Gloria Keene and husband, Edward Keene v. Cracker Barrel Old Country Store, Inc.

GLORIA KEENE and husband, )
EDWARD KEENE, )
) Appeal No.
Plaintiffs/Appellants, ) 01-A-01-9505-CV-00211
)
v. )
) Davidson Circuit
CRACKER BARREL OLD COUNTRY ) No. 88C-2728
STORE, INC., )
)
Defendant/Appellee. )
FILED
Oct. 25, 1995
Cecil Crowson, Jr.
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE THIRD CIRCUIT COURT OF DAVIDSON COUNTY
THE HONORABLE BARBARA N. HAYNES, JUDGE
KEITH V. MOORE
100 North Main Building
Suite 3217
Memphis, Tennessee 38103
ATTORNEY FOR PLAINTIFFS/APPELLANTS
MARTIN D. HOLMES
Stewart, Estes & Donnell
14th Floor, 424 Church Street
Third National Financial Center
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
This is an appeal by plaintiffs/appellants, Gloria and
Edward Keene, from the trial court's order granting partial summary
judgment to defendant/appellee, Cracker Barrel Old Country Store,
Inc. ("Cracker Barrel").
The pertinent facts and history are as follows. On 27 July
1987, Mrs. Keene entered a Cracker Barrel restaurant. While being
led to her table by a Cracker Barrel employee, Mrs. Keene fell. As
a result of the fall, Mrs. Keene broke her left hip, more
specifically, her left femoral neck. Dr. Morris, an orthopedic
surgeon, treated Mrs. Keene. On 26 July 1988, Mr. and Mrs. Keene
filed a complaint alleging that Cracker Barrel was negligent.
Over the next few years, Mrs. Keene developed avascular
necrosis in her left hip. This condition causes the head of the
femur or the ball of the hip to die because of an insufficient
supply of blood. As the bone dies, the hip collapses. In addition
to the bone dying, the cartilage dies. The death of the cartilage
causes a great deal of pain because there is no cushion left
between the bones and they grind against one another. Mrs. Keene
also developed an antalgic or painful gait as a result of the hip
break. Simply stated, this is a limp. For example, as Mrs. Keene
"puts her foot down on the side with the broken hip, she gets off
that hip very quickly onto the next foot."
Three years after Mrs. Keene fell in the Cracker Barrel, she
was outside working in her garden. While there, she saw some worms
on a lower limb of her pecan tree. In order to treat the tree, she
climbed onto the first step of a small ladder. Mrs. Keene claims
that as she was about to get down her left leg collapsed and she
fell. As a result of the fall, she broke her right femoral neck.
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Once again, Dr. Morris treated Mrs. Keene. Subsequently, Dr.
Harkess, an orthopedic surgeon, preformed hip replacement surgery
on Mrs. Keene's right hip.
Plaintiffs filed an amended complaint on 7 January 1991 and
alleged that the second "fall was the direct and proximate result
of a weakened and injured left hip. . . ." In April 1992, the
court sustained Cracker Barrel's motion for summary judgment.
Plaintiffs appealed to this court. After reviewing the record,
this court held that the trial court had erred in granting the
motion. This court reversed the decision and remanded the case to
the trial court. Keene v. Cracker Barrel Old Country Store, Inc.,
853 S.W.2d 501 (Tenn. App. 1992) .
Cracker Barrel then moved for partial summary judgment
alleging that plaintiffs could not "establish, by competent expert
medical proof, that the second fall . . . was caused by a 'weakened
and injured left hip.'" In support of their motion, Cracker Barrel
relied on the depositions of Doctors Morris and Harkess taken by
plaintiffs and its Memorandum in Support of the Motion for Partial
Summary Judgment which is not part of the record on appeal. In
response, plaintiffs pointed to the deposition testimony of Mrs.
