Thomas et al v. The Fresh Market, Inc. et al

Filing 84

MEMORANDUM OPINION. Defendant Fresh Markets motion for summary judgment as to Ms. Thomas negligence per se claims against Fresh Market will be GRANTED. Defendant Fresh Markets motion for summary judgment as to Ms. Thomas' negli gence claim and Mr. Thomas' loss of consortium claim against Fresh Market will be DENIED. These claims remain for trial. Defendant DDRs motion for summary judgment as to Ms. Thomas negligence claim and negligence per se claim against DDR, as well as Mr. Thomas loss of consortium claim against DDR will be GRANTED. All claims against DDR will be DISMISSED. Signed by Magistrate Judge Christopher H Steger on 2/19/2019. (AML, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
BRENDA THOMAS and
GARY THOMAS
Plaintiff,
v.
THE FRESH MARKET, INC. and
DDR OVERLOOK HAMILTON, LLC
Defendants.

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No. 1:15-cv-323
Mag. Judge Christopher H. Steger

MEMORANDUM OPINION
I.

Introduction
Plaintiff Brenda Thomas (Plaintiff or “Ms. Thomas”) injured her shoulder when the

mobility scooter she was driving tipped over, and she fell to the pavement. Plaintiff had been
shopping at a Chattanooga strip mall and was driving her mobility scooter on a sidewalk from
Hobby Lobby to Fresh Market when she encountered a stack of firewood that blocked the way to
the store entrance. The firewood had been stacked on the sidewalk by Fresh Market employees.
To get around the firewood, Plaintiff had to leave the sidewalk on her mobility scooter and cross
a speed bump in the parking lot. As she attempted to drive over the speed bump, her mobility
scooter tipped over and Plaintiff fell to the ground.
Plaintiff has brought claims of simple negligence and negligence per se against The Fresh
Market Inc. (“Fresh Market”)—for blocking the sidewalk with firewood—and against the strip
mall developer and owner, DDR Overlook Hamilton LLC (“DDR”) for construction of the speed
bump. Plaintiff’s husband, Gary Thomas (“Mr. Thomas”), asserts a loss of consortium claim
against both Defendants. Fresh Market and DDR have moved for summary judgment on all claims

[Docs. 42 and 46]. For reasons that follow, Fresh Market’s summary judgment motion [Doc. 46]
is GRANTED IN PART and DENIED IN PART, and DDR’s summary judgment motion [doc.
42] is GRANTED.
II.

Facts
Plaintiffs, Mr. and Ms. Thomas, live in Bridgeport, Alabama [Doc. 68-1, Dep. of Brenda

Thomas, P. 12, L. 12-16]. Ms. Thomas has lumbar degenerative disc disease. Walking long
distances hurts her back, so she uses a mobility scooter 1 when shopping. She is able to walk short
distances. Ms. Thomas’ accident occurred at the Overlook at Hamilton Plaza Shopping Center
(the “Overlook strip mall”) located in Chattanooga, Tennessee. The Overlook strip mall was
owned by DDR; Fresh Market was a tenant.
On December 10, 2014, Mr. and Ms. Thomas went to the Overlook strip mall with their
daughter for Christmas shopping. Ms. Thomas and her daughter left Hobby Lobby to go to Fresh
Market. They traveled on a sidewalk connecting the two stores—Ms. Thomas on her mobility
scooter; her daughter walking. The entrances to Hobby Lobby and Fresh Market are fronted by a
parking lot. The sidewalk allows store patrons to move from one store to another without entering
the parking lot. Travel lanes for cars in the parking lot parallel the sidewalk in front of the
Overlook strip mall [See Doc. 68-3, photograph of entrances to Hobby Lobby and Fresh Market;
Docs. 68-5 and 68-6, photographs of travel lanes]. A speed bump is located in the parking lot
across the two travel lanes immediately in front of Fresh Market. It is perpendicular to the sidewalk
and extends from the sidewalk curb—across the two travel lanes—to the base of a light pole
adjacent to the first parking space on the far side of the travel lanes [See Docs. 68-5 and 68-6,

1

The mobility scooter is a Pride SC73 Go-Go Sport 3-wheel.

