Negligence summary judgment affirmed where plaintiff had no evidence of breach of duty.

Where plaintiff had no evidence that defendant took any action that contributed to him being knocked off a ladder while nailing a board to a window, summary judgment for defendant was affirmed.

In Malone v. Viele, No. E2021-00637-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2021), plaintiff and defendant were friends who both had construction work experience. Defendant needed help nailing boards across a window on his cabin that was under construction, and plaintiff agreed to assist him. Plaintiff and defendant were both on ladders, and one would hold the lower end of the board while the other nailed the upper end of the board to the cabin. Plaintiff had placed his own ladder and was using his own hammer during the project. Plaintiff was nailing one board while the other end was being held at a lower diagonal by defendant, when after placing a few nails in the board, plaintiff hit the board again with his hammer and the board bounced back and knocked him off his ladder, causing serious injuries.

Plaintiff filed this personal injury suit, asserting that defendant’s negligence caused his injuries. During his deposition, plaintiff was asked what defendant was doing when the injury occurred, and plaintiff stated that defendant was “holding the lower end” of the board. When asked what defendant did “that caused the two-by-four to come out,” plaintiff responded that he did not know. During his own deposition, defendant stated that he was “just holding the board” at the time of the accident.

Defendant filed a motion for summary judgment, arguing that plaintiff could not prove that defendant breached any duty in this case. Plaintiff responded by filing an affidavit which asserted that defendant “fail[ed] to stabilize his end of the board” and that this failure is what caused the board to hit plaintiff. After a hearing, the trial court granted summary judgment to defendant, ruling that plaintiff could not show that anything defendant “did or failed to do” caused the accident. This ruling was affirmed on appeal.

To successfully bring a negligence claim, a plaintiff must prove each of the five elements of negligence, including that defendant breached a duty of care. (internal citation omitted). In this case, defendant “conceded that he assumed a duty to hold his end of the board at the bottom corner,” but he asserted that plaintiff could not show a breach of that duty. The Court of Appeals agreed, explaining:

Plaintiff cites no evidence in the record indicating that it was [defendant’s] end of the board that moved or became unsteady. …[T]here is no factual assertion that [defendant] walked away or otherwise ceased to hold the board. Plaintiff cannot set forth any specific fact as to what [defendant] was doing when the board bounced back after Plaintiff hit it with a hammer. This is because Plaintiff was not looking at [defendant]… Plaintiff testified that the top end of the board was ‘holding to the wall’ once he nailed it in. He hit it again with the hammer and it bounced back, and knocked him off the ladder. In other words, the undisputed facts establish that the accident occurred not when [defendant’s] end of the board moved but when Plaintiff’s end of the board bounced back and hit his head.

Because defendant had affirmatively negated an essential element of plaintiff’s claim, the Court of Appeals affirmed summary judgment.

Plaintiff also asserted that the trial court’s final order did “not reflect the trial court’s independent judgment” because the trial court used an order drafted by defense counsel. The Court of Appeals rejected this argument, stating that the trial court properly stated the grounds upon which the motion was being granted before asking defense counsel to draft the order pursuant to Tennessee Rule of Civil Procedure 56.04, that the trial court corrected a minor error in the proposed order, and that the order drafted by defense counsel and entered by the trial court accurately reflected the trial court’s decision.

This case reminds us that an injury alone is not enough to prove negligence. Here, plaintiff had no evidence that defendant did anything to cause the board to plaintiff or in any way breached a duty owed to plaintiff, so summary judgment was affirmed.

NOTE:  This decision was released ten weeks after oral argument.

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