White v. City of Gatlinburg (PLR2)
Filing
62
MEMORANDUM OPINION granting 32 MOTION for Summary Judgment by City of Gatlinburg. Signed by District Judge Pamela L Reeves on 6/1/16. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JOE WHITE, KATHY WHITE,
GINA HARPER and CHARLES HARPER
Plaintiffs,
v.
CITY OF GATLINBURG
Defendant.
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No. 3:14-CV-00505
MEMORANDUM OPINION
Plaintiffs, Joe and Kathy White (“Whites”) as well as Charles and Gina Harper
(“Harpers”), bring this action against the City of Gatlinburg (“Gatlinburg”) alleging disability
discrimination and numerous state law claims after a Gatlinburg trolley driver refused their
request to be returned to their vehicles.
Before the court is Gatlinburg’s motion for summary judgment [R. 32]. Gatlinburg
contends that it is entitled to judgment as a matter of law on all claims because the Whites and
Harpers have failed to produce evidence demonstrating a genuine issue of material fact for their
discrimination claim as well as their state law claims. Gatlinburg also asserts immunity for
several of the state law claims under the Tennessee Governmental Tort Liability Act.
The Whites and Harpers responded in opposition [R. 39]. The Whites and Harpers
contend that a jury should decide whether Gatlinburg discriminated against them because there
are issues of material fact regarding both their disabilities and state law claims.
I. STATEMENT OF FACTS
In August 2014, Joe and Kathy White, Charles and Gina Harper, and others traveled from
their home in Arkansas for a family vacation in Crossville, Tennessee. On August 6, 2014, they
decided to visit Gatlinburg, Tennessee. Driving in separate cars, the Whites and Harpers arrived
at the Gatlinburg Welcome Center trolley stop, where they searched for unoccupied handicap
parking spaces. Seeing no available spaces, the Whites and Harpers drove down the hill to the
Gatlinburg Welcome Center building where they parked and went inside. Once inside, the
Whites and Harpers approached the ticketing counter and spoke with Welcome Center attendants
about purchasing passes for the Gatlinburg trolley. The Whites and Harpers explained to the
attendants that there were no handicap parking spaces at the Welcome Center trolley stop and
they were forced to park down the hill at the Welcome Center building. Due to their parking
situation, Mrs. Gina Harper inquired whether they could be picked up at the Welcome Center
building rather than the dedicated trolley stop. The attendants responded that the trolley would
pick them up from the Welcome Center building and would drop them back off there once their
visit was complete. The Whites and Harpers then purchased their trolley passes.
About the same time as they were purchasing the tickets, Mr. Charles Harper went
outside the Welcome Center and hailed an incoming trolley to ask the driver if they could be
picked up at the Welcome Center building instead of the dedicated trolley stop. The trolley
driver agreed to pick them up after first obtaining passengers from the dedicated trolley stop.
Once the trolley driver loaded the other passengers, he returned to the Welcome Center building,
picked up the Whites and Harpers, and proceeded into downtown Gatlinburg.
After unloading from the trolley near the Ripley’s Aquarium, the Whites and Harpers
spent several hours shopping, eating, and walking around downtown Gatlinburg. Later that day,
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the Whites and Harpers returned to the Ripley’s Aquarium trolley stop and loaded on to
Gatlinburg Trolley No. 29 to return to their vehicles. The driver of Trolley No. 29, Mr. Clarence
Hatfield drove past the Welcome Center building and to the dedicated trolley stop as part of the
trolley’s fixed route.
Once the other passengers unloaded, Mr. White approached the driver, Mr. Hatfield, and
asked if he along with others in his party could be taken back down the hill to the Welcome
Center building where their vehicles were located. Mr. White explained that he and others in his
party were disabled and unable to walk down the hill. Even though Gatlinburg generally grants
such accommodations, Mr. Hatfield failed to contact his supervisor for permission to deviate
from the fixed route. Mr. Hatfield instead declined their request and mistakenly said that he
could only take “people in wheelchairs or electric carts” to the Welcome Center building. Mr.
White explained that the Welcome Center attendants assured them that they would be returned to
their vehicles, but Mr. Hatfield again declined. Mr. White then returned to his seat and Mr.
Harper approached Mr. Hatfield and asked that they be taken back to the Welcome Center
building because he along with Mrs. Harper were disabled. Mr. Hatfield, however, again
declined the request. Seeing that they were not going to be dropped-off at the Welcome Center
building, the Whites and Harpers disembarked the trolley at the trolley stop and walked down the
hill to their vehicles at the Welcome Center building.
While en route, Mr. White stumbled on the pavement and injured his back and neck. He
later sought medical attention in a Dickson, Tennessee emergency room on the way back to
Arkansas. Mr. White has been the owner and operator of Whites Lawn Services for twelve
years. He claims that he is now unable to work because he can no longer mow for his business
due to his neck and back injuries.
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In addition to Mr. White’s injuries, Mrs. White and Mrs. Harper claim that they were
injured from walking down the hill to the Welcome Center building. Mrs. White states that she
suffered injuries to her right leg and soreness in her right arm from gripping the rail on the way
down the hill. Mrs. Harper says that she suffered back spasms and a swollen left knee as a result
from walking back to their car. Mrs. Harper sought treatment for her back spasms at Crossville
Medical Clinic on August 7, 2014—one day after the alleged incident. Further, Mrs. Harper was
treated for her swollen knee at Velocity Care in Little Rock, Arkansas after returning home and
was referred to an orthopedist.
II. SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden
of establishing that no genuine issues of material fact exist. Celotex Corp. v. Cattrett, 477 U.S.
317, 330 n. 2 (1986); Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts
and inferences to be drawn therefrom must be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. Ltd v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Burchett v. Keifer, 301 F.3d 937, 942 (6th Cir. 2002). Courts may not resolve genuine
disputes of fact in favor of the movant. Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (vacating
lower court’s grant of summary judgment for “fail[ing to] adhere to the axiom that in ruling on a
motion for summary judgment, the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor”) (internal quotations and citations omitted).
Once the moving party presents evidence sufficient to support a motion under Rule 56,
the nonmoving party is not entitled to a trial merely on the basis of allegations. Celotex, 477
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U.S. at 317. To establish a genuine issue as to the existence of a particular element, the
nonmoving party must point to evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine
issue must also be material; that is, it must involve facts that might affect the outcome of the suit
under the governing law. Id.
The Court’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 question for the
factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth of the
matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft of a
genuine issue of fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Thus, “the inquiry performed is the threshold inquiry of determining whether there is a need for a
trial–whether, in other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
III. ANALYSIS
The Whites and Harpers argue that Gatlinburg violated the Americans with Disabilities
Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) by
denying their request to be driven back to their vehicles at the Welcome Center building.
Moreover, the Whites and Harpers also assert numerous state law claims, including: deceptive
practices under the Tennessee Consumer Protection Act; common law breach of contract;
detrimental reliance; negligence by a common carrier; premises liability; and negligent hiring,
supervision, and retention. The Court will examine each claim for relief in turn, beginning with
the claims under the ADA and Rehabilitation Act.
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A. Overview of ADA and Rehabilitation Act Analytical Framework
In its analysis, the Court will review the Whites and Harpers’ ADA and Rehabilitation
Act claims together. Both the ADA and the Rehabilitation Act prohibit discrimination against a
qualified individual with a disability. S.S. v. E. Ky. Univ., 532 F.3d 445, 452 (6th Cir. 2008).
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. Section 504 of the Rehabilitation Act likewise states that “[n]o otherwise
qualified individual with a disability in the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. §
794(a). The Sixth Circuit has held that because the purpose, scope, and governing standards of
both “acts are largely the same, cases construing one statute are instructive in construing the
other.” McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 460 (6th Cir. 1997).
See S.S. v. E. Ky. Univ., 532 F.3d 445, 453 (6th Cir. 2008) (citing Thompson v. Williamson Cty.,
219 F.3d 555, 557 n. 3 (6th Cir. 2000). The Court will thus analyze both claims together.
B. The Whites and Harpers Fail to Establish That They Are Disabled Under the ADA
and Rehabilitation Act
The Whites and Harpers contend that the City of Gatlinburg was required to make a
reasonable modification to its “policies, practices, and procedures” to accommodate their request
to be returned to their vehicles. To prove discrimination under either statute, plaintiffs must
show that: 1) they have a disability; 2) they are otherwise qualified for participation in the
relevant program; and 3) they are being excluded from participation in, being denied the benefits
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of, or being subjected to discrimination because of their disability. Anderson v. City of Blue Ash,
793 F.3d 338, 357 (6th Cir. 2015) (citing Tucker v. Tenn., 539 F.3d 526, 532 (6th Cir. 2008)).
To establish their first element, the Whites and Harpers must demonstrate that they have
a disability. The ADA and Rehabilitation Act define “disability” as: (1) “a physical or mental
impairment that substantially limits one or more major life activities of such individual,” (2) “a
record of such an impairment,” or (3) “being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1) (A)-(C); 42 U.S.C. § 705(20)(B). There is no bright-line rule to determine whether
someone is disabled as Congress intended that the existence of a disability be determined on a
case-by-case basis. Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184, 198 (2002). To
survive summary judgment, however, plaintiffs must come forward with medical evidence
supporting their disability. See Neely v. Benchmark Family Services, 2016 WL 364774, at *4
(Jan. 26, 2016). In fact, the Sixth Circuit recently affirmed a district court’s grant of summary
judgment where the plaintiff was not considered disabled under the ADA because he failed to
submit supporting medical evidence of an alleged impairment. Id. Likewise, in this case, the
Whites and Harpers assert that they all are disabled and have physical impairments which
substantially limit them in major life activities; yet, they fail to put forth any evidence that would
allow a rational trier of fact to conclude that they have a disability.
Conversely, the Whites and Harpers assert that the more relaxed standards under ADA
Amendments show that they have a disability. In 2008, Congress amended the ADA to broaden
the scope of what constitutes a disability.
See 42 U.S.C. § 12102(1)(A).
Although the
amendments eased the burden required for plaintiffs to establish a disability, a burden still
remains no less. In fact, Congress expressly retained the “substantially limits” modifier for “one
or more major life activities.” See 42 U.S.C. § 12102(1)(A). In this case, the Whites and Harpers
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failed to carry that burden because they rely on their own statements without any corroborating
medical evidence. Neely v. Benchmark Family Services, No. 15-3550, 2016 WL 364774, at *4
(Jan. 26, 2016). Viewing the record in a light most favorable to the Whites and Harpers, with the
exception of their own statements, there is no evidence in the record that shows the Whites and
Harpers are substantially limited in a major life activity.
Further, the Whites and Harpers’ own statements regarding their disabilities constitute
hearsay because they are offered for the truth of the matter asserted. “It is well established that a
court may not consider hearsay when deciding a summary judgment motion.” Tranter v. Orick,
460 F. App’x 513, 514 (6th Cir. 2012).
Accordingly, without any admissible evidence
establishing their disabilities, the Whites and Harpers’ claims for disability discrimination cannot
stand. Therefore, Gatlinburg is entitled to summary judgment on the discrimination claims.
C. Gatlinburg is Immune from the Unfair or Deceptive Practices Claim
Gatlinburg also seeks summary judgment on the Whites and Harpers’ claims of unfair
and deceptive practice under the Tennessee Consumer Protection Act. Gatlinburg argues that it
is immune from the Whites and Harpers’ claims pursuant to the Tennessee Governmental Tort
Liability Act (“GTLA”), which states that “all governmental entities shall be immune from suit
for any injury which may result from the activities of such governmental entities wherein such
governmental entities are engaged in the exercise and discharge of any of their functions,
governmental or proprietary.” Tenn. Code. Ann. § 29-20-201(a).
Specifically, the GTLA “removes immunity for ‘injury proximately caused by a negligent
act or omission of any employee within the scope of his employment . . .’” Johnson v. City of
Memphis, 617 F.3d 864, 872 (6th Cir. 2010) (quoting Tenn. Code Ann. § 29-20-205). Thus, the
only persons for whom Gatlinburg may be liable are those who are defined as employees under
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the GTLA. A person is considered an employee for purposes of removing immunity if a court
“specifically finds that all [five] of the [following] elements exist:”
(1) The government entity itself selected and engaged the person in question to
perform services;
(2) The government entity itself is liable for the payment of compensation for
the performance of such services and the person receives all of such person's
compensation directly from the payroll department of the governmental entity in
question;
(3) The person receives the same benefits as all other employees of the
governmental entity in question including retirement benefits and the eligibility
to participate in insurance programs;
(4) The person acts under the control and direction of the governmental entity
not only as to the result to be accomplished but as to the means and details by
which the result is accomplished; and
(5) The person is entitled to the same job protection system and rules, such as
civil service or grievance procedures, as are other persons employed by the
governmental entity in question.
Tenn. Code Ann. § 29–20–107(a). Tennessee requires “strict compliance” with each element for
purposes of removing immunity. Baker v. Snedegar, 2013 WL 5568424, at *5 (Tenn. Ct. App.
Oct. 8, 2013). Based on the record in this case, Gatlinburg cannot be liable for the acts of the
Welcome Center employees because they are not City employees.
The GTLA removes
immunity only for the acts of governmental employees; nowhere does the act remove immunity
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for nonemployees. See Tenn. Code Ann. § 29–20–107(a). The Court therefore finds that
Gatlinburg remains immune from the unfair or deceptive practices claim.
Even though the Welcome Center employees are not employed by Gatlinburg, the Whites
and Harpers claim that the Welcome Center employees had apparent authority to act on
Gatlinburg’s behalf. In Tennessee, plaintiffs must prove the following elements to establish
apparent authority: (1) the principal knew or negligently acquiesced in the agent's exercise of
authority; (2) the third person had knowledge of the facts and a good faith belief that the
apparent agent possessed such authority; and (3) the third person relied on this apparent authority
to his or her detriment. Boren ex rel. Boren v, Weeks, 251 S.W.3d 426, 432–33 (Tenn. 2008)
(quoting White v. Methodist Hosp. S., 844 S.W.2d 642, 646 (Tenn. Ct. App. 1992)). Notably,
apparent authority is established through acts of the principal rather than those of the agent. Id. at
433. Accordingly, where the principal, by his own acts or conduct, has clothed the agent with the
appearance of authority to act on his behalf, he is estopped from denying liability for the agent’s
acts within that authority. Milliken Grp., Inc. v. Hays Nissan, Inc., 86 S.W.3d 564, 569 (Tenn.
Ct. App. 2001).
The Whites and Harpers claim that the Welcome Center employees had apparent
authority to bind Gatlinburg to alter its trolley drop-off location. The Whites and Harpers rely on
the Welcome Center employees’ statements that it would be “no problem” for the trolley driver
to pick them up and drop them off at the Welcome Center building, but fail to show any evidence
or conduct by Gatlinburg to create an agency relationship. It is clear from the undisputed
material facts, however, that Gatlinburg did not clothe the Welcome Center employees with
apparent authority. There is no evidence in the record to establish that Gatlinburg had the right
to control or exercised actual control over the Welcome Center employees’ conduct. Therefore,
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even viewing these facts in a light most favorable to the Whites and Harpers, Gatlinburg remains
immune from the unfair or deceptive practices claim and is entitled to summary judgment.
D. No Contract Ever Existed Between the Parties
Gatlinburg is also entitled to summary judgment for the Whites and Harpers’ breach of
contract claim. After reviewing the undisputed facts and applicable authority, no contract ever
existed between Gatlinburg and either the Whites or the Harpers. In Tennessee, “a contract can
be express, implied, written, or oral, ‘but an enforceable contract must result from a meeting of
the minds in mutual assent to terms, must be based upon sufficient consideration, must be free
from fraud or undue influence, not against public policy and must be sufficiently definite to be
enforced.’” Thompson v. Hensley, 136 S.W.3d 925, 929-30 (Tenn. Ct. App. 2003) (quoting
Klosterman Development Corp. v. Outlaw Aircraft Sales, Inc., 102 S.W.3d 621, 635 (Tenn. Ct.
App. 2002)).
In this case, no express contract ever existed between the parties. The Whites and
Harpers claim that when they purchased their trolley passes, they entered into a contract with
Gatlinburg to transport them back to their vehicles; however, no written language on the actual
tickets suggest that passengers may dictate that the trolley deviate from its fixed route. Thus, no
express contract existed between Gatlinburg and the Whites and Harpers.
In addition, no implied contract ever existed between the parties. Tennessee recognizes
two types of implied contracts: contracts implied in fact and contracts implied in law. Thompson
v. Hensley, 136 S.W.3d 925, 930 (Tenn. Ct. App. 2003) (citing Angus v. City of Jackson, 968
S.W.2d 804, 808 (Tenn. Ct. App. 1997). A contract implied in fact is similar to an express
contract as it is “one that ‘arises under circumstances which show mutual intent or assent to
contract.’” Givens v. Mullikin, 75 S.W.3d 383, 407 (Tenn. 2002) (quoting Angus, 968 S.W.2d at
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808). Unlike an express contract where the parties assent to the terms through their words,
writings, or some other form of expression, “the conduct of the parties and the surrounding
circumstances show mutual assent to the [contract’s] terms . . . .” Thompson, 136 S.W.3d at 930.
In this case, nothing in the record shows that an implied contract ever existed between
Gatlinburg and the Whites and Harpers.
The trolley passes were not sold by Gatlinburg
employees. Moreover, while Mr. Harper secured a ride from the Welcome Center building to
downtown Gatlinburg, there is no evidence that the Whites and Harpers received any assurance
from a Gatlinburg employee that the trolley would deviate from its fixed route and drop them
back off at their vehicles. Therefore, no implied contract existed between the parties.
Since no express or implied contract ever existed between the parties, Gatlinburg is
therefore entitled to summary judgment for the breach of contract claim.
E. The Whites and Harpers Cannot Show Detrimental Reliance
The Whites and Harpers claim that Gatlinburg is liable to them under the theory of
detrimental reliance—which is also called the doctrine of promissory estoppel. Calabro v.
Calabro, 15 S.W.3d 873, 879 (Tenn. Ct. App. 1999). To prevail under promissory estoppel,
plaintiffs must show that “(1) a promise was made; (2) the promise was unambiguous and not
unenforceably vague; and (3) they reasonably relied upon the promise to their detriment.” See
Rice v. NN, Inc. Ball & Roller Div., 210 S.W.3d 536, 544 (Tenn. Ct. App. 2006); Calabro, 15
S.W.3d at 879; Amacher v. Brown–Forman Corp., 826 S.W.2d 480, 482 (Tenn. Ct. App. 1991);
Wilson v. Price, 195 S.W.3d 661, 670 (Tenn. Ct. App. 2005). Granting promissory estoppel is
rare in Tennessee because courts limit its application to exceptional cases. Barnes & Robinson
Co., Inc. v. OneSource Facility Services, Inc., 195 S.W.3d 637, 645 (Tenn. Ct. App. 2006). The
Whites and Harpers claim that they were promised by the Welcome Center employees—who are
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not City employees—to be returned to their vehicles at the conclusion of their visit. However,
the Whites and Harpers cannot show that they detrimentally relied on any sort of promise made
by Gatlinburg employees at the time they purchased their trolley passes. Further, the Whites and
Harpers cannot show that they detrimentally relied on a promise by the trolley driver upon
boarding Trolley No. 29 because they only requested that the trolley deviate from its fixed route
upon their return to the Welcome Center trolley stop—which had already passed the Welcome
Center building. Because the Whites and Harpers cannot show that they relied on any promise
from Gatlinburg employees, Gatlinburg is thus entitled to summary judgment for the detrimental
reliance claim.
F. Gatlinburg Did Not Violate its Duty as a Common Carrier
The Whites and Harpers claim that the City of Gatlinburg violated its duty as a common
carrier by failing to drop the parties off at their vehicle. In Tennessee, plaintiffs must prove the
following for a negligence claim: (1) defendant had a duty of care to the plaintiffs, (2) defendant
breached that duty of care, (3) defendant's actions were the cause in fact of the plaintiffs’
injuries, (4) defendant's actions were the proximate or legal cause of the plaintiffs’ injuries, and
(5) plaintiffs suffered damages as a result of the defendant's actions. Rogers v. Louisville Land
Co., 367 S.W.3d 196, 206 (Tenn. 2012). Common carriers, however, owe a heightened duty of
care that requires “the utmost diligence, skill, and foresight to provide for their passengers’
safety.” White v. Metro. Gov’t of Nashville, 860 S.W.2d 49, 51, 52 (Tenn. Ct. App. 1993). Even
though they owe a heightened duty, common carriers are not insurers of their passengers’ safety.
