Where a premises liability plaintiff admitted that she had no evidence regarding how a hole was created, how long it had existed, or that any other person had fallen into it, summary judgment for defendant was affirmed.
In Halterman-Scott v. Tennessee Society of Certified Public Accountants, No. M2024-00373-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2024), plaintiff was catering an event for defendant. While walking, plaintiff left the sidewalk and walked on the grass. She fell in a hole in the grass and was injured, and thereafter filed this premises liability suit.
Defendant moved for summary judgment, arguing that plaintiff could not show that defendant caused the allegedly dangerous condition or had notice of it. In response to defendant’s statement of undisputed material facts, plaintiff admitted the following:
- Plaintiff has no evidence that Defendant was ever put on notice regarding the presence of the hole.
- Plaintiff has no evidence regarding the hole’s origin or what caused it.
- Plaintiff has no evidence revealing how long the hole was present in the ground at the time of her accident.
- Plaintiff has no evidence that anyone else walked into the hole before she did.
In addition, plaintiff admitted that she “went by the area before that day” and did not see the hole, but she added that “she was not looking in the grass” and was pushing carts.
In plaintiff’s response brief filed with the trial court, she did not assert that defendant had notice. Instead, she argued that notice was not the issue, but “rather the lack of due diligence to discover, maintain, and correct the dangerous condition.”
The trial court granted summary judgment to defendant. The trial court ruled that, based on plaintiff’s admissions and her failure to produce additional evidence, plaintiff failed to prove notice, an essential element of a premises liability claim. The Court of Appeals affirmed this ruling, finding that plaintiff was “bound by her admissions and that her admissions preclude a finding that [defendant] had constructive notice.”
The Court began its analysis by explaining that a premises liability plaintiff must show the elements of negligence and that the defendant either created the dangerous condition or had actual or constructive notice. Plaintiff had conceded that there was no proof of actual notice, so in order for plaintiff’s claim to survive summary judgment, she had to have shown constructive notice. Constructive notice can be shown through either the passage of time theory or the common occurrence theory. “As a general rule, constructive knowledge cannot be established without some showing of the length of time the dangerous condition had existed.” (internal citation omitted). Looking to plaintiff’s admissions, the Court wrote:
Here, [plaintiff] explicitly conceded any sort of factual basis that could have supported the conclusion that TSCPA had constructive notice — she admitted that she had no evidence regarding the hole’s origin, no evidence regarding how long it had been present, and no evidence that any other person had stepped into it. She also failed to present facts leading to the conclusion that TSCPA should have been alerted to the existence of the hole or been aware of its existence through some other means. Accordingly, given her admissions and failure to present any countervailing facts, the trial court was correct that she admitted that she could not establish constructive notice.
Plaintiff attempted to show notice by arguing a duty to inspect, but the Court wrote that “a reasonable inspection policy has no effect without proof of the length of time the defect existed.” (internal citation omitted). Plaintiff also argued that her expert report should have been considered. The report, however, was intended to show duty, not the length of time the hole existed. The Court wrote that it “fail[ed] to engage with the requirement under Tennessee law that a plaintiff must demonstrate that the property owner either caused the condition or had actual or constructive notice of it,” so consideration of the report would not have changed the outcome.
On appeal, plaintiff argued for the first time that the length of time the hole existed could be inferred from the height of the grass. Plaintiff argued that the trial court could have found this inference from a photograph attached to her brief. The Court ruled, however, that the trial court did not err by refusing to dig through the evidence and instead relying on plaintiff’s admissions.
Because the trial court did not err in relying on plaintiff’s admissions, and because the admissions precluded a finding of constructive notice, summary judgment was affirmed.
This opinion emphasizes the importance of responding carefully to statements of undisputed material facts, as well as being certain to address all necessary elements in a summary judgment response brief.
This opinion was released 1.5 months after oral arguments in this case.