pictures of speed bump outside the entrance of Fresh Market]. The speed bump butts up against
the sidewalk curb on one end and the base of the light pole on the other. [See Id.].
The sidewalk curb is beveled in front of the Fresh Market entrance to permit wheelchair or
mobility scooter access to and from the parking lot. As indicated, however, Ms. Thomas was
attempting to reach the Fresh Market entrance from the sidewalk which runs the length of the front
of the Overlook strip mall. As she got close to the Fresh Market entrance, she had to pass through
a space bounded by a large, concrete support pillar on one side and the front exterior wall of Fresh
Market on the other. [See Doc. 68-3, 68-4, photographs of Fresh Market entry and sidewalk]. In
that space, Fresh Market had stacked firewood on the sidewalk against the front exterior wall,
roughly opposite the support pillar. Consequently, the sidewalk passageway between the front
exterior wall and the support pillar was partially obstructed [See Doc. 68-4, photograph of sidewalk
with stacked firewood]. With 24 feet yet to go before she reached the Fresh Market entrance, Ms.
Thomas’ way was blocked. 2
When Ms. Thomas concluded that the sidewalk was blocked for scooter travel to the Fresh
Market entrance, her daughter offered to drive the scooter into the parking lot and over the speed
bump for her. In her deposition, Ms. Thomas admitted that she probably could have accepted her
daughter’s offer and walked the remaining short distance to the Fresh Market entrance. She
declined, however, because she was already on the scooter and thought she could negotiate the
speed bump herself. Consequently, Ms. Thomas turned the scooter around on the sidewalk,
motored to a nearby curb ramp [see Doc. 68-4, photograph including ramp], and entered the

2

The sidewalk pavement extends on the other side of the pillar next to the curb, but there is no proof before the
Court as to whether this portion of the pavement was wide enough to accommodate Ms. Thomas' scooter [See Doc.
68-4, photograph of pillar and pavement]. Ms. Thomas testified she did not consider taking her scooter on that
section of pavement, and she did not consider that section to be part of the sidewalk. Common sense suggests that
operating a three-wheeled scooter immediately next to—and parallel with—a curb could create significant tipping
potential. In any event, there is no proof before the Court that this was an option for Ms. Thomas, and any
argument to that effect would necessarily involve a genuine issue of material fact.

parking lot travel lanes paralleling the sidewalk. Driving toward the Fresh Market entrance now
required Ms. Thomas to negotiate the speed bump traversing the travel lanes. As Ms. Thomas
attempted to drive over the speed bump, her scooter overturned and fell on her, resulting in an
injury to her shoulder
In her deposition, Ms. Thomas admitted that she had read the consumer safety guide for
her mobility scooter which provides the following warning: "Warning! Even though your scooter
may be capable of handling greater obstacles, we recommend you do not attempt to negotiate a
curb that has a height greater than 2 in. (5 cm). Doing so could cause instability in your scooter."
[Doc. 56-1, Ex. 6 to B. Thomas dep., Consumer Safety Guide at 13, Page ID # 646]. 3
With respect to the Defendants’ role in the above-described incident, the Court also notes
that, at the time of the scooter accident, Fresh Market and DDR were parties to a lease agreement
which contained the following relevant provision:
TENANT shall have the right to… (b) erect such display racks as to adequately
display the foregoing so long as such display racks (i) are located in such a place
so as not to unreasonably obstruct the normal flow of pedestrian traffic along and
across the sidewalk immediately in front of TENANT’S store and (ii) shall not
unreasonably hinder pedestrian access between TENANT’S store and any other
co-tenants within the shopping center….
[Doc. 63, Lease, Section 4.1].
III.

Discussion
A.

Standard of Review

Fed. R. Civ. P. 56(c) provides that summary judgment will be rendered if there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law. The
burden is on the moving party to show that no genuine issue of material fact exists, and the Court

3

Page ID # is the sequential number assigned to each page of each document electronically filed in the Court
record and is found in the bottom right corner of each page.

must view the facts and all inferences to be drawn therefrom in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); 60 Ivy Street Corp. v. Alexander,
822 F.2d 1432, 1435 (6th Cir. 1987). The moving party may satisfy its burden by presenting
affirmative evidence that negates an element of the nonmoving party's claim or by demonstrating an
absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,
323-35 (1985); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). There are “no express or
implied requirements in Rule 56 that the moving party support its motion with affidavits or other
similar materials negating the opponent’s claim;” it is enough for the movant to “point[ ] out” an
absence of evidence on an essential element of the non-movant’s claim. Celotex, 477 U.S. at 32325; see also Harvey v. Campbell Cnty, Tenn., 453 Fed. Appx. 557, 560 (May 10, 2011).
Once the moving party has fulfilled his initial burden under Rule 56, the nonmoving party is
not entitled to a trial merely on the basis of allegations. The nonmoving party is required to “go
beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324-25; see also 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary
judgment if the nonmoving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d
211, 220 (6th Cir. 1996).
The judge's function at the point of summary judgment is limited to determining whether
sufficient evidence has been presented to make the issue of fact a proper jury question, and not to
weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); 60 Ivy Street, 822 F.2d at 1435-36.

