Amy Tyler v. Larry Morgan, d/b/a Larry Morgan Const. Co.

• Court: Court of Appeals of Tennessee
• Decided: November 24, 1998
• Docket: 01A01-9711-CV-00661
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE ______________________________________________

AMY TYLER,

Plaintiff-Appellant, FILED Williamson Circuit No. 96361 Vs. C.A. No. 01A01-9711-CV-00661 November 24, 1998 LARRY MORGAN, d/b/a LARRY MORGAN CONST. COMPANY, Cecil W. Crowson UNITED CITIES GAS CO., Appellate Court Clerk ROGER P. DYE, d/b/a ROGER DYE CONST. CO., MURRAY TATUM, QUAD STATES, INC.,

Defendants-Appellees. ____________________________________________________________________________

DISSENT ____________________________________________________________________________

CRAWFORD, J.

I respectfully dissent from the majority opinion. Bearden’s affidavit states that he had

a conversation with the defendants’ employees right after they finished pouring the concrete at

about 5:00 or 5:30 p.m. He further states that after warning the workers that they should

barricade the area, he was assured by the workers that they would put up a barricade. Although

a stretched string is not much of a barricade as we normally think of a barricade, to some people

it could be considered a type of a warning barricade. Since Bearden was assured by the workers

that they would put up a barricade, and subsequently the so-called barricade existed, there

appears to be an inference that the workers placed the barricade.

In considering a motion for summary judgment, the court must consider the motion in

the same manner as a motion for directed verdict made at the close of the plaintiff’s proof; that

is, the court must take the strongest legitimate view of the evidence in favor of the nonmoving

party allowing all reasonable inferences in favor of that party and discard all countervailing

evidence. Suddath v. Park, 914 S.W.2d 910 (Tenn. App. 1995).

Although the defendants categorically deny any knowledge of the string, the fact that the

defendant’s employees said they were going to erect a barricade, in my opinion creates a genuine

issue as to a material fact and precludes summary judgment.

I would reverse the order of the trial court granting summary judgment and remand this

case for further proceedings. _________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.