                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    August 22, 2002 Session


         LASSIE FRAZIER, ET AL. v. BROCK'S OPEN AIR MARKET

                      Appeal from the Circuit Court for Cocke County
                    Nos. 26,443-II & 26,547-II  Richard R. Vance, Judge

                                 FILED SEPTEMBER 17, 2002

                                  No. E2002-00203-COA-R3-CV



Clifford Frazier and Azeline Kittrell were sitting on a bench located in front of Brock’s Open Air
Market. Catherine Ottinger (“Ottinger”), who already had consumed six beers, was at the store to
purchase a salad and more beer. As Ottinger was leaving, her car, for whatever reason, accelerated
rapidly while in reverse and made a U-turn at a high rate of speed. While in reverse, Ottinger drove
onto a public road and then came back onto the store’s premises, jumped a concrete curb and hit
Clifford Frazier and Azeline Kittrell, who later died from their injuries. Plaintiffs sued Brock’s Open
Air Market asserting, as relevant to this appeal, premises liability. The Trial Court granted summary
judgment to Brock’s Open Air Market on the basis that the accident in question was not reasonably
foreseeable. We affirm.


                    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                          Circuit Court Affirmed; Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.

P. Richard Talley and Steven Douglas Drinnon, Dandridge, Tennessee, for the Appellants Lassie
Frazier, surviving spouse of Clifford Frazier, deceased, for her benefit and the benefit of sons Arthur
Frazier, Elmer Frazier, David Frazier, daughters Edna Valentine, Faye Crum, Ada Woody, Gladys
Boles and Diana Miller, and Basil Stanton Kittrell, individually and as personal representative of the
estate of Azeline Kittrell.

Jeffrey M. Ward, Greeneville, Tennessee, for the Appellee Brock’s Open Air Market.
                                              OPINION

                                             Background

                 These consolidated appeals arise from the tragic and somewhat bizarre deaths of
Clifford Frazier and Azeline Kittrell on July 15, 1999. At approximately 10:00 a.m., Catherine
Ottinger bought six beers at Brock’s Open Air Market (“Defendant” or “Market”). After consuming
these six beers, Ottinger returned to the Market around 3:00 p.m. and bought a salad and six more
beers. Ottinger parked in front of the Market where there were several parking spaces. In front of
each parking space was a concrete curb to prevent cars from pulling too close to the Market. A
sidewalk was between the Market and the concrete curbs. When Ottinger was in the driver’s seat
of her car, she was facing the Market. Looking at the Market from her car, the doors in and out of
the Market were to her left. To her right and on the sidewalk was an ice machine with a guardrail
in front of it. To the right of the ice machine and guardrail was a bench. There was no guardrail in
front of the bench.

                After purchasing the salad and six pack of beer during her second trip to the Market,
Ottinger got into her car and placed it in reverse. According to eyewitnesses, Ottinger backed out
at a high rate of speed and proceeded to make a U-turn while in reverse. Ottinger’s vehicle
proceeded out onto the road, jumped over one of the concrete curbs, and then went up on the
sidewalk of the Market. Ottinger’s vehicle went onto the sidewalk from the side. Ottinger struck
the bench where Clifford Frazier and Azeline Kittrell were sitting and pinned them against the ice
machine. Clifford Frazier and Azeline Kittrell were taken to the hospital, but both died from their
injuries. Ottinger, who was 82 years old at the time of the accident, was taken to the hospital and
later released. While at the hospital, a blood test was administered to Ottinger and her blood alcohol
level was .128.

                Separate lawsuits were filed by Lassie Frazier (“Frazier”) and Basil Stanton Kittrell
(“Kittrell”) (collectively referred to as “Plaintiffs”), the personal representatives of Clifford Frazier
and Azeline Kittrell. Although several causes of action were asserted by Plaintiffs, as pertinent to
this appeal, Plaintiffs claim a defective, unsafe, and dangerous condition existed on Defendant’s
premises which proximately caused the deaths of Clifford Frazier and Azeline Kittrell. Plaintiffs
also claim Defendants knew or should have known of the defective, unsafe, and dangerous condition.