In a diversity jurisdiction case such as this one, the Court must apply the substantive law
of the forum state. Kepley v. Lanz, 715 F.3d 969, 972 (6th Cir. 2012); Pennington v. State Farm
Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938)). In doing so, the court must “follow the decisions of the state's highest court when
that court has addressed the relevant issue.” Kepley, 715 F.3d at 972 (quoting Savedoff v. Access
Grp., Inc., 524 F.3d 754, 762 (6th Cir. 2008)). Accordingly, the Court will apply Tennessee law
to the substantive issues in this case.
B.

Analysis
1.

Negligence Per Se Claim Against Fresh Market

In her Complaint, Plaintiff Brenda Thomas alleges Fresh Market was negligent per se by
blocking the sidewalk with firewood and failing to offer an accessible route from Hobby Lobby to
Fresh Market for disabled persons in violation of Tenn. Code Ann. § 68-120-202, as well as "[t]he
applicable building code." [Doc. 1, Complaint, Count I]. Plaintiff asserts that these violations
caused her injury because she was "required to travel in the parking lot and over a speed bump to
get to the only entrance to Fresh Market from Hobby Lobby." [Id. ¶ 28]. Plaintiffs do not identify
the specific "applicable building code" referenced in this count. The Court notes that this claim
against Fresh Market is not based on the placement or construction of the speed bump. [See Doc.
1, Complaint, Count I].
The Tennessee Supreme Court has summarized the doctrine of negligence per se as
follows:
The standard of conduct expected of a reasonable person may be prescribed in a
statute and, consequently, a violation of the statute may be deemed to be negligence
per se. When a statute provides that under certain circumstances particular acts
shall or shall not be done, it may be interpreted as fixing a standard of care . . . from
which it is negligence to deviate. In order to establish negligence per se, it must be
shown that the statute violated was designed to impose a duty or prohibit an act for

the benefit of a person or the public. It must also be established that the injured
party was within the class of persons that the statute was meant to protect.
Estate of French v. Stratford House, 333 S.W.3d 546, 560-61 (6th Cir. 2011), superseded on other
grounds by Tennessee Civil Justice Act of 2011, ch. 510, 2011 Tenn. Pub. Acts 1505 (codified at
Tenn. Code Ann. § 29-26-101 et seq.) (quoting Cook ex rel. Uithoven v. Spinnaker's of Rivergate,
Inc., 878 S.W.2d 934, 937 (Tenn.1994)).
A negligence per se claim may be based on violations of regulations and ordinances as well
as statutes. Estate of French, 333 S.W.3d at 561. Not every violation of a statute, ordinance, or
regulation constitutes negligence per se; "the courts must ultimately decide whether they will adopt
a statutory standard to define the standard of conduct of reasonable persons in specific
circumstances." Id. (quoting Whaley v. Perkins, 197 S.W.3d 665, 673 (Tenn. 2006)). Further, the
statute, regulation, or ordinance must provide specific standards in order to provide the basis of a
negligence per se claim. Rains v. Bend of the River, 124 S.W.3d 580, 590 (Tenn. Ct. App. 2003)
("To trigger the doctrine [of negligence per se], the statute must establish a specific standard of
conduct.") 4
In the instant case, Ms. Thomas bases her negligence per se claims against Fresh Market
on Tenn. Code Ann. § 68-120-202 and "[t]he applicable building code." [See Doc. 1, Complaint ¶
29]. 5 Tenn. Code Ann. § 68-120-202 states, "[i]t is declared to be the policy of the state of
Tennessee to make all public buildings accessible to and functional for persons who have a
physical disability." The Court finds this statement of policy to be too vague and general to define

