Day on Torts
Where the trial court granted summary judgment to defendant store in a premises liability case based on the finding that there was no dangerous condition, but the plaintiff’s appellate brief only addressed the issue of notice, summary judgment for defendant was affirmed.
In Williams v. Dollar General Corporations, LLC, No. E2023-00702-COA-R3-CV (Tenn. Ct. App. Mar. 6, 2024) (memorandum opinion), plaintiff entered a Dollar General store operated by defendant while it was lightly raining. Plaintiff was wearing slides, and the store had a mat at the front and a wet floor sign. Plaintiff’s shoe got caught on the mat and plaintiff fell, injuring herself.
Plaintiff filed this premises liability claim against defendant, and defendant moved for summary judgment on several grounds. In support of its motion for summary judgment, defendant submitted a seven-minute video containing excerpts of security camera footage, as well as a longer, unedited version of the footage. At the motion hearing, the trial court stated that it was unable to view the longer version of the video due to technical issues, and it offered plaintiff the opportunity to play the longer version, which plaintiff declined.
The trial court ultimately granted summary judgment to defendant, ruling that there was no evidence that the mat in question was improperly maintained, that it was waterlogged, that it needed to be replaced, or that it was a dangerous condition. On appeal, this ruling was affirmed.
On appeal, plaintiff cited one issue for review: “Whether the trial court erred in not finding that there existed a genuine issue of material fact as to whether [defendant] had actual or constructive notice of water on its premises before [plaintiff] slipped.” Despite framing the issue in this way, plaintiff’s brief asserted that the trial court erred by failing to watch and consider the full-length security video. Plaintiff argued that the “full video should have been the only video evidence relied upon under the ‘best evidence rule.’” The Court of Appeals, however, found that this argument was waived, as plaintiff failed to make such an argument at the trial court level. Further, the trial court had offered plaintiff the opportunity to have the full video played, which plaintiff declined. The Court noted that, pursuant to Rule 36(a) of the Tennessee Rules of Appellate Procedure, it “generally only correct[s] prejudicial errors that were not the result of a parties’ own mistake,” and that this rule “often comes into play when the trial court offers some curative action that the aggrieved party declines.” (internal citations omitted). Because plaintiff failed to take advantage of the corrective measures offered by the trial court at the motion hearing, she was not entitled to appellate relief on this issue.
The remainder of plaintiff’s brief argued that there was a genuine issue of material fact regarding whether defendant had notice of the allegedly dangerous condition created by the mat. The trial court, however, had not granted summary judgment on the issue of notice, but had instead found that there was no evidence that the mat created a dangerous condition. Because plaintiff did not address the actual basis of the summary judgment decision, the trial court’s ruling was affirmed.
This opinion was released four months after oral arguments in this case.