                Frazier filed suit on May 15, 2000, and Kittrell filed suit on July 11, 2000. Along
with the complaints, Frazier and Kittrell served interrogatories, requests for production of
documents, and requests for admissions. Defendant timely filed answers to both complaints, denying
the pertinent allegations contained therein. Defendant also timely filed responses to the requests for
admissions, but apparently never responded to the interrogatories or requests for production of
documents filed by either Plaintiff. The Frazier lawsuit was set for trial on February 1, 2001, but was
continued on January 24, 2001, upon agreement of the parties after Frazier filed a motion indicating
discovery had not been completed. In February 2001, Plaintiffs were served with interrogatories and
requests for production of documents filed by Defendant.


                                                  -2-
                 On April 5, 2001, Defendant filed three affidavits in the Frazier lawsuit, including
the affidavit of Ms. Moore (“Moore”), Defendant’s owner and manager. Moore stated the bench in
front of the Market had been there the entire time she owner the Market. Moore denied selling any
beer to Ottinger on her first visit to the Market that fateful day and denied Ottinger was visibly
intoxicated. Moore went on to state she heard screeching of tires and a loud impact and went outside
to see what had happened. According to Moore:

                        When I arrived outside, I saw a vehicle driven by Catherine
               Ottinger located at the left front corner of the store. The vehicle had
               somehow been backed into the left side of the store into the area
               where the bench was located and the rear of the vehicle was wedged
               in between the guardrail and the wall of the store.… [T]he back
               wheels of the vehicle were still spinning. Mr. Frazier and Ms. Kittrell
               were pinned against the ice machine.… Prior to the time of this
               accident, and during all of the time that I have been involved with the
               market, there has never been an accident of this nature. Additionally,
               to the best of my knowledge, there has never been an accident causing
               injury to any person sitting on the bench in front of the market prior
               to this accident.

                 Defendant also filed the affidavit of Michael Messer (“Messer”), who was an
eyewitness to the accident. In his affidavit, Messer stated Ottinger backed out of the parking place
at “full throttle,” made a U-turn up the left side of the Market and went over the curb. According
to Messer, Ottinger’s vehicle was wedged between the Market and the guardrail, destroying the
guardrail and an awning in front of the Market. The vehicle continued to run at full throttle until
someone opened the driver’s door and turned the vehicle off.

               Patricia Holt was parked next to Ottinger’s vehicle. Holt claims in her affidavit that
Ottinger “revved” her car engine and was running at “full throttle” when she backed out of the
parking space, striking Holt’s vehicle as she did so. Holt stated Ottinger “continued to back out onto
East Broadway Street and then onto Lincoln Avenue, which is the road located on the left side of
Brock’s.… Ms. Ottinger continued to back in a circle when her vehicle ran into the left front of the
store where Mr. Frazier was sitting on the bench.”

                On May 14, 2001, Defendant filed motions for summary judgment in both lawsuits,
relying on the three affidavits filed the previous month. In the motions, Defendant claimed, among
other things, that it did not have notice of the alleged dangerous or defective condition and the
injuries suffered by Plaintiffs were not foreseeable, and, therefore, Defendant owed no duty to
Plaintiffs. The two lawsuits then were consolidated.

                On June 1, 2001, Plaintiffs filed a notice of deposition for the deposition of Ottinger
to be taken on June 21, 2001. Ottinger was deposed on that date. In her deposition, Ottinger stated
she did buy a six pack of beer from Defendant on the morning of July 15, 1999. She drank all six


                                                 -3-
beers and then returned to the Market about 3:00 p.m, at which time she purchased a salad and six
more beers. Ottinger recalls getting into her vehicle with the salad and beer and “[t]he car jumped.
When I started it, it jumped and that’s all I remember.”

              On July 10, 2001, Defendant filed a motion to compel discovery because Plaintiff had
not responded to the interrogatories and requests for production of documents filed in February.
Frazier responded to this discovery on July 23, 2001. Defendant then withdrew the motion to
compel.

               In response to Defendant’s motion for summary judgment, Plaintiffs filed the affidavit
of J. Harold Deatherage (“Deatherage”), a civil engineer. According to Deatherage:

                        I have seen the premises known as Brock’s Open Air Market.
               On July 15, 1999, the bench which Brock’s provided for customers
               at the front of the store constituted a dangerous condition. A bench
               located immediately adjacent to parking for customers poses an
               extreme hazard for persons sitting on the bench with vehicles going
               and coming. Furthermore, Brock’s provided insufficient barricades
               to protect customers sitting on the bench from vehicles.

