author: WILLIAM B. CAIN, J„ FRANK G. CLEMENT, JR., J.,

text:
    Dana FRIEDENSTAB, et al. v. Martha SHORT.
    Court of Appeals of Tennessee, at Nashville.
    Oct. 9, 2003 Session.
    May 27, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 6, 2004.

      Pamela M. Spicer, Nashville, Tennessee, for the appellants, Dana Friedenstab and Michael Friedenstab.
    Alan M. Sowell, M. Kristin Selph, Nashville, Tennessee, for the appellee, Martha Short.
   WILLIAM B. CAIN, J„

delivered the opinion of the court,

in which PATRICIA J. COTTRELL, joined.

OPINION

The plaintiffs bring this appeal from the trial court’s summary judgment in favor of the defendant. We affirm.

Dana Friedenstab and her husband sued her employer, Martha Short, for injuries sustained when Mrs. Friedenstab slipped and fell at the Short home, where Mrs. Friedenstab performed housekeeping duties for Martha Short. Mrs. Frieden-stab’s duties often took her up and down a set of stairs leading from the Short kitchen to the garage. The undisputed facts in the record show that the stairs were well lit, when on July 19, 2000, while descending