4

See also Whaley, 197 S.W.3d at 672 (“When a statute provides that under certain circumstances particular acts
shall or shall not be done, it may be interpreted as fixing a standard of care . . . from which it is negligence to
deviate.”) (quoting Prosser and Keeton on Torts § 36, p. 220 (5th ed.1984)); Estate of French, 333 S.W. 3d at 561
(finding "[t]he federal regulations simply too vague and general to constitute a standard of care by which a jury, or
for that matter a court, can effectively judge the acts or omissions of health care providers and nursing home
operators.")
5
Plaintiff specifically disavows relying on Tenn. Code Ann. § 68-120-204 as the basis for her negligence per se
claim against Fresh Market. See Plaintiffs' Response, Doc. 68 at 7, Page ID # 842].

the standard of conduct required of Fresh Market in the circumstances of this case. Tenn. Code
Ann. § 68-120-202 cannot be the basis for a negligence per se claim against Fresh Market.
Ms. Thomas' negligence per se claim against Fresh Market is also based on "[t]he
applicable building code, which adopts the 1991 North Carolina State Handicapped Code,
requir[ing] that the accessible entrance 'connect to the accessible route leading to public
transportation stops, parking areas and walkways between primary entrances to other buildings in
a given complex.'" [Doc. 1, Complaint ¶ 30]. Fresh Market correctly counters that "Plaintiffs do
not provide citation to any building code provision they allege Fresh Market violated . . . ." [Doc.
56, Fresh Market's memorandum in support of motion for summary judgment at 11, Page ID #
596]. Nor do Plaintiffs identify the "applicable building code" in their response to Fresh Market's
motion for summary judgment. Plaintiffs simply state, "the applicable building code in this matter
adopts the 1991 North Carolina State Building Code." [Doc. 68, Plaintiffs' Response at 7, Page
ID # 842]. Further, a copy of this building code is not attached as an exhibit to either the complaint
or Plaintiffs' response. Plaintiffs cannot base a negligence per se claim on an unspecified building
code which purportedly adopts a more specific building code. Consequently, Plaintiffs' claim
alleging negligence per se against Fresh Market shall be dismissed with prejudice.
2.

Negligence Per Se Claim Against DDR

Ms. Thomas alleges DDR was negligent per se "by placing a speed bump in the parking
lot that extended from the first parking spaces to the curb of the sidewalk in front of the building."
[Doc. 1, Complaint ¶ 40]. According to Ms. Thomas, the placement of this speed bump caused
the entrance to Fresh Market to be inaccessible to disabled persons in violation of "Tennessee
statutes and the applicable building codes regarding accessibility to buildings." [Id. ¶ 44]. As
with the negligence per se claim against Fresh Market, Ms. Thomas references specifically Tenn.

Code Ann. § 68-120-202 in this count. [Id. ¶ 42]. In her response to DDR's motion for summary
judgment, she also asserts, "the applicable building code in this matter adopts the 1991 North
Carolina State Building Code." [Doc. 64, Plaintiff's Response at 7, Page ID # 789]. The
"applicable building code" is not identified. For the same reasons that the Court granted Fresh
Market's motion for summary judgment as to the negligence per se claim, the Court will also
grant DDR's motion for summary judgment as to the negligence per se claim.
3.

Negligence Claim Against Fresh Market

The gravamen of this case is a premises liability claim against Fresh Market. Plaintiff
alleges Fresh Market stacked firewood on the sidewalk thereby obstructing her safe entry into
Fresh Market. As a result, Ms. Thomas asserts, Fresh Market forced her to use an unsafe,
alternative route to enter Fresh Market; she entered the travel lanes with her scooter; she attempted
to cross over a speed bump; the scooter tipped over when crossing the speed bump; and Ms.
Thomas fell from the scooter and sustained serious injuries to her shoulder.
“Business proprietors are not the insurers of their patrons’ safety.” Parker v. Holiday
Hospital Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014) (quoting Blair v. West Town Mall,
130 S.W.3d 761, 764 (Tenn. 2004)). However, business proprietors must exercise due care under
all the circumstances. Parker, 446 S.W.3d at 350, see also, Eaton v. McLain, 891 S.W.2d 587,
593-94 (Tenn. 1994) (holding business proprietors have a general "duty to maintain the premises
in a reasonably safe and suitable condition.") Persons seeking to bring a claim based on premises
liability must prove the elements of a negligence claim. Parker, 446 S.W.3d at 350. To state a
claim for negligence under Tennessee law, a plaintiff must allege: (1) a duty of care owed by the
defendant to the plaintiff; (2) conduct by the defendant breaching that duty; (3) an injury or loss to

