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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
JANUARY 23, 2001 Session SANDRA ALLMAN v. HUT'S, INC.
Direct Appeal from the Circuit Court for Gibson County No. 7525; The Honorable Mark Agee, Judge

No. W2000-01829-COA-R3-CV - Filed May 16, 2001

This appeal arises from the alleged fall of the Appellant outside the Appellee gas station and convenience store. The Appellant brought a complaint against the Appellee in the Circuit Court of Gibson County, alleging that the Appellee negligently maintained its premises which was a proximate cause of the Appellant's injuries. The Appellee filed a motion for summary judgment, alleging that the Appellant was unable to prove that the Appellee owed a duty to the Appellant or breached a duty. The trial court granted the Appellee's motion for summary judgment. The Appellant appeals the grant of summary judgment in favor of the Appellee by the Circuit Court of Gibson County. For the reasons stated herein, we reverse the trial court's decision. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY KIRBY LILLARD, J., joined. Jason G. Whitworth, Covington, for Appellant Deana C. Seymour, Michael L. Mansfield, Jackson, for Appellee OPINION I. Facts and Procedural History Victoria and Walter Gray ("the Grays") are the owners of the Appellee gas station and convenience store, Hut's, Inc. ("Hut's"), located in Rutherford, Tennessee. On July 2, 1997, the Appellant, Sandra Allman ("Ms. Allman") was a patron at Hut's with two traveling companions, Jack Blair ("Mr. Blair") and Linda Battle ("Ms. Battle"). Ms. Allman claims that she caught her foot on a descending concrete curb outside Hut's and fell which resulted in injuries to her right leg, hip, back, and head.

On December 21, 1998, Ms. Allman filed a complaint against Hut's for compensatory damages as a result of personal injuries and for other special damages. Ms. Allman alleged that Hut's negligently maintained its premises which was a proximate cause of her injuries. Depositions of Ms. Allman, Mr. Blair, Ms. Battle, and the Grays were taken on January 20, 1999. Ms. Allman testified by deposition that she recalled traveling on July 2, 1997, from Union City to Jackson with Ms. Battle and Mr. Blair and eating at Ryan's restaurant in Jackson. Ms. Allman stated that she had no memory of any events that transpired after leaving Ryan's restaurant. Ms. Allman did not recall the alleged fall at Hut's. Ms. Allman testified that her next recollection was waking up at her home the evening of July 2, 1997, or the early morning of July 3, 1997. Mr. Blair testified by deposition that he was present at the scene of the alleged fall. Mr. Blair testified that Ms. Allman was standing outside his car window at Hut's. Mr. Blair stated that he then moved his car and that the next time he saw Ms. Allman she was lying on the ground. Mr. Blair testified that he did not see Ms. Allman fall nor did he know what caused her to fall. Likewise, Ms. Battle testified by deposition that she was present at the scene of the alleged fall. Ms. Battle stated that she did not see Ms. Allman fall but that she saw Ms. Allman inside Hut's after the alleged fall. The Grays both testified by deposition that Hut's was constructed during late 1989 and early 1990 in accordance with an architect's designs and passed all state inspections. The parking lot and sidewalks had not been altered since that time. The Grays both admitted that there were no signs or paint indicating the step up to the curb; however, they stated that it was obvious there was a curb there. Mr. Gray testified that the curb was raised three inches above the lower surface. The Grays both testified that they inspect the premises for defects or dangerous conditions once or twice a week in order to repair such conditions. Mrs. Gray testified that she was aware of only one other incident involving a customer tripping outside Hut's in the nine years that Hut's had been in operation. On May 10, 1999, Hut's filed a motion for summary judgment based on the fact that Ms. Allman could provide no evidence concerning the causation of her alleged fall. Ms. Allman then filed an affidavit in which she stated that following her deposition, she had recalled the events of July 2, 1997 more clearly. Ms. Allman stated that she fell by catching her foot on a small curb located at Hut's. In Ms. Allman's supplemental deposition, Ms. Allman identified the area of Hut's sidewalk on which she allegedly tripped more specifically as being a point in front of Hut's where the sidewalk slopes down to ground level, similar to a handicapped ramp. Ms. Allman stated that she stepped up onto a raised, concrete sidewalk, or island, extending perpendicular to the front of Hut's. Ms. Allman stated that she then stepped down off the island, took two or three steps towards the front of Hut's, and caught her right foot on a small curb. The only explanation Ms. Allman made for her failure to see the sidewalk was that "it kind of like fades. See, it kind of like fades into it. I don't know what the difference is, but it does not

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