Elizabeth Burks v. The Kroger Company

Citation: Not availableDocket: M2008-02664-COA-R3-CV

Court: Court of Appeals of Tennessee; November 22, 2009; Tennessee; State Appellate Court

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A negligence lawsuit was filed by Elizabeth Burks against The Kroger Company and two roofing entities, Roof Management, Inc. and Village Roofing Company, Inc., following a slip and fall incident at a Kroger store in Clarksville, Tennessee, on August 2, 2005. Burks slipped on water pooled from roof leaks after a rainstorm and sustained serious injuries, including a broken hip requiring multiple surgeries. The defendants denied liability, arguing that Roof Management and Village Roofing owed no duty of care to Burks and did not breach any duty. The trial court granted summary judgment in favor of the roofing companies, ruling they were not liable for her injuries. However, the Court of Appeals found genuine issues of material fact regarding the duty of care and proximate cause, leading to the reversal of the summary judgment and remanding the case for further proceedings. Roof Management had been providing roofing consulting and inspection services to Kroger since 2002.

Kroger authorized Roof Management to broker agreements with roofing contractors to address store roofing issues. When notified of a problem via a "Leak Repair Notice," Roof Management would inspect the roof or enlist a nearby contractor to inspect and report findings. Village Roofing, an approved contractor for Kroger in Clarksville, followed an unwritten protocol to address repairs after receiving such notices. Following a severe winter storm on December 29, 2004, Village Roofing found the roof covered in ice and could not perform repairs until the ice melted. Upon returning, they discovered a 70-foot split and were authorized to patch it. However, leaks persisted, prompting further repairs on January 4 and January 18, 2005.

On February 1, 2005, John McGraw from Roof Management conducted a Leak Investigation, identifying significant splits, including one 150 feet long. He determined the roof's integrity was compromised due to the prior ice and recommended a complete roof replacement in 2005. Despite this recommendation, Kroger's engineering department indicated a lack of funds for the replacement and advised continuing repairs. Following this, numerous additional leak reports were documented, with Leak Repair Notices sent to Roof Management. The last notification before Ms. Burks' fall was on July 12, 2005, when Village Roofing made repairs and reiterated the need for extensive repairs in their July 14 invoice, received by Roof Management on July 18.

Village Roofing did not receive a response from Roof Management or Kroger regarding its repair recommendations and believed it lacked authorization to perform extensive repairs prior to Ms. Burks’ fall on August 2, 2005. Consequently, the recommended repairs made on July 14, 2005, were not executed. The lawsuit was initiated on July 21, 2006. Both Roof Management and Village Roofing filed motions for summary judgment, which were granted by the trial court. It determined there were no genuine issues of material fact, concluded that neither Roof Management nor Village Roofing owed a legal duty to Ms. Burks, and found that their actions were not the proximate cause of her injuries. Ms. Burks and Kroger filed notices of appeal, contesting the summary judgments granted to both defendants, with Kroger appealing only the judgment against Roof Management. The appellate court reviewed the grant of summary judgment under Tennessee Rule of Civil Procedure 56, which allows summary judgment when there is no genuine issue of material fact and a judgment can be rendered as a matter of law. The moving party must demonstrate the absence of genuine disputes and negate essential elements of the opposing party's claims or show the inability to prove such elements at trial. Summary judgments are not presumed correct on appeal, and the reviewing court considers evidence in favor of the nonmoving party while assessing the existence of factual disputes.

A motion for summary judgment must demonstrate the absence of genuine issues of material fact, establishing that the moving party is entitled to judgment as a matter of law. If the motion is properly supported, the burden shifts to the nonmoving party to prove the essential elements of their claim. Conversely, if the motion lacks proper support, the nonmoving party is relieved of this burden, and the motion fails. The moving party can either negate an essential element of the claim or show that the nonmoving party cannot prove such an element at trial, requiring more than mere assertions of lack of evidence. The moving party must produce evidence that disproves an essential claim element or refer to previously submitted evidence.

To substantiate a negligence claim, the plaintiff must establish five essential elements, starting with the defendant's duty of care and a breach of that duty. The burden lies with the plaintiff, in this case, Ms. Burks, to prove these elements. If Village Roofing and Roof Management can disprove the existence of a duty owed to Ms. Burks, they are entitled to summary judgment. The duty of care is defined as the legal obligation to conform to a reasonable standard of care to prevent unreasonable harm. Whether a duty exists is a legal question determined by the court, although it may depend on certain factual issues.

Ms. Burks claims that Roof Management and Village Roofing owe her a duty of care due to their business relationship with Kroger and her status as a customer injured while shopping there. While Kroger is not an insurer of customer safety, it is required to exercise due care, with liability in premises cases arising from superior knowledge of conditions on the property. For a plaintiff to establish negligence, they must demonstrate that the dangerous condition was caused by the owner or that the owner had actual or constructive notice of it prior to the incident. Constructive notice can be shown if a condition existed long enough that the owner should have noticed it. Though the issue of Kroger's notice is not currently before the court, evidence indicates that Kroger's manager reported repeated leaks, with up to forty occurring after rain.

Kroger's duty to its customers does not automatically extend to Roof Management or Village Roofing. However, both may have assumed responsibility for protecting Kroger’s customers by agreeing to provide necessary services at the store. Ms. Burks argues that their knowledge of ongoing roof issues creates a duty to her under the Restatement (Second) of Torts, section 324A, which holds that service providers may be liable for harm to third parties if they fail to exercise reasonable care in fulfilling their responsibilities. This duty arises if their actions increase the risk of harm, if they undertake a duty owed by another party, or if the third party relies on their undertaking.

Ms. Burks alleges that Village Roofing assumed the responsibility for providing necessary services to Kroger that would protect its customers, including herself, and that her injuries were a direct result of Village Roofing's negligent performance of these services. It is established that Village Roofing agreed to inspect and repair the roof of Kroger's Madison Street store multiple times to address ongoing leaks, with the intent of ensuring customer safety. Evidence indicates that it was foreseeable that customers could be injured if Village Roofing failed to properly inspect or repair the roof.

However, the record does not support the assertion that Village Roofing had an ongoing obligation to re-inspect or make further repairs beyond those initially agreed upon. While Village Roofing was authorized to conduct certain repairs for existing leaks, it did not have the authority to undertake extensive repairs necessary to resolve recurring issues comprehensively. Disputes exist regarding the extent of repairs Village Roofing was authorized to make, including whether it was tasked with addressing the specific leak that led to Ms. Burks' fall.

Village Roofing maintains that it only assumed a limited duty to perform specific inspections and repairs and was not obligated to remedy all deficiencies in Kroger’s roof. In contrast, Ms. Burks argues that Village Roofing took on Kroger’s duty to ensure customer safety by addressing known hazardous conditions, including the leak that caused her injury. The determination of whether Village Roofing owed a duty of care to Ms. Burks hinges on resolving these factual disputes. Consequently, summary judgment regarding Village Roofing's duty is inappropriate. Additionally, the trial court concluded that even if Village Roofing had breached a duty, there was no legal causation linking its actions to Ms. Burks' injuries.

The trial court determined that Kroger held sole responsibility for warning customers about leaks or puddles on its premises. Ms. Burks provided evidence of injuries stemming from Village Roofing’s negligent repairs, while Village Roofing denied negligence and claimed Ms. Burks was not injured due to its actions. The determination of whether Village Roofing's negligence caused or contributed to Ms. Burks' injuries is generally for the trier of fact unless reasonable persons can only arrive at one conclusion. Evidence showed that Ms. Burks fell in an area where Village Roofing had inspected or attempted repairs six times prior to the incident, indicating a genuine dispute regarding Village Roofing's negligence and its connection to Ms. Burks' injuries, thus making summary judgment inappropriate.

Additionally, Ms. Burks and Kroger argued that the trial court wrongly granted summary judgment to Roof Management regarding duty and causation. They contended that Roof Management assumed a duty to provide necessary services for the safety of Kroger's customers and that its negligence led to Ms. Burks' injuries. Roof Management claimed it had no direct involvement in the roof repairs and lacked oversight or control over Village Roofing's work. However, Ms. Burks and Kroger argued that Roof Management owed a duty of care akin to that of Village Roofing under section 324 of the Restatement (Second) of Torts. It was established that Roof Management served as Kroger's roofing consultant and facilitated roof repairs, which was essential for maintaining a safe environment for customers. The review of facts must favor Ms. Burks and Kroger; if material facts are disputed, summary judgment is not warranted. Roof Management's role was critical as it was responsible for advising Kroger on preventing or addressing hazards from roof leaks.

Determining whether Roof Management owed a duty to protect Ms. Burks, a Kroger customer, involves assessing the foreseeability of her injuries stemming from unsafe roof conditions. The court cites various precedents, noting that a foreseeable risk exists if a reasonable person could predict its occurrence or was aware of the potential danger. The evidence suggests that Roof Management should have anticipated risks to Kroger customers if it failed to properly advise or repair the roof. The trial court's conclusion that Roof Management did not owe a duty to Ms. Burks was inappropriate, as material facts regarding their duty and actions remain unresolved.

Additionally, the trial court's ruling that Roof Management's actions were not the proximate cause of Ms. Burks' injuries was also contested. Questions regarding duty breach and proximate cause are typically for the fact-finder, unless the facts lead to an unequivocal conclusion. The record shows Roof Management was aware of the poor roof condition and had recommended a replacement. However, it is unclear if they communicated the urgency to Kroger. Despite facilitating some repairs, Roof Management did not act on a recommendation for extensive repairs, merely forwarding an invoice to Kroger.

The judgment granting summary judgment to both Village Roofing and Roof Management is reversed, with the case remanded for further proceedings. Costs of the appeal are assigned to Village Roofing and Roof Management. Moreover, Roof Management argues that Kroger’s failure to follow recommendations may serve as a superseding cause, but this issue is also a question for the jury.