the plaintiff; (4) causation in fact; and (5) proximate or legal cause. Borne v. Celadon Trucking
Servs., Inc., 532 S.W.3d 274, 299 (Tenn. 2017).
In addition to these elements, the plaintiff in a premises liability action must also prove
either “(1) that the premises owner or operator caused the condition, or (2) if not, ‘that the owner
or operator had actual or constructive notice that the condition existed prior to the accident.’”
Corley v. Wal-Mart Stores East, LP, 637 Fed. App’x. 210, 211 (6th Cir. 2016) (quoting Blair, 130
S.W.3d at 764); see also Parker, 446 S.W. 3d at 350. There is no dispute that Fresh Market caused
the condition at issue in this case, i.e., the stacked firewood on the sidewalk which blocked Ms.
Thomas' path to Fresh Market's entrance.
Fresh Market argues it is entitled to summary judgment on this negligence claim for three
reasons: (1) it did not breach a duty of care to Ms. Thomas for the condition of the sidewalk because
this incident was not reasonably foreseeable; (2) it owed no duty of care to Ms. Thomas for the
condition of the parking lot; and (3) if it did breach a duty of care, that breach was not the proximate
cause of Ms. Thomas' fall because this incident was not foreseeable. The Court will address each
argument and deny Fresh Market's motion for summary judgment as to Ms. Thomas' negligence
claim.
a)

Breach of Duty of Care as to the Sidewalk

Fresh Market argues it "did not breach a duty of reasonable care by placing the firewood
in front of the store because the injury sustained by Ms. Thomas was not a foreseeable risk to such
action." [Doc. 56, Fresh Market's memorandum at 18, Page ID # 602]. The Court disagrees with
Defendant’s rationale.
"Legal duty has been defined as the legal obligation owed by a defendant to a plaintiff to
conform to a reasonable person standard of care for the protection against unreasonable risks of

harm." West v. E. Tennessee Pioneer Oil Co., 172 S.W.3d 545, 551 (Tenn. 2005). The Tennessee
Supreme Court has explained how to analyze whether a duty in a particular set of circumstances
exists:
Our recent pronouncements concerning the duty of care in negligence cases reveal
a balancing approach consistent with our prevailing principles of fairness and
justice. In McCall v. Wilder, 913 S.W.2d 150 (Tenn.1995), we observed that “[a]
risk is unreasonable and gives rise to a duty to act with due care if the foreseeable
probability and gravity of harm posed by defendant's conduct outweigh the burden
upon defendant to engage in alternative conduct that would have prevented the
harm.” McCall v. Wilder, 913 S.W.2d at 153. We have also noted that several
factors are to be considered in deciding whether a risk is an unreasonable one,
thereby giving rise to a duty. “Those factors include the foreseeable probability of
the harm or injury occurring; the possible magnitude of the potential harm or
injury; the importance or social value of the activity engaged in by defendant; the
usefulness of the conduct to defendant; the feasibility of alternative, safer conduct
and the relative costs and burdens associated with that conduct; the relative
usefulness of the safer conduct; and the relative safety of alternative conduct.” Id.
at 153.
McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 901 (Tenn. 1996) (emphasis added); see
also Doe v. Linder Const. Co., 845 S.W.2d 173, 178 (Tenn. 1992) ("If the injury which occurred
could not have been reasonably foreseen, the duty of care does not arise"); Mathern v. West, No.
E2015-02061, 2016 WL 6311283, at 10 (Tenn. Ct. App. Sept. 14, 2016) ("In analyzing duty, the
court must balance the foreseeability and gravity of the potential risk of harm to a plaintiff against
the burden imposed on the defendant in protecting against that harm.")
It is well established that a lessee owes a general duty of ordinary care to patrons to ensure
that the approach to the lessee's business is in a reasonably safe condition. Thompson v. Ruby
Tuesday, Case No. M2004-01869-COA-R3-CV, 2006 WL 468724, *6 (Tenn. Ct. App. Feb. 27,
2006,); Gladman v. Revco Disc. Drug Ctrs., Inc., 669 S.W.2d 677, 678-79 (Tenn. Ct. App. 1984);
Roberts v. Wesleyan College, 450 S.W.2d 21, 26 (Tenn. Ct. App. 1969). Based on the depositions,

affidavits, and exhibits presented to the Court, the Court finds there is no genuine issue of material
fact as to the following matters:
•

The safest route from the Hobby Lobby to the Fresh Market entrance—especially
for a disabled customer using a scooter or wheelchair—included the section of
sidewalk where Fresh Market had stacked firewood;

•

Fresh Market controlled use of this portion of the sidewalk by employing it to sell
store products; other tenants of the Overlook strip mall were not using this portion
of the sidewalk for that purpose.

