms. Lack filed a renewed response to STR's motion for summary judgment on December 8, 2017. She asserted that summary judgment was inappropriate because a genuine issue of material fact existed regarding whether STR breached its duty by "failing to remove the snow and ice in a reasonable manner and/or by failing to warn the Plaintiff of latent conditions." Ms. Lack attached to her renewed response excerpts from the deposition of Mr. Wheeler. In his deposition, Mr. Wheeler admitted that he had no personal knowledge of any snow and ice removal efforts performed at STR on March 5 and 6, 2015. For instance, he did not attempt to remove any snow and ice himself or inspect Naturescape's snow and ice removal efforts on those days. Moreover, he had no knowledge of any specific snow and ice removal efforts performed by Naturescape or of any specific times such efforts were performed on the days in question. Mr. Wheeler stated that he assumed Naturescape performed snow and ice removal on March 5 and 6, 2015, because he saw invoices from Naturescape for snow and ice removal performed on those dates.

         Ms. Lack also attached to her renewed response excerpts from the deposition of Kenneth Warren, the director of facility operations at STR in March 2015. Mr. Warren's testimony was based on a combination of his personal knowledge of events that occurred on March 5 and 6, 2015, and of what he knew to be the routine practices of STR and Naturescape. He stated that, although Naturescape would spread de-icer and perform most of the snow plowing during a snow and ice event, STR performed some of its own snow and ice removal. For example, under the direction of Mr. Warren, STR employees occasionally used a Kawasaki Mule with a snow blade on the front and an electric ice melt spreader on the back to remove snow and ice.

         Mr. Warren stated that, prior to March 2015, he saw STR's written snow and ice removal plan and that, in accordance with that plan, he directed Naturescape to pretreat the STR premises with de-icer any time the weather forecast showed snow and ice. He testified that the plan did not specify using a particular de-icing agent on the STR premises, but it prohibited the use of salt. STR did not purchase its own de-icing agent in 2015. Rather, Naturescape supplied the de-icing agent. ...


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