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Summary judgment reversed where tombstone fell and injured plaintiff.

Where plaintiff responded to a summary judgment motion by “offering proof of the cause of her injuries” from which a “rational trier of fact” could find in her favor, summary judgment should not have been granted. In Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. April 29, 2021), plaintiff was injured when she was visiting her brother’s grave and the tombstone fell onto her hand. Plaintiff filed this negligence suit against defendant, alleging in the complaint that defendant was “negligent in the construction, placement, and maintenance of the gravestone.”

Defendant moved for summary judgment, and the trial court granted the motion. The trial court ruled that there was “not sufficient proof that [defendant] used the wrong adhesive or otherwise improperly installed the gravestone,” and that there were other reasonably probable causes, including that the gravestone could have been run over by lawnmowers or other vehicles. On appeal, summary judgment was partially reversed.

The Court began by noting that a party opposing summary judgment must show “the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party.” (internal citation omitted). Here, plaintiff’s evidence opposing summary judgment focused on the adhesive that defendant allegedly used when attaching the headstone to its base. During the deposition of one of defendant’s employees, he testified that defendant had been using the same compound to install headstones for ten years, but that he did not know exactly what that compound was. Plaintiff then requested that defendant produce “any and all invoices for any setting compounds purchased by [defendant] from the year 2010 until the present date,” and defendant responded by producing a single receipt for “putty.” The Court found that, based on these facts, “there [was] clearly evidence here to support [plaintiff’s] assertion at summary judgment that putty was used with respect to the installation of the headstone at issue.”

Plaintiff also submitted an affidavit from an expert who had been in the monument business for fifty years. This expert testified that putty was not a proper compound to use for headstone installation, as “it will not hold the monument to the base for a very long time and it is foreseeable that the monument will fall.” Although the trial court ruled for defendant, it did consider the affidavit and supplemental affidavit from the expert, which the Court of Appeals ruled was not error. Defendant first argued against the expert’s “competency to provide testimony in this case,” but the Court noted that his long and extensive experience in the monument business qualified him as an expert here. Defendant also argued that the supplemental affidavit, which was submitted three days before the hearing, should not have been considered. The Court pointed out, however, that while the Tennessee Rules of Civil Procedure require affidavits to be filed five days before a summary judgment hearing, the trial court had discretion to waive the requirements of the Rules, especially considering that the supplemental affidavit “essentially spoke on the same matters” as the original affidavit and was only submitted to cure deficiencies in the first affidavit.

Based on the evidence submitted by plaintiff, the Court of Appeals ruled that summary judgment regarding the negligent installation of the headstone should not have been granted. The Court explained:

[T]he trial court placed particular emphasis in its ruling that there was no certainty as to what happened in this case. It then proceeded to speculate as to various potential causes of [plaintiff’s] injuries, expressing concern that the evidence had not eliminated the possibility of such causes. Perhaps there is in fact some other cause of what is alleged to have occurred, and perhaps the Defendant will be able to establish this at trial or otherwise discredit the proof that [plaintiff] will offer. Respectfully, however, the court’s independent speculation about other potential causes does not in any way warrant a grant of summary judgment in the Defendant’s favor. The Defendant moved for summary judgment, and Ms. Davis appropriately responded by offering proof of the cause of her injuries, proof that implicates the Defendant. Because [plaintiff] has demonstrated the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party, summary judgment was not appropriate.

(internal citations omitted).

Notably, the Court stated that it was not reversing summary judgment in its entirety. The reversal went to claims of negligent installation of the headstone, but to the extent plaintiff was claiming “negligence against the defendant independent of its installation of the subject headstone, the trial court’s dismissal of such claims [was] undisturbed.”

The Court of Appeals was right to reverse summary judgment here. Plaintiff did a great job setting up the facts needed to show that a trier of fact could find in her favor, using deposition testimony, discovery responses, and an expert affidavit to support her case.

NOTE: This opinion was released two weeks after oral arguments in this case.

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