Sylvia Davis v. Keith Monuments

04/29/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 14, 2021 Session
SYLVIA DAVIS v. KEITH MONUMENTS
Appeal from the Circuit Court for Hamilton County
No. 19-C-641 Ward Jeffrey Hollingsworth, Judge
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No. E2020-00792-COA-R3-CV
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Plaintiff filed suit for damages alleging that she had been injured when the headstone at
her deceased brother’s grave fell on her and broke bones in her hand. After Defendant, the
installer of the headstone, moved for summary judgment, the trial court dismissed
Plaintiff’s claims with prejudice. On appeal, we reverse that portion of the trial court’s
summary judgment order dismissing Plaintiff’s claim which is based on Defendant’s
alleged negligence in installing the headstone.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
part, Reversed in Part, and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and J. STEVEN STAFFORD, P.J., W.S., joined.
Ronald J. Berke, Chattanooga, Tennessee, for the appellant, Sylvia Davis.
Alaric A. Henry and Michael S. Jones, Chattanooga, Tennessee, for the appellee, Keith
Monuments.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff-Appellant in this matter, Sylvia Davis (“Ms. Davis”), filed a complaint
in the Hamilton County Circuit Court as a result of injuries she allegedly sustained while
visiting the grave of her deceased brother. According to the complaint, while Ms. Davis
was setting flowers at the base of her brother’s gravestone, “the headstone fell over onto
[her] hand, breaking several bones, necessitating surgery, and causing severe pain and
suffering.” The complaint charged that the named Defendant, “Keith Monuments,”1 was
1
The answer submitted in this matter, filed by Keith Monuments, LLC, noted that the Defendant
“negligent in the construction, placement, and maintenance of the gravestone.” Further,
the complaint asserted that the Defendant “either created an unsafe condition on the
property, or knew or should have known of the unsafe condition through the exercise of
reasonable diligence.”
Following the filing of the complaint, the Defendant moved for summary judgment
and asserted that it was entitled to relief based upon the following grounds:
1. Plaintiff can provide no evidence that her injury was foreseeable and that
some conduct by Keith Monuments could have prevented the injury.
2. Keith Monuments does not own the property at issue, nor did Keith
Monuments manufacture the gravestone.
3. Plaintiff can provide no evidence that Keith Monuments negligently installed
the gravestone, thus creating a dangerous condition.
4. Additionally, Plaintiff can provide no evidence that Keith Monuments had
notice of the alleged dangerous condition.
Ms. Davis opposed the summary judgment motion by contending there were genuine issues
as to the negligence of the Defendant in its attachment of the headstone to the base of the
monument. In relevant part, Ms. Davis argued that the Defendant had used the wrong
compound to attach the headstone to the base. Specifically, she pointed to discovery
materials indicating that putty had been used as the setting compound and submitted an
affidavit from Manny Rico, an installer of gravesite monuments and owner of a monument
business for thirty-four years. According to Mr. Rico, putty is not a proper compound to
use and, if used, “it will not hold the monument to the base for a very long time and it is
foreseeable that the monument will fall.”
The Defendant subsequently moved to strike Mr. Rico’s affidavit on April 21, 2020.
During the ensuing summary judgment hearing that occurred on Monday, April 27, 2020
and for which a notice of hearing was sent on Wednesday, April 22, 2020, the Defendant
reiterated its objections to the affidavit, while also voicing an objection to a supplemental
affidavit of Mr. Rico filed three calendar days before the hearing, on April 24, 2020.2 The
had been incorrectly named as “Keith Monuments” in Ms. Davis’ complaint.
2
As a technical matter, the supplemental affidavit was filed one day before the scheduled hearing
within the meaning of the rules of procedure. See Cartwright v. Tenn. Farmers Mut. Ins. Co., 453 S.W.3d
910, 914-16 (Tenn. Ct. App. 2014) (exploring interplay between Rule 56 and Rule 6 and how to determine
the timeliness of summary judgment responses). We further note, however, that pursuant to the appropriate
time computations, the supplemental affidavit was technically due before the motion to strike was ever filed
and before the notice of hearing was given. It is apparent that Ms. Davis made prompt efforts to cure
perceived deficiencies with Mr. Rico’s affidavit upon receipt of the motion to strike. This may well explain
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supplemental affidavit from Mr. Rico was ostensibly offered to address any perceived
deficiencies with his first one. Whereas the trial court did not formally enter an order
directly dealing with the Defendant’s motion to strike, this motion was implicitly denied
inasmuch as the court’s ensuing “Memorandum Opinion” granting summary judgment to
the Defendant specifically refers to the affidavit. By the same token, it appears that Mr.
Rico’s supplemental affidavit was also considered; indeed, when describing Mr. Rico’s
opinion in its summary judgment order, the trial court referred to statements made by Mr.
Rico that were only specifically set forth in the supplemental affidavit.3
As for its ultimate decision to grant the Defendant’s motion for summary judgment,
however, the trial court held in relevant part as follows:
The one certainty is that no one knows what happened. There is not sufficient
proof that Keith Monuments used the wrong adhesive or otherwise
improperly installed the gravestone. There is no proof of the condition of the
gravestone after the accident. By the time Keith Monuments went to inspect
the site, some unknown person had repaired whatever damage had occurred.