Keene, Dr. Morris, and Dr. Harkess. After hearing arguments and
reviewing the record, the trial court entered an order granting
Cracker Barrel's motion for partial summary judgment. By consent
order, the trial judge amended the order making it a final judgment
pursuant to Tennessee Rule of Civil Procedure 54.02.
On 6 March 1995, Plaintiffs filed their notice of appeal.
Plaintiffs presented three issues on appeal. We can address all
three by determining whether the trial court erred when it granted
Cracker Barrel's motion for partial summary judgment.
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As a starting point, it is important to note that "[a]s a
general rule, negligence cases are not amenable to disposition
under Tennessee Rule of Civil Procedure 56 summary judgment
proceedings unless, from all of the facts together with the
inferences to be drawn from the facts, the facts and inferences are
so certain and uncontroverted that reasonable minds must agree."
Keene, 853 S.W.2d at 502-03 (citing Wolfe v. Hart, 679 S.W.2d 455,
457 (Tenn. App. 1984)). Thus, a court must grant a motion for
summary judgment when the moving party establishes that there is no
genuine issue as to any material fact. Byrd v. Hall, 847 S.W.2d
208, 214 (Tenn. 1993). The moving party may establish such a lack
of controversy by showing that the non-moving party is unable to
prove an essential element of the case. In other words, summary
judgment is appropriate when the non-moving party fails to
"establish the existence of an essential element to that party's
case and on which the party will bear the burden of proof at
trial." Moman v. Walden, 719 S.W.2d 531, 533 (Tenn. App. 1986)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct 2548, 91
L. Ed. 2d 265 (1986)); see also Alexander v. Memphis Indiv.
Practice Assoc., 870 S.W.2d 278, 280 (Tenn. 1994) (citing Celotex
Corp., 477 U.S. at 317). The logic behind the rule is that if a
party is unable to prove an essential element of the case then all
other factual issues are irrelevant. To explain, if a party fails
to establish proximate cause in a negligence case, then it no
longer matters whether there is a factual dispute as to breach of
duty. Alexander, 870 S.W.2d at 280; Moman, 719 S.W.2d at 533.
The non-moving party, however, does not have the initial
burden of producing evidence as to every essential element of the
case. Armes v. Hulett, 843 S.W.2d 427, 429 (Tenn. App. 1992). In
fact, the movant "must initially produce evidence to support a
judgment. . . ." Id. at 431; see also Byrd v. Hall, 847 S.W.2d at
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211. In Armes, this court explained:
In seeking a summary judgment, the [movant] must
produce or point out evidence in the record which,
if uncontradicted, entitles [movant] to judgment as
a matter of law. If the [non-moving party] offers
no evidence to contradict such evidence, then
[movant] is entitled to summary judgment. If the
[non-moving party] offers evidence to contradict or
otherwise avoid the effect of the evidence offered
by [movant], then there is no uncontradicted
evidence to entitle [movant] to judgment as a
matter of law.
Armes, 843 S.W.2d at 429. Thus, the non-moving party must produce
evidence which contradicts the allegations asserted by the movant
in the motion, not prove their entire case in defense of the
motion. Simplifying the discussion even further, the court in
Armes used the following two questions to determine whether the
grant of summary judgment was appropriate: "(1) Did the [movant]
produce evidence which, if uncontradicted, entitle [movant] to
judgment as a matter of law; and (2) If so, is such evidence
offered by [movant] uncontradicted." Id. at 431. In this case,
the first question is: Did Cracker Barrel produce evidence which,
if uncontradicted, would prove that plaintiffs are unable to
"establish, by competent expert medical proof, that the second fall
. . . was caused by a 'weakened and injured left hip.'" The answer
is no.