•

Pursuant to Section 4.1 of the lease between Fresh Market and DDR in effect at the
time of the incident, Fresh Market had a responsibility not to obstruct the sidewalk
in the area where the firewood was stacked.

As a matter of law, the Court finds that Fresh Market owed a general duty of reasonable care to
assure that the sidewalk in front of its store be free of obstacles that would prevent a pedestrian or
disabled patron from accessing the store entrance without having to leave the sidewalk and venture
into the parking lot. See West, 172 S.W.3d at 550 ("Whether the defendant owed the plaintiffs a
duty of care is a question of law to be determined by the court.")
Fresh Market argues that it could not have foreseen that stacking firewood on the sidewalk
near its entrance would create the specific risk that Ms. Thomas would suffer injuries caused by
her scooter tipping over on the speed bump in the travel lanes. A risk is foreseeable "if a reasonable
person could foresee the probability of its occurrence or if the person was on notice that the
likelihood of danger to the party to whom is owed a duty is probable." West, 172 S.W.3d at 551
(quoting Linder Const. Co., 845 S.W.2d at 178.) "[T]he plaintiff must show that the injury was a
reasonably foreseeably probability, not just a remote possibility. . . ."

Linder Const. Co., 845

S.W.2d at 178.
The Court disagrees with Fresh Market's assertion that Plaintiff's injury was not reasonably
foreseeable. Scooters for disabled and mobility-impaired patrons are ubiquitous in big box stores.

Further, parking lot travel lanes are to be used by automobiles and trucks—not by mobility
scooters. A mobility scooter sharing a travel lane with cars for any purpose other than to cross the
travel lanes and reach the sidewalk is inherently dangerous to the person on the mobility scooter.
Likewise, speed bumps are designed to reduce the speed of cars to ensure the safety of shoppers
trying to reach the store entrances. A speed bump is not intended to slow mobility scooters, and,
in fact, presents a significant obstacle. Fresh Market stacked firewood on the sidewalk in front of
its store in such a way that it obstructed travel to the front entrance of its store for any customer
approaching from the direction of the adjacent Hobby Lobby. It was reasonably foreseeable that
a scooter-driving customer approaching from that direction would—upon finding the sidewalk
blocked—leave the sidewalk; enter the parking lot; drive in the travel lanes parallel with the
sidewalk to reach the store entrance; and drive over the speed bump which completely traversed
both travel lanes. Further, it was foreseeable that a mobility scooter (or wheelchair) could tip over
if driven over the speed bump. In short, it is difficult to imagine that the sequence of events that
led to Ms. Thomas’ injury was not foreseen by Fresh Market personnel.
The Court finds that the risk of injury was foreseeable by Fresh Market; the magnitude of
the potential harm was significant; the feasibility of alternative, safer conduct by Fresh Market was
apparent; and the costs and burden of taking alternative steps to avoid the risk were minimal. Had
Fresh Market simply stacked the firewood in a different place so that it did not block the sidewalk,
the risk would have been avoided.
That Fresh Market owed a duty to Ms. Thomas does not necessarily mean Fresh Market
breached that duty. See West, 172 S.W.3d at 552 (holding that after the court finds defendant owed
plaintiff a duty, plaintiff must still prove breach of that duty, injury or loss, cause in fact, and
proximate cause.) Fresh Market asserts it did not breach a duty of care owed to Ms. Thomas

because she could have gotten around the stack of firewood on her mobility scooter by using the
pavement between the support pillar and the sidewalk curb; however, Fresh Market provided no
evidence to support the argument that this portion of the sidewalk was wide enough to
accommodate Ms. Thomas’ mobility scooter. Consequently, the Court finds that genuine issues
of material fact exist as to whether Fresh Market breached its duty of care to maintain a safe
entrance into its store.
If the jury finds Fresh Market did breach its duty of care, the jury can then consider whether
and to what degree, Ms. Thomas is at fault for her own injuries under the doctrine of comparative
fault. See McClung, 937 S.W.2d. at 904 ("if properly raised as a defense, under our doctrine of
comparative fault, a plaintiff's duty to exercise reasonable care for her own safety would be
weighed in the balance.")
b)