In opposing the motion for summary judgment, Plaintiffs relied on the affidavit of Deatherage, the
deposition of Ottinger, as well as the affidavits filed by Defendant.

                The motion for summary judgment was heard on August 24, 2001. At the hearing,
Defendant’s counsel conceded Deatherage’s affidavit created a genuine issue of material fact as to
whether or not the bench was a potentially dangerous condition. Nevertheless, Defendant claimed
summary judgment still was appropriate because Defendant had no notice of the defective condition
and because the accident in question was not foreseeable. At the hearing, Plaintiffs’ counsel orally
informed the Trial Court that Plaintiffs needed additional discovery. This was the first time
Plaintiffs’ need for additional discovery was brought to the attention of the Trial Court. Specifically,
Plaintiffs’ counsel stated:

               A couple of preliminary matters – I have not completed discovery in
               this case. I have not deposed . . . Moore. Those affidavits were filed
               back when the motion came down. I’m not sure when they were
               filed, sometime earlier this year. And I have not deposed the two
               witnesses who have signed those affidavits. In addition to that, I had
               served some Requests to Admit and some Interrogatories on the
               defendant. And as I read my file, you all responded to the Request to
               Admit, but did not answer the Interrogatories, I don’t think. So, there
               is some discovery, frankly, I need to complete, I feel like, to make this
               a complete record. But I’m prepared to respond to their motion, piece
               by piece.


                                                  -4-
             After hearing arguments from counsel, the Trial Court granted Defendant’s summary
judgment motion. In doing so, the Trial Court stated, in relevant part, as follows:

                      One thing that is important to note is that a part of [the] duty
              [of] a premises owner is not [as] a guarantor of the safety of the
              persons who come on the property. They must use reasonable care to
              protect someone on the property from dangers, defective conditions
              about which they know or reasonably should know and that they use
              reasonable care in the maintenance of their premises.… The issue is
              the extent to which the premises owner has a duty to protect someone
              sitting on that bench from an automobile or motor vehicle using the
              parking lot.… There is no proof before the Court that before the date
              of this accident that any other accident had occurred involving this
              park bench. Absence of an accident doesn’t prove that the premises
              owner should not have foreseen or maybe not been aware of a
              potential hazard.

                                              ****

                       The critical issue is the foreseeability of this type of …
              specific accident occurring. The facts are undisputed that Ms.
              Ottinger, for whatever reason, lost control of her vehicle, [and] went
              in reverse from the parking space.… [Her car] even backed out on the
              public street, circled around, still in reverse, came in behind the guard
              rail in question. Whether the guard rail was directly in front of the
              bench or not directly in front of the bench, that didn’t matter, because
              her vehicle came in behind it from the side and struck these two
              people, resulting in their terrible death.… If this was a common
              occurrence, that people’s accelerators jammed to the floor and they
              swung their car around, you would almost have to put up steel and
              concrete barriers to protect everybody who was standing at any point
              on the premises.… Under the facts of this case, even had there been
              an impenetrable concrete steel barrier in front of the bench, this
              vehicle from the direction it came, it wouldn’t … have changed
              anything.

                                              ****

                      In this particular case it’s shown that Brock’s did place
              barriers …. It’s undisputed that there were the typical parking
              concrete curb, intended to stop vehicles from coming directly
              forward, to either protect people that might be standing there or the
              building itself. They are common. They’re used everywhere and they


                                                -5-
               were placed in this location.… This Court must find that the
               defendant is entitled to a Motion for Summary Judgment in that …
               this accident could not possibly have been foreseen, that the owners
               of the market did use reasonable care, that this very bizarre and
               unique action by Ms. Ottinger was certainly an intervening cause …
               and was beyond the foreseeability of anyone that this could have
               occurred and anything remotely comparable to it.

                Plaintiffs appeal the Trial Court’s granting of summary judgment to Defendant.
Plaintiffs claim they were entitled to additional discovery and the Trial Court erred in granting
summary judgment when discovery was incomplete. Plaintiffs also claim the Trial Court erred in
granting summary judgment because the bench was a dangerous condition, the Market had notice
of this danger, and the injuries and deaths of Clifford Frazier and Azeline Kittrell were foreseeable.