....
Although it is not pled . . . the Plaintiff’s case seems to rest on the
theory of res ipsa loquitur[.] . . . However, res ipsa loquitur does not apply in
this case.
....
Under the evidence presented in this case, it is clear that Keith
Monuments was not responsible for all reasonably probable causes. The
the trial court’s decision to reference the opinions and contents of the supplemental affidavit and not
disregard it, as will be discussed herein. We additionally observe that, although the Defendant complains
in this matter that the supplemental affidavit was untimely when adjudged in reference to the summary
judgment hearing date, the facts of this case show that the Defendant did not actually give proper notice of
its own hearing date regarding the summary judgment motion and motion to strike. See Tenn. R. Civ. P.
6.04; Tenn. R. Civ. P. 6.01; Bright v. Gue, No. E2007-00127-COA-R3-CV, 2008 WL 440457, at *6-7
(Tenn. Ct. App. Feb. 19, 2008). Indeed, as notice of the hearing was given on April 22, 2020, the service
of the notice was not five days in advance of the hearing date as calculated under the rules. Although Ms.
Davis has not complained about this notice issue, it is noteworthy that the Defendant insists upon strict
compliance with the rules of procedure on Ms. Davis’ part but does not hold itself to the same standard.
3
By way of example, the trial court noted that Mr. Rico’s opinion regarding the monument in this
case was “based on his experience,” a point that was specifically clarified in the supplemental affidavit,
wherein Mr. Rico attested that his opinions in both affidavits were based upon his fifty years of work in the
monument business. Moreover, the trial court referred to Mr. Rico’s opinion about whether something is
a “proper adhesive,” terminology that is only used in the supplemental affidavit. The trial court further
stated that it had reviewed “all of the evidence in this case.”
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gravestone could have been impacted by lawnmowers numerous times while
it was in place before the accident. Other vehicles could have run into it.
....
The evidence submitted by Ms. Davis is not sufficient to establish that
the gravestone was negligently installed by Keith Monuments.
This appeal followed.
DISCUSSION
In this appeal, we are tasked with considering whether the trial court’s grant of
summary judgment in favor of the Defendant was proper. In answering this question, we
are guided by the following standard:
A motion for summary judgment may be granted only if “the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.” Tenn. R. Civ. P. 56.04. “The moving party has the ultimate
burden of persuading the court that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter of
law.” Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008) (citation
omitted). When the moving party does not bear the burden of proof at trial,
“the moving party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving party’s claim
or (2) by demonstrating that the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the nonmoving
party’s claim or defense.” Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). Because resolving a motion
for summary judgment is a question of law, we review the trial court’s
disposition on the issue de novo without a presumption of
correctness. Martin, 271 S.W.3d at 84 (citation omitted). Indeed, we must
make a fresh determination that the requirements of Rule 56 have been
satisfied in each case. Green v. Green, 293 S.W.3d 493, 514 (Tenn. 2009)
(citations omitted). In assessing the propriety of the motion, “we are required
to review the evidence in the light most favorable to the nonmoving party
and to draw all reasonable inferences favoring the nonmoving
party.” Martin, 271 S.W.3d at 84 (citation omitted).
Bobo v. City of Jackson, 511 S.W.3d 14, 18–19 (Tenn. Ct. App. 2015).
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We further note that summary judgment proceedings are “not in any sense to be
viewed as a substitute for a trial of disputed factual issues,” Miranda v. CSC Sugar, LLC,
No. W2017-01986-COA-R3-CV, 2018 WL 3302035, at *6 (Tenn. Ct. App. July 5, 2018)
(quoting EVCO Corp. v. Ross, 528 S.W.2d 20, 25 (Tenn. 1975)), and in negligence cases,
questions regarding breach of duty and causation are ordinarily questions of fact. Rains v.
Bend of the River, 124 S.W.3d 580, 588 (Tenn. Ct. App. 2003). Moreover, as our Supreme
Court’s discussion in Rye instructs, a nonmovant opposes summary judgment by
“demonstrat[ing] the existence of specific facts in the record which could lead a rational
trier of fact to find in favor of the nonmoving party.” Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015). As explained below, because we
conclude that Ms. Davis satisfied this standard, we respectfully hold that the trial court’s
disposition of this matter by summary judgment was in error.
Whereas the Defendant argues in its appellate brief that Ms. Davis “failed to provide
any evidence linking the installation of the gravestone to [her] injuries,” this assertion is
simply not supported by the record transmitted to us on appeal. Ms. Davis marshalled
evidence that putty was used by the Defendant to attach the headstone to the monument’s
base, and she further adduced proof by an experienced monument installer that the use of
that substance would result in the headstone eventually falling.
As to the assertion that putty was used in the monument installation, the Defendant
argues that there is no evidence of such a factual proposition. This contention is a spurious
one. Evidence does exist to support Ms. Davis’ assertion that putty was used by the
Defendant. In his January 20, 2020 deposition, Charles McGhee, who was one of the
installers of the monument at issue, testified that he did not know the type of setting
compound he had used. He did state, however, that the compound he used in 2020 was the
same compound he had used for ten years, agreeing that it had always been the same.