Fresh Market's Duty of Care to Ms. Thomas in the Parking Lot

In the alternative, Fresh Market argues that the injury did not occur on the sidewalk; rather,
it occurred in the parking lot where Fresh Market did not owe a duty of care to Ms. Thomas. In
support of this position, Fresh Market relies on Gladman v. Revco Disc. Drug Ctrs., Inc., 669
S.W.2d 677 (Tenn. Ct. App. 1984). In Gladman, the plaintiff parked in the parking lot of a
shopping center and slipped on ice walking to the defendant's store. According to the lease
between the defendant store (lessee) and the property owner (lessor), the property owner was to
maintain the common areas including the parking lot. The Gladman Court held that defendant
store owed no duty to the plaintiff to maintain the entire parking lot and that the responsibility to
do so lay with the lessor. The Gladman Court granted defendant store summary judgment on
plaintiff's negligence claim. Id. at 679. Likewise, Fresh Market asserts, it owed no duty to Ms.
Thomas to maintain the safety of the parking lot (travel lanes).

This case is distinguishable from Gladman. Unlike the plaintiff in Gladman, Ms. Thomas
does not contend that Defendant Fresh Market owed her a duty of care in the parking lot or in the
travel lanes of the parking lot. Rather, Plaintiff alleges that Fresh Market owed her a duty of care
to keep the sidewalk open and free of obstructions, that it breached that duty, and that, as a result,
she was forced into the travel lanes in order to reach the entrance to the store.
Fresh Market's argument that it owed Plaintiff no duty of care in the parking lot ignores
why Ms. Thomas was in the parking lot trying to cross the speed bump in her mobility scooter. A
reasonable jury could find, when considering the facts in the light most favorable to Plaintiff, that
Plaintiff was in the parking lot because Fresh Market obstructed the sidewalk designed to give
patrons a safe route from Hobby Lobby to Fresh Market.
Though couched as an argument relating to duty, Fresh Market's argument is, essentially,
that it was not the cause in fact of Ms. Thomas' injuries because the injuries occurred when she
tried to go over the speed bump in the parking lot, a place where, Plaintiffs seem to agree, Fresh
Market had no duty of care to Brenda Thomas. "[C]ause in fact establishes that the plaintiffs'
injury would not have occurred 'but for' the defendant's conduct. . . ." West v. East Pioneer Oil
Co., 172 S.W.3d 545, 553 (Tenn. 2005) (citing Kilpatick v. Bryant, 868 S.W.2d 594, 598 (Tenn.
1993). Issues of causation are jury questions in the comparative fault analysis. Haynes v. Hamilton
Cnty, 883 S.W.2d 606, 612 (Tenn. 1994). When considering the evidence in the light most
favorable to Ms. Thomas, a reasonable jury could find that, but for the firewood on the sidewalk,
Ms. Thomas would not have tried to cross the speed bump on her mobility scooter; rather, she
would have entered Fresh Market safely via the sidewalk. Fresh Market is not entitled to summary
judgment based on its argument that it was not responsible for what happened to Ms. Thomas in
the parking lot.

c)

Stacked Firewood—The Proximate Cause of Plaintiff's Injuries

Finally, Fresh Market argues that the stacked firewood was not the proximate cause of Ms.
Thomas' injuries. Proximate cause focuses on whether the law will extend responsibility for the
defendant's conduct. West, 172 S.W.3d at 553 (citing Kilpatrick v. Bryant, 868 S.W.2d 594, 598
(Tenn.1993)). The Tennessee Supreme Court has a three-pronged test for proximate cause:
(1) the tortfeasor's conduct must have been a “substantial factor” in bringing about
the harm being complained of; and (2) there is no rule or policy that should relieve
the wrongdoer from liability because of the manner in which the negligence has
resulted in the harm; and (3) the harm giving rise to the action could have
reasonably been foreseen or anticipated by a person of ordinary intelligence and
prudence.
West, 172 S.W.3d at 553 (citing Haynes v. Hamilton County, 883 S.W.2d 606, 612 (Tenn. 1994)).
Moreover, "[t]here is no requirement that a cause, to be regarded as the proximate cause of an
injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial
factor in producing the end result.” West, 172 S.W.3d at 553 (quoting McClenahan v. Cooley, 806
S.W.2d 767, 775 (Tenn. 1991)).
Fresh Market focuses on the last prong, asserting for the reasons Fresh Market previously
articulated, that a person of ordinary intelligence and prudence could not have reasonably foreseen
Ms. Thomas' injuries. For the reasons this Court has already discussed, the Court concludes that
genuine issues of material fact exist as to whether Fresh Market’s actions were a substantial factor
in causing Ms. Thomas’ injuries.
4.