In its argument, Cracker Barrel sets forth two different
interpretations of the record, but fails to establish that
plaintiffs cannot prove their interpretation of the record. One
interpretation offered by Cracker Barrel is that osteoporosis
caused the right hip to break. To support this contention, Cracker
Barrel points to the testimony of Dr. Morris. In his 1994
deposition taken by plaintiffs, Dr. Morris testified that femoral
neck fractures are very common among post-menopausal woman that
have osteoporosis and that he thought Mrs. Keene, who is post-
menopausal, had some osteoporosis. A second interpretation,
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offered by Cracker Barrel, is that the femoral neck fractured first
and then Mrs. Keene fell. This theory is supported by Dr. Morris's
testimony that femoral neck fractures can occur without trauma.
The problem with this argument is that by suggesting two
different interpretations of the same evidence Cracker Barrel
essentially concedes that there is a factual dispute. More
important, factual disputes over causation are for the jury to
decide. The court will only make such determinations when
causation is definite. Brookins v. The Round Table, Inc., 624
S.W.2d 547, 550 (Tenn. 1981). Further, the fact that there may be
other explanations does not mean that plaintiffs cannot show
causation. After all, there can be more than one cause of an
injury. See Whitehurst v. Howell, 20 Tenn. App. 314, 329, 98
S.W.2d 1071, 1081 (1936).
Cracker Barrel points to two other pieces of evidence to
support its contention that plaintiffs are unable to prove
causation. First, Cracker Barrel points out that a fall to the
ground usually causes an intra-trochanteric fracture. Once again
Cracker Barrel quotes a portion of Dr. Morris' testimony to support
this point. The problem with the quoted testimony is that it also
reveals that a fall to the ground can result in a femoral neck
fracture. Dr. Morris explained as follows:
Q You mentioned, Doctor, that typically, when
someone falls and fractures their hip through
contact with the ground, that there is a
different type of fracture?
A Typically, that is what we call an intra-
trochanteric fracture.
Q Could you explain in layman's terms what that is?
A The trochanter is the part of the hip that you
can feel when you take your hand to your side and
press on your hip bone. You are feeling the
trochanter. And that is the part that hits the
ground when you fall on your hip and that is the
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part that breaks.
The femoral neck is the little connection
between the trochanter and the head of the
femur . . . . And it's the part of the bone
that takes the sheer when walking or standing
or twisting or turning, and that is when it's
most likely to fracture.
Now, you can fracture your femoral neck
by falling on your trochanter. I am sure that
happens. So, both ways could happen.
This testimony fails to establish that plaintiffs will not be able
to prove causation at trial. In fact, plaintiffs may use this
along with Dr. Morris's other testimony to prove causation. For
example, in Dr. Morris' 1990 deposition taken by plaintiffs, he
testified that he thought within a reasonable degree of medical
certainty that "the fall caused the fracture of the [left] hip."
Note that the left hip break was a femoral neck fracture not an
intra-trochanteric fracture. Therefore, it is reasonable to
conclude that if the left hip break was the result of a fall then
the right hip break was too.
Second, Cracker Barrel argues that the "plaintiff's sole
proof on the issue of causation" is Mrs. Keene's own testimony.
It contends that such proof is insufficient on a summary judgment
motion because it is simply a reassertion of the allegations made
in the complaint. Next, Cracker Barrel contends that plaintiffs
cannot use Mrs. Keene's testimony because it is lay opinion
testimony prohibited under Tennessee Rules of Evidence 701(a).
Cracker Barrel goes on to argue that plaintiffs can only establish
causation in this case by using expert medical proof. To support
its argument, Cracker Barrel analogizes this case with workman's
compensation and medical malpractice cases. Although Cracker
Barrel's legal contentions may be sound, it loses the argument
because Mrs. Keene's deposition testimony is not plaintiffs' only
evidence of causation. In opposition to the motion, Plaintiffs
offered the deposition testimony of Mrs. Keene, Dr. Morris, and Dr.
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Harkess.
Cracker Barrel's evidence fails to prove that plaintiffs are
unable to "establish, by competent expert medical proof, that the
second fall . . . was caused by a 'weakened and injured left hip.'"