                                             Discussion

                We first discuss Plaintiffs’ argument that summary judgment was inappropriate since
additional discovery was needed. Although the Trial Court never specifically ruled on the oral
request for additional time to conduct discovery, we will assume the request was denied since the
motion for summary judgment was granted. The standard of review on this issue is whether or not
the Trial Court clearly abused its discretion. See Hughes v. Effler, No. E-2000-03147-COA-R3-CV,
2001 Tenn. App. LEXIS 570 at **3, 4 (Tenn. Ct. App. Aug. 7, 2001), app. for perm. to appeal
denied Dec. 29, 2001, (citing Underwood v. Zurich Ins. Co., 854 S.W.2d 94 (Tenn. 1993)).

                The complaints in the present case were filed on May 15 and July 11 of 2000. The
affidavits of Moore, Messer and Holt were filed on April 5, 2001. Defendant’s motion for summary
judgment was filed on May 14, 2001, almost a year to the date the Frazier complaint was filed.
Plaintiffs deposed Ottinger in June of 2001. The motion for summary judgment was heard by the
Trial Court on August 24, 2001, over one year and three months after the Frazier complaint was
filed, and over one year and one month after the Kittrell complaint was filed. Plaintiffs never filed
an affidavit setting forth why they needed additional time for discovery or why this discovery had
not been completed prior to the hearing. This issue was not brought to the attention of the Trial
Court until the actual hearing was underway. Rule 56.07 of the Tenn. R. Civ. P. provides as follows:

               56.07. When Affidavits Are Unavailable. – Should it appear from
               the affidavits of a party opposing the motion that such party cannot
               for reasons stated present by affidavit facts essential to justify the
               opposition, the court may refuse the application for judgment or may
               order a continuance to permit affidavits to be obtained or depositions
               to be taken or discovery to be had or may make such other order as is
               just. (emphasis added).




                                                 -6-
                This Court addressed a similar set of facts in Hughes v. Effler, supra. In Hughes, one
of the defendants filed a motion for summary judgment with a supporting affidavit on May 2, 2000.
The motion was set for hearing on June 12, 2000, but was continued until August 28, 2000, at the
request of the plaintiffs. At the August 28 hearing, plaintiffs’ attorney made an oral motion
requesting additional time for discovery, which was denied. After summary judgment was granted,
the plaintiffs moved to have the summary judgment set aside, stating the case had only been pending
for five months, discovery had not been completed, and all of the defendants had not yet answered
the complaint. This motion was denied. Two days later, counsel for Plaintiffs filed an affidavit
setting forth why additional discovery was needed. Hughes v. Effler, No. E-2000-03147-COA-R3-
CV, 2001 Tenn. App. LEXIS 570 at **2, 3 (Tenn. Ct. App. Aug. 7, 2001). In affirming the grant
of summary judgment, we stated:

                       The Statement of Undisputed Facts states that Braun did not
               deviate from the applicable standard of care, as does the affidavit.
               Plaintiffs filed no response by affidavit or otherwise to rebut this.
               Numerous cases have refused to give a party relief where their own
               neglect has caused them to suffer a disadvantage. There is nothing in
               the record to indicate that the plaintiffs could not have undertaken
               meaningful discovery in the five month period that this case was
               pending, nor, do they give any reason as to why they failed to do so.
               See Kerney v. Cobb, 658 S.W.2d 128 (Tenn. Ct. App. 1983);
               Ravenwood Homeowners Ass'n v. Bailey, 1988 WL 87676 (Tenn. Ct.
               App. Aug. 26, 1988); Laue v. Richardson, 1987 WL 9374 (Tenn. Ct.
               App. Apr. 14, 1987).

                       We find no abuse of discretion by the Trial Court in refusing
               to allow another continuance of the Motion. Tenn. R. Civ. P. Rule
               56.07 presupposes that the opponent of the motion seeking a
               continuance will set forth facts in an affidavit essential to justify the
               continuance.

Hughes, 2001 Tenn. App. LEXIS 570 at **4, 5.