Negligence Claims Against DDR

The basis for Ms. Thomas' negligence claim against DDR centers on DDR's placement of
the speed bump across the travel lanes from the curb of the sidewalk to the base of a light pole
adjacent to the first parking space in the parking lot. [Doc. 1, Complaint ¶ 49]. Specifically, Ms.
Thomas alleges,

Defendant DDR breached their duty to provide an accessible entrance when it
blocked the parking lot of the shopping center to handicapped persons who were
attempting to enter Fresh Market from anywhere in the parking lot other than
directly in front of Fresh Market.
[Doc. 1, Complaint, ¶ 49]. According to Ms. Thomas, the speed bump was the obstacle blocking
her safe access into Fresh Market. [Id. ¶ ¶ 19-22, 40].
As previously indicated, travel lanes in the parking lot are designed for cars, not mobility
scooters. Speed bumps are placed across the travel lanes to protect pedestrians (or scooters) by
preventing cars from going too fast in the travel lanes. Automobile operators will try to “go
around” speed bumps if they are not placed completely across the roadway. Pedestrians, including
mobility-impaired shoppers, can avoid these speed bumps simply by taking a direct path across
the travel lanes from the parking space to the sidewalk or vice versa. Upon reaching the sidewalk,
shoppers should be able to safely access stores by moving in either direction on the sidewalk.
Considering the evidence in a light most favorable to Plaintiffs, the Court finds there is no evidence
to suggest that DDR breached its duty to provide a safe, accessible entrance to Fresh Market for
shoppers—whether pedestrians or mobility-impaired shoppers.
Finally, after reviewing Ms. Thomas' claims against DDR, the Court is satisfied that she
has not asserted any claim against DDR arising from Fresh Market's decision to stack firewood on
the sidewalk. While counsel does discuss that issue in the summary judgment briefing, the Court
declines to permit a claim that was not raised in the complaint to be asserted for the first time in
the summary judgment papers. Moreover, even if the Court were to consider the claim properly
raised, summary judgment in favor of DDR on this claim would still be appropriate. As DDR
correctly asserts in its brief [Doc. 71 at 2], there is no evidence in the record to indicate that DDR
knew or should have known that Fresh Market had obstructed the sidewalk with firewood on the

day when the incident occurred. Summary judgment as to the negligence claims against DDR is
appropriate.
5.

Loss of Consortium Claims

Gary Thomas, Brenda Thomas’ husband, asserts a claim for loss of consortium against
each Defendant. A "loss of consortium claim [of a spouse] is dependent upon the negligent injury
of the other spouse who has the primary tort cause of action." Tuggle v. Allright Parking Sys.,
Inc., 922 S.W.2d 105, 109 (Tenn. 1996). For the reasons set forth above, the Court will deny Fresh
Market's motion for summary judgment and will grant DDR's motion for summary judgment with
respect to Mr. Thomas' loss of consortium claims.
IV.

CONCLUSION
For the reasons stated in this memorandum opinion, the Court finds as follows:
1.

Defendant Fresh Market’s motion for summary judgment as to Ms. Thomas’
negligence per se claims against Fresh Market will be GRANTED.

2.

Defendant Fresh Market’s motion for summary judgment as to Ms. Thomas'
negligence claim and Mr. Thomas' loss of consortium claim against Fresh
Market will be DENIED. These claims remain for trial

3.

Defendant DDR’s motion for summary judgment as to Ms. Thomas’
negligence claim and negligence per se claim against DDR, as well as Mr.
Thomas’ loss of consortium claim against DDR will be GRANTED. All
claims against DDR will be DISMISSED.

ENTER.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE