Session July 10, 2019
from the Circuit Court for Davidson County No. 16C190 Amanda
J. McClendon, Judge
plaintiff filed a premises liability action against a
premises owner alleging that the premises owner was liable
for injuries the plaintiff sustained after falling down a
staircase located on the premises owner's property. The
trial court denied the premises owner's motion for
summary judgment but granted permission to pursue an
interlocutory appeal. Because the plaintiff failed to present
sufficient evidence of an essential element of his claim, we
reverse the decision of the trial court.
R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit
Court Reversed and Remanded
Benjamin Cole Aaron and William Taylor Ramsey, Nashville,
Tennessee, for the appellants, Dale Morris, Kyle Quigley, and
MHM Holdings, LLC.
M. McCaffrey, Goodlettsville, Tennessee, for the appellant,
Scott Cartee and Patrick Brian Newsom, Nashville, Tennessee,
for the appellee, Alan Cartee.
D. Bennett, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and J. Steven Stafford,
P.J., W.S., joined.
D. BENNETT, JUDGE
and Procedural Background
point prior to January 2014, Alan Cartee began working for a
group of entertainment management companies owned by Dale
Morris. Mr. Cartee's job duties included
operating a recording studio and delivering studio recording
fee checks to Jamie Summar at 818 19th Avenue South,
Nashville, Tennessee ("the building"). On January
23, 2015, Mr. Cartee went to the building to deliver
recording fee checks to Ms. Summar and fell down a wooden
staircase located inside the building, rendering him
unconscious for two days.
building was a two-story former residence owned by Mr. Morris
that had been converted into office space. Kyle Quigley, Ms.
Summar, and Sue Leonard worked for the various entertainment
management companies owned by Mr. Morris, and their offices
were located on the second floor of the building at the time
of the incident. Mr. Morris also had an office on the
second floor of the building. The staircase Mr. Cartee fell
down was the most common way to access the second
Cartee initiated this lawsuit against Mr. Morris, Morris
Higham Management, LLC,  MHM Holdings, LLC, and Mr. Quigley
("Defendants") on January 25, 2016. He alleged in
his complaint that, as he was attempting to exit the second
floor of the building onto the staircase, "he was
required to attempt to step over a dog gate that had been
installed at the very top of the staircase" by Mr.
Quigley. Mr. Cartee further alleged that the dog gate
constituted a dangerous condition and that he was injured
because Defendants failed to either remove or warn of the
dangerous condition. After Defendants filed an answer on
March 16, 2016, the parties engaged in discovery by taking
depositions of the following witnesses: Mr. Cartee, Mr.
Quigley, Ms. Summar, Ms. Leonard, and Mr. Morris.
Cartee testified that, as a result of the accident, he could
not remember many of the details surrounding his fall. He
could not recall how often he delivered checks to the second
floor of the building prior to January 23, 2015. He admitted,
however, that he regularly delivered checks to the second
floor of the building and that "sometimes the checks
were sporadic; sometimes more than others." Initially,
Mr. Cartee testified that he thought he remembered seeing the
dog gate in the year prior to the accident, but he later
testified that he did not "know for sure" and could
not remember. He recalled seeing the dog gate at the top of
the staircase when he climbed to the second floor on the day
of the incident. Mr. Cartee had no memory of how he traveled
past the dog gate once reaching the top of the stairs on the
day in question, but he acknowledged that the gate did not
cause him to fall as he exited the staircase onto the second
floor. He stated that, although he remembered delivering the
checks to Ms. Summar and then speaking with her and Ms.
Leonard, he had no personal knowledge of how he attempted to
leave the second floor. Despite having no memory of the
accident, Mr. Cartee believed that he fell down the stairs
after tripping on the dog gate. He testified that he based
this belief on what he "was told." When asked who
told him he fell because he tripped over the dog gate, he
responded that he did not know but speculated that either Ms.
Summar or Ms. Leonard told him because they were the only
people who could have witnessed the accident.
the dog gate, Mr. Quigley testified that he began placing it
at the top of the staircase in January 2014 when he started
bringing his dog to the office. Mr. Morris described the gate
as weighing "less than half a pound" and standing
"[a] foot and a half" in height. Mr. Quigley, Ms.
Summar, Ms. Leonard, and Mr. Morris all stated that the gate
was never anchored to the wall. Rather, it was simply propped
up at the entrance to the staircase so it could be easily
moved. Those with offices on the second floor would typically
move the gate or step over it when accessing the staircase.
According to all of the witnesses, they were not aware of
anyone suffering injury from or complaining about the
staircase or dog gate prior to the incident. Finally,
contrary to Mr. Cartee's testimony that Ms. Summar or Ms.
Leonard probably told him that he tripped over the dog gate,
both women testified that they did not witness the accident.
They heard the gate tumble down the stairs at the time Mr.
Cartee fell, and Ms. Leonard saw that the gate was at the
bottom of the stairs after the fall.
October 13, 2017, Defendants filed a motion for summary
judgment supported by all of the deposition testimony
discussed above. Defendants argued that summary judgment was
appropriate because, among other things, Mr. Cartee was
unable to present prima facie proof of the cause in fact
element of his claim. The trial court denied the motion in an
order entered on March 21, 2018, concluding that "[i]t
is reasonably foreseeable that someone would trip over the
unsecure dog gate and fall down the stairs." The trial
court further concluded that, because Ms. Summar and Ms.
Leonard testified that they heard the dog gate tumble down
the stairs at the time of the accident and that Ms. Leonard
saw the gate at the bottom of the stairs afterwards,
"[t]he reasonable inferences to which [Mr. Cartee] is
entitled at the summary judgment stage preclude summary
judgment in this case." Specifically, the court found
that, based on the testimony of Ms. Summar and Ms. Leonard,
"[a] reasonable juror could find that an unsecured dog
gate at the top of a flight of stairs could have caused [Mr.
Cartee's] fall." The trial court granted Defendants
permission to seek an interlocutory appeal to this Court and,
on January 17, 2019, we granted Defendants' application
for an interlocutory appeal.
review a trial court's summary judgment determination de
novo, with no presumption of correctness. Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,
250 (Tenn. 2015). Therefore, "we make a fresh
determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied."
Id. We "must view the evidence in the light
most favorable to the nonmoving party and must draw all
reasonable inferences in that party's favor."
Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002);
see also Acute Care Holdings, LLC v. Houston Cnty.,
No. M2018-01534-COA-R3-CV, 2019 WL 2337434, at *4 (Tenn. Ct.
App. June 3, 2019).
judgment is appropriate "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. When a party moves for summary judgment but
does not have the burden of proof at trial, the moving party
must either submit evidence "affirmatively negating an
essential element of the nonmoving party's claim" or
"demonstrating that the nonmoving party's evidence
at the summary judgment stage is insufficient to
establish the nonmoving party's claim or defense."
Rye, 477 S.W.3d at 264. Once the moving party has
satisfied this requirement, the nonmoving party
"'may not rest upon the mere allegations or denials
of [its] pleading.'" Id. at 265 (quoting
Tenn. R. Civ. P. 56.06). Rather, the nonmoving party must
respond and produce affidavits, depositions, responses to
interrogatories, or other discovery that "set forth
specific facts showing that there is a genuine issue for
trial." Tenn. R. Civ. P. 56.06; see also Rye,
477 S.W.3d at 265. If the nonmoving party fails to respond in
this way, "summary judgment, if appropriate, shall be
entered against the [nonmoving] party." Tenn. R. Civ. P.
56.06. If the moving party fails to show he or she is
entitled to summary judgment, however, "'the
non-movant's burden to produce either supporting
affidavits or discovery materials is not triggered and the
motion for summary judgment fails.'" Martin v.
Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008)
(quoting McCarley v. W. Quality Food Serv., 960
S.W.2d 585, 588 (Tenn. 1998)).
appeal, Defendants argue that the trial court erred in
denying their motion for summary judgment because Mr. Cartee
is unable to prove all of the essential elements of his
premises liability claim. Premises owners have a duty to
exercise reasonable care to protect persons legally on their
property from unreasonable risks of harm. Easley v.
Baker, No. M2003-02752-COA-R3-CV, 2005 WL 697525, at
*6-7 (Tenn. Ct. App. Mar. 24, 2005) (citing Basily v.
Rain, Inc., 29 S.W.3d 879, 883-84 (Tenn. Ct. App.
2000)); see also Rice v. Sabir, 979 S.W.2d 305, 308
(Tenn. 1998). Included within this duty is the duty to
"maintain the premises in a reasonably safe condition
either by removing or repairing potentially dangerous
conditions or by helping persons avoid injury by warning them
of conditions that cannot, as a practical matter, be removed
or repaired." Bowman v. State, 206 S.W.3d 467,
473 (Tenn. Ct. App. 2006); see also Eaton v. McLain,
891 S.W.2d 587, 593-94 (Tenn. 1994) (holding that premises
owners owed a duty "to maintain the premises in ...