According to Mr. McGhee, “It’s like a white bucket.” Thus, although Mr. McGhee’s
testimony clearly indicated that the Defendant had always used the same compound for
attaching headstones during the decade in which the subject headstone was installed, he
could not shed light onto the specific nature of the compound.
Subsequent discovery helped Ms. Davis fill in the gap left by Mr. McGhee’s
memory. In serving a response to Ms. Davis’ request for the production of “[a]ny and all
invoices for any setting compounds purchased by Keith Monuments from the year 2010
until the present date,” the Defendant attached a single invoice that it had located, which
reflected the purchase of “One bucket of Putty” in 2019. Inasmuch as Mr. McGhee testified
that the same substance had always been used when attaching headstones, there is clearly
evidence here to support Ms. Davis’ assertion at summary judgment that putty was used
with respect to the installation of the headstone at issue.4
4
Of course, this is not to say that the Defendant will be unable to contest this factual proposition at
trial and demonstrate that the substance it used was not in fact putty. We merely hold that the summary
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Although Mr. Rico’s affidavit testimony served as evidence that the Defendant’s use
of putty resulted in the fall of the headstone, the Defendant appears to raise two primary
objections to Mr. Rico. First, the Defendant appears to cast aspersions on Mr. Rico’s
competency to provide testimony as an expert in this case. We do not share the Defendant’s
concerns, and accordingly, we find no basis to fault the trial court in failing to strike any
of Mr. Rico’s affidavits from the record. Indeed, as to the Defendant’s specific contention
that Mr. Rico does not satisfy the standards under Rule 702 of the Tennessee Rules of
Evidence, we note that Rule 702 provides that one may be an expert by “knowledge, skill,
experience, training, or education.” Tenn. R. Evid. 702. The record reflects that Mr. Rico
has been in the monument business for fifty years. He has not only been an installer of
monuments but has also owned his own monument business for thirty-four years. We have
no quarrel with the trial court’s consideration of his opinions on the proper manner of
installing gravestone monuments.5
A second primary concern of the Defendant relates to the trial court’s ability to
consider the supplemental affidavit from Mr. Rico due to its belated filing with the court
three calendar days before the summary judgment hearing. As previously noted, the
submission of Mr. Rico’s supplemental affidavit appears to have been aimed at curing any
perceived deficiencies that arguably accompanied his first one. There is no dispute that
Mr. Rico’s supplemental affidavit was not strictly filed within the parameters of Rule
56.04, which instructs that the party opposing summary judgment “may serve and file
opposing affidavits not later than five days before the hearing.” Tenn. R. Civ. P. 56.04.
Nevertheless, that does not mean the trial court was incapable of considering it in reference
to the Defendant’s pending motion. “[A] trial court, acting within its discretion, may waive
the requirements of [Rule 56] in an appropriate situation.” Owens v. Bristol Motor
Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001).
Here, as we explained in an earlier footnote in this Opinion, the terms of the trial
court’s order indicate that it considered the supplemental affidavit when ruling on the
Defendant’s summary judgment motion. We find no abuse of its discretion in its decision
to do so, especially considering the fact that the prior affidavit (which essentially spoke on
the same matters as the supplemental affidavit) was filed within the time restraints imposed
by Rule 56.
Error does lie, however, in the trial court’s ultimate conclusion. As already evident
from our earlier exposition of the trial court’s holding, the trial court placed particular
emphasis in its ruling that there was no certainty as to what happened in this case. It then
judgment record contains evidence supporting Ms. Davis’ factual assertion concerning this material fact.
5
Although the Defendant also contends that Mr. Rico’s testimony is “wholly irrelevant” because
there is not proper evidence that putty was used, this argument has no merit based on our foregoing
discussion about Mr. McGhee’s testimony and the Defendant’s response to Ms. Davis’ requests for
production.
-6-
proceeded to speculate as to various potential causes of Ms. Davis’ 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 Ms. Davis 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
Ms. Davis has “demonstrate[d] the existence of specific facts in the record which could
lead a rational trier of fact to find in favor of the nonmoving party,” Rye, 477 S.W.3d at
265, summary judgment was not appropriate.
Our conclusion about this matter notwithstanding, we do not hold that the trial
court’s summary judgment order should be reversed in its entirety. Our discussion herein
has been specifically focused on the proof relating to the Defendant’s alleged negligence
in installing the monument. That is what we understand the nature of Ms. Davis’ appellate
challenge to relate to, and our holding is restricted accordingly. Thus, to the extent that the
complaint in this matter involved allegations of negligence against the Defendant
independent of its installation of the subject headstone, the trial court’s dismissal of such
claims is undisturbed.
CONCLUSION
Ms. Davis pointed to facts and evidence in the record which could allow a rational
trier of fact to find in her favor. The trial court’s summary dismissal of her complaint is
therefore reversed as to her assertion that the Defendant was negligent when installing the
headstone at issue.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
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