In summary, Cracker Barrel's two interpretations prove only that
the parties can argue the facts differently and that there is a
factual dispute. Second, Dr. Morris' testimony, regarding the
different types of hip brakes, failed to prove that the fall did
not result in Mrs. Keene's right femoral neck fracture. Finally,
Cracker Barrel's attack of Mrs. Keene's testimony is irrelevant
because plaintiffs rely on additional expert medical testimony to
demonstrate causation.
In addition to the faults in Cracker Barrel's argument
listed above, there is one more worth mentioning. That is, Cracker
Barrel seems to argue that plaintiffs must establish by a
preponderance of the evidence that the weakened condition of the
left hip caused the fall and the resulting right femoral neck
fracture. Unfortunately for Cracker Barrel, while this is
plaintiffs burden at trial, it is not their burden on summary
judgment. It is not necessary for a non-moving party to try their
case at the summary judgment stage of a trial. Instead, the non-
moving party must "demonstrate, by affidavits or discovery
materials, that there is a genuine, material fact dispute to
warrant a trial." Byrd. 847 S.W.2d at 211. Further, the
determination of the issue is weighted in favor of the non-moving
party because the court "must view the evidence in the light most
favorable to the opponent of the motion, including the benefit of
every reasonable inference that can be drawn therefrom." Jones v.
Home Indemnity Ins. Co., 651 S.W.2d 213, 214 (Tenn. 1983).
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Although we concluded that Cracker Barrel was not entitled
to summary judgment, it is worth noting that plaintiffs carried
their burden of establishing the existence of a genuine issue of
material fact. Clearly there is a factual dispute. Cracker Barrel
argues that Mrs. Keene's left hip did not give way causing her to
fall to the ground. Plaintiffs, not surprisingly, argue just the
opposite. In addition, because the factual dispute "must be
decided in order to resolve the substantive claim[,]" the factual
dispute is material. Id. at 215. Finally, the material fact issue
is genuine. In Byrd, the Tennessee Supreme Court defined the term
"genuine issue." Id. The court stated, "the test for a 'genuine
issue' is whether a reasonable jury could legitimately resolve that
fact in favor of one side or the other." Id. Plaintiffs have
presented an interpretation of the evidence different from that of
Cracker Barrel. Initially, plaintiffs established through Dr.
Morris's testimony that Mrs. Keene had avascular necrosis of the
left hip. Next, plaintiffs pointed out testimony showing that
avascular necrosis is a painful condition and that Mrs. Keene had
an antalgic gait due to the pain in her left leg. Dr. Morris also
testified that when a patient favors one leg due to pain in the
other, the muscles in the favored leg begin to atrophy or waste
away. In fact, Dr. Morris went so far as to say that "[o]ne of the
things you will always see with a patient with avascular necrosis
of the hip would be some atrophy of the thigh muscle. . . ." In
the 1994 deposition, plaintiffs asked Dr. Morris if it was usual
and ordinary for a person's leg to "give way" when the person's
leg has some atrophying of the muscles, and Dr. Morris answered
yes. At the end of Dr. Morris' 1994 deposition, he testified that
the right hip break could have been the result of a fall and that
all of his opinions were within a reasonable degree of medical
certainty. Finally, plaintiffs pointed to portions of Dr.
Harkess's deposition wherein he stated that the right femoral neck
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fracture "was definitely the result of a fall" and that there was
evidence of avascular necrosis in the left hip. Disregarding
plaintiff's use of Mrs. Keene's testimony and reviewing the
evidence in a light most favorable to plaintiffs, this court is of
the opinion that plaintiffs have submitted sufficient evidence such
that "a reasonable jury could legitimately resolve that fact in
favor of one side or the other." Thus, plaintiffs established the
existence of a genuine issue of material fact.
Therefore, it results that the judgment of the trial court
is reversed, and the case is remanded to the trial court for a
trial on the merits. Costs on appeal are taxed to the
defendant/appellee, Cracker Barrel Old Country Store, Inc.
_____________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, P.J., M.S.
_______________________________
BEN H. CANTRELL, J.
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