                In the present case, Plaintiffs did not file an affidavit in accordance with Rule 56.07
prior to the hearing. Plaintiffs offered the Trial Court absolutely no facts supporting why this
discovery had not been completed prior to the hearing. There is nothing in the record before us to
indicate Plaintiffs did not have sufficient time for meaningful discovery during the more than one
year in which these cases were pending. Likewise, there is no indication from the record that
Plaintiffs even attempted to depose Moore, Messer, or Holt, or that Defendant did anything to thwart
the taking of these depositions. Plaintiffs had the affidavits of these witnesses for four and one-half
months prior to the hearing. That Defendants did not respond to Plaintiffs’ interrogatories and
requests for production of documents does not change this fact in light of Plaintiffs’ ability to file



                                                 -7-
a motion to compel discovery pursuant to Rule 37, an option they chose not to pursue.1 We also find
it relevant that Plaintiffs’ counsel stated to the Trial Court, after informing the Trial Court there was
some discovery Plaintiffs needed to complete, that “I’m prepared to respond to their motion, piece
by piece.” In short, Plaintiffs’ counsel told the Trial Court he was ready to respond to the motion
at that hearing. We find no abuse of discretion by the Trial Court in refusing to grant Plaintiffs
additional time to conduct discovery before ruling on the motion for summary judgment.

               Next, Plaintiffs challenge the Trial Court’s granting of summary judgment to
Defendant. The standard for review of a motion for summary judgment is set forth in Staples v. CBL
& Associates, Inc., 15 S.W.3d 83 (Tenn. 2000):

                         The standards governing an appellate court’s review of a
                 motion for summary judgment are well settled. Since our inquiry
                 involves purely a question of law, no presumption of correctness
                 attaches to the lower court’s judgment, and our task is confined to
                 reviewing the record to determine whether the requirements of Tenn.
                 R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
                 50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
                 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
                 56.04 provides that summary judgment is appropriate where: (1) there
                 is no genuine issue with regard to the material facts relevant to the
                 claim or defense contained in the motion, see Byrd v. Hall, 847
                 S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
                 to a judgment as a matter of law on the undisputed facts. See
                 Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
                 1993). The moving party has the burden of proving that its motion
                 satisfies these requirements. See Downen v. Allstate Ins. Co., 811
                 S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
                 judgment makes a properly supported motion, the burden shifts to the
                 nonmoving party to set forth specific facts establishing the existence
                 of disputed, material facts which must be resolved by the trier of fact.
                 See Byrd v. Hall, 847 S.W.2d at 215.

                          To properly support its motion, the moving party must either
                  affirmatively negate an essential element of the non-moving party’s
                  claim or conclusively establish an affirmative defense. See McCarley
                  v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);
                  Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
                  party fails to negate a claimed basis for the suit, the non-moving
                  party’s burden to produce evidence establishing the existence of a


        1
           Defendant’s failure to respond to this discovery certainly would have been a consideration in determining
whether to grant more time for discovery had it been included in a Rule 56.07 affidavit filed prior to the hearing.

                                                        -8-
               genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960
               S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
               party successfully negates a claimed basis for the action, the non-
               moving party may not simply rest upon the pleadings, but must offer
               proof to establish the existence of the essential elements of the claim.

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be
decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

                Although owners or occupiers of a business premise are not insurers of their
customers’ safety, they do have a duty to use reasonable care to protect their customers from
unreasonable risks of harm. Basily v. Rain, Inc., 29 S.W.3d 879, 883 (Tenn. Ct. App. 2000). This
duty includes maintaining the premises in a reasonably safe condition, either by removing or
repairing potentially dangerous conditions, or by warning guests of the existence of a dangerous
condition that cannot, as a practical matter, be removed or repaired. Id. at 883. The Basily Court
noted the courts have declined to impose a duty to protect on owners or occupiers of businesses
against conditions from which no unreasonable risk of harm can be anticipated. Id. “As in any
negligence action, we think 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 a defendant’s conduct outweigh the burden
upon the defendant to engage in alternative conduct that would prevent the harm.” Coln v. City of
Savannah, 966 S.W.2d 34, 37 (Tenn. 1998)(citing McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995)).
Factors to consider when making this determination include: (1) the foreseeable probability of the
harm or injury occurring; (2) the possible magnitude of the potential harm or injury; (3) the
importance or social value of the activity engaged in by defendant; (4) the usefulness of the conduct
to defendant; (5) the feasibility of alternative, safer conduct and the relative costs and burdens
associated with that conduct; (6) the relative usefulness of the safer conduct; and (7) the relative
safety of alternative conduct. Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998). Our
Supreme Court in Coln went on to explain:




                                                 -9-
                        The determination of whether a duty is owed requires a
                balancing of the foreseeability and gravity of the potential harm
                against the burden imposed in preventing that harm. McClung v.
                Delta Square Ltd. Partnership, 937 S.W.2d 891, 901 (Tenn. 1996).
                Assuming a duty of care is owed, be it a duty to refrain from creating
                a danger or a duty to warn against an existing danger, it must then be
                determined whether a defendant has conformed to the applicable
                standard of care, which is generally reasonable care under the
                circumstances. "Ordinary, or reasonable, care is to be estimated by
                the risk entailed through probable dangers attending to the particular
                situation and is to be commensurate with the risk of injury." Doe v.
                Linder Const. Co., Inc., 845 S.W.2d 173, 178 (Tenn. 1992).

                                                ****

                        In premises liability cases, application of duty principles
                resulted in imposing a duty on an owner or possessor of premises to
                exercise reasonable care under the circumstances to a guest (licensee)
                or business invitee. The duty includes the responsibility of either
                removing or warning against any latent or hidden dangerous condition
                on the premises of which one was aware or should have been aware
                through the exercise of reasonable diligence. Eaton v. McLain, 891
                S.W.2d 587, 594 (Tenn. 1994); Smith v. Inman Realty Co., 846
                S.W.2d 819, 823 (Tenn. App. 1992).

Coln, 966 S.W.2d at 39, 40.

                Plaintiffs argue furnishing a bench which adjoins a parking area in and of itself
creates an extreme hazard. They also claim Defendant provided insufficient barricades to protect
its customers sitting on the bench. Plaintiffs point to the existence of the guardrail protecting the ice
machine, and strongly rely on the absence of a guardrail in front of the bench to protect customers.

                 The facts in the present case undoubtedly are unique and bizarre. We agree with the
Trial Court that the accident in question could not have been reasonably foreseen by Defendant.
Concrete curbs were installed to prevent cars from pulling up too close to the bench or the Market.
Ottinger, who apparently was intoxicated, was driving in reverse and at a high rate of speed. She
left Defendant’s premises, in reverse, while making a U-turn and entered upon a public road, then
returned to Defendant’s premises, jumped a concrete curb, and struck the bench from the side. The
Trial Court correctly pointed out that no amount of additional barriers in front of the bench, as
suggested by Plaintiffs, would have prevented Ottinger’s car from coming onto the sidewalk from
the side. Ottinger’s car destroyed the guardrail in front of the ice machine. If we were to accept
Plaintiffs’ position, Defendant and every other business or property owner would be required to erect
an impenetrable barrier around any bench, sidewalk, walkway, etc., located in a place accessible to


                                                  -10-
any out-of-control car. Such a holding would effectively eliminate any requirement of foreseeability
in those situations. We decline to do so.

                While Deatherage’s affidavit creates a genuine issue of material fact as to whether
the location of the bench was dangerous, it does not create a genuine issue of material fact with
regard to whether or not Defendant reasonably could have foreseen Ottinger’s conduct and this
accident. See Tedder v. Raskin, 728 S.W.2d 343, 348-49 (Tenn. Ct. App. 1987)(“[T]he plaintiff
must further prove that the landlord's failure to act was the proximate cause of the injury. To meet
this burden, the plaintiff must show that the injury was a reasonably foreseeable probability, not just
a remote possibility, and that some action within the landlord's power more probably than not would
have prevented the injury.”). We hold that these deaths, however tragic, were at best a remote
possibility and not a reasonably foreseeable probability. Accordingly, we affirm the Trial Court’s
granting of summary judgment to Defendant.

               The final issue on appeal is Defendant’s assertion that this appeal should be dismissed
because Plaintiffs failed to serve the notice of appeal within seven days as required by Tenn. R. App.
P. 5(a). Defendant raised this argument by motion in this Court prior to oral argument and the
motion was denied. We decline to revisit this issue.

                                             Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed equally against the Appellants Lassie
Frazier, surviving spouse of Clifford Frazier, deceased, for her benefit and the benefit of sons Arthur
Frazier, Elmer Frazier, David Frazier, daughters Edna Valentine, Faye Crum, Ada Woody, Gladys
Boles and Diana Miller, and Basil Stanton Kittrell, individually and as personal representative of the
estate of Azeline Kittrell, and their surety.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




                                                 -11-