Id. (citing Schindler v. S. Coach Lines, Inc., 217 S.W.2d 755, 779 (Tenn. 1949)). Passengers
must observe their surrounding conditions and “protect themselves from risk and hazards that
ordinarily accompany the conveyance they are using.” Id. Here, Mrs. White and Mr. Harper
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cannot prove the essential elements for negligence because they were not injured; neither
received any form of medical treatment after walking down the hill to the Welcome Center
building.
Further, the Whites and Harpers’ claims fail as a matter of law because Gatlinburg is not
obligated to protect them until they reach their final destination. Tennessee does not impose a
duty on common carriers to ensure that adult passengers arrive safely at their destination after
exiting a vehicle. The only context where a common carrier’s duty goes beyond dropping off
passengers in a safe place is the relationship between school bus drivers and underage children.
In Bowers by Bowers v. City of Chattanooga, the Tennessee Supreme Court recognized this
special relationship by stating that “the zone or area of legal responsibility for care of immature
school children extends beyond the mere landing of the child from the bus in a place safe in
itself, and includes the known pathway which the children must immediately pursue.” 826
S.W.2d 427, 432 (Tenn. 1992). The court further noted that “[i]t has been suggested that
requiring a bus driver to know precisely where all children live would impose an enormous
responsibility. However, all that is required is that the driver know which direction children
normally go when they get off the bus.” Id.
Bowers provides some guidance to this case because the Whites and Harpers are
essentially asserting that the common carrier duty owed to them goes beyond what is afforded to
underage school children. Id. Specifically, the Whites and Harpers assert that Gatlinburg is
liable for injuries they sustained while walking back to their vehicles: Mr. White claims that he
stumbled on the sidewalk and was seriously injured and Mrs. Harper states that she suffered back
spasms as well as a swollen left knee from the hill’s incline. Under Bowers, school bus drivers
can satisfy their duty by knowing which direction a child normally goes when they get off the
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bus; however, the Whites and Harpers assert that Gatlinburg is liable for their injuries sustained
while walking back to their vehicle—which is far removed from the trolley driver’s view and
control. The trolley driver’s duty to the Whites and Harpers ended when they arrived at the
Welcome Center trolley stop and safely exited the trolley without injury; it was then up to the
White and Harpers to “exercise[] ordinary care for their own safety” in returning to their
vehicles. See White v. Metro. Gov’t of Nashville, 860 S.W.2d 49, 52 (Tenn. Ct. App. 1993). It is
clear from Bowers as well as other relevant case law that Tennessee does not extend a common
carrier’s duty to ensure that its adult passengers arrive at their final destination upon safely
exiting a bus or trolley; therefore, Gatlinburg is entitled to summary judgment
G. The Claims of Premises Liability, Negligent Hiring, and that Trolley No. 29 was Not
Readily Accessible are Waived Under Local Rule 7.2
Based on their Response to Defendant’s Motion, the White and Harpers abandoned their
claims for premises liability, negligent hiring, and that Trolley No. 29 was inaccessible. This
Court’s local rules provide that failure to respond to a motion is deemed to be a waiver of any
opposition to the relief sought. E.D. Tenn. LR 7.2. This waiver occurs both where a party
expressly concedes a point and where a party fails to respond to arguments made by its
opponent. Taylor v. Unumprovident Corp., 2005 WL 3448052 at *2 (E.D. Tenn. Dec. 14, 2005)
(citing Guster v. Hamilton Cnty. Dept. of Ed., 2004 WL 1854181 at *7 (E.D. Tenn. Mar. 2,
2004) (holding an argument not addressed in the responding party’s brief is deemed waived).
Since the Whites and Harpers did not respond to Gatlinburg’s specific arguments regarding
premises liability, negligent hiring, and Trolley No. 29’s accessibility under 42 U.S.C. §
12142(a), they have waived any opposition to Gatlinburg’s motion and those claims are
dismissed.
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IV. CONCLUSION
For the foregoing reasons, the City of Gatlinburg’s motion for summary judgment [R. 32]
is GRANTED and this matter is DISMISSED in its entirety.
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UNITED STATES DISTRICT
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UNITED STATES DISTRICT JUDGE
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