Day on Torts
In Rushing v. AMISUB Inc., No. W2016-01897-COA-R3-CV (Tenn. Ct. App. Feb. 8, 2017), a premises liability claim once again failed when the plaintiff had no evidence regarding how long the dangerous condition existed or who had created it.
Plaintiff was walking into defendant hospital’s emergency room, and as she approached the registration desk she allegedly “slipped and fell in a clear liquid on the floor.” Plaintiff filed this premises liability suit against the hospital and at some point was represented by counsel, though by the time of the trial court’s grant of summary judgment she was proceeding pro se. In its answer, the hospital alleged comparative fault against its housekeeping management service, which plaintiff then added as a defendant.
Defendants moved for summary judgment on the basis that plaintiff could not prove notice of the alleged spill. In her response, plaintiff stated that two hospital employees “admitted that the spill was sprite. They said that they had contacted the housekeeping company…to remove the spill. To their knowledge they thought the employees had gotten it up but apparently not.” At the summary judgment hearing, the trial court determined that these two employees had not been deposed and accordingly gave plaintiff sixty additional days for discovery. When the second hearing occurred, plaintiff had still not deposed the two employees who she claimed admitted that they knew the liquid was on the floor. Finding that “plaintiff’s evidence is insufficient to establish an essential element of her claim, which is notice of the allegedly dangerous condition,” the trial court granted defendants’ motions for summary judgment. The Court of Appeals affirmed.
In a premises liability claim, “in addition to the elements of negligence, the plaintiff must establish that (1) the condition was caused or created by the owner, operator, or his agent, or (2) if the condition was created by someone [else], that the owner or operator had actual or constructive notice that the condition existed prior to the accident.” (internal citation omitted). If the claim is based on constructive notice, “there must be material evidence form which the trier of fact could conclude the condition existed for sufficient time and under such circumstances that one exercising reasonable care and diligence would have discovered the danger.” (internal citation and quotation omitted).
Here, plaintiff alleged that two employees “ran out into the lobby saying that the spill was sprite and they were sorry.” Plaintiff, however, failed to depose these alleged employees or produce any evidence regarding what the hospital or housekeeping company knew about the spill, how long the spill had been there, or what had initially caused the spill. Plaintiff’s only “evidence” was her unsupported allegation. “To survive summary judgment, the nonmoving party may not rest upon the mere allegations or denials of its pleading, but must respond by affidavits or as otherwise provided in Tennessee Rule of Civil Procedure 56…set forth specific facts…showing that there is a genuine issue for trial.” (internal citation and quotation omitted). The only hospital employee deposed by plaintiff specifically testified that she did not see the liquid on the floor and had no idea how long it had been there or how it had gotten there. Because plaintiff failed to produce any evidence from which it could be found that defendants had notice of the liquid, summary judgment was affirmed.
This case is a good reminder that a bare assertion will not withstand a summary judgment motion. When defending against summary judgment, plaintiffs must pursue discovery and present evidence supporting their claims.