Day on Torts
A premises liability plaintiff who had no evidence that defendant construction company controlled the area where she fell did not survive summary judgment.
In Brooks v. Whaley Construction, LLC, No. E2023-00711-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024), plaintiff walked in a grass median after having car trouble. While walking, he tripped on a signpost that had been cut down to one foot, injuring himself. Defendant construction company was working on a project in the area and had a portion of the median blocked off with a silt fence. The signpost was outside the silt fence.
Plaintiff filed this premises liability suit, and defendant filed a motion for summary judgment. Defendant presented a declaration from its superintendent stating that the only area at the site that was within defendant’s control was the area within the silt fence, and that defendant’s project did not involve creation or removal of the signpost. Plaintiff responded to the summary judgment by filing his own declaration stating that there appeared to be construction in the area outside the silt fence. He also relied on certain documents, but those documents had not been made part of the record. At oral argument, plaintiff conceded that the relevant documents were not part of the record, and plaintiff did not have them on the day of the hearing. The trial court granted defendant summary judgment, and the Court of Appeals affirmed.
On appeal, the Court first affirmed the trial court’s decision to not consider evidence that was not made part of the record. The Court noted that Rule 56 requires a party to point to admissible evidence when opposing summary judgment, and plaintiff failed to do that.
The Court also agreed that plaintiff’s declaration was not enough to defeat summary judgment here. Plaintiff argued that construction can occur beyond a boundary and that it was not beyond belief that defendant knocked down or moved the sign. The Court found, though, that this argument was “theoretical and does not establish [defendant’s] custody or control over the signpost.” Plaintiff’s argument relied on a possibility, but when responding to a summary judgment motion, “the nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts.” (internal citation omitted).
Summary judgment was therefore affirmed.
This case is a reminder to attach any necessary documents to your Court filings, and to cite to more than just possibilities when opposing a summary judgment motion.
This opinion was released one month after oral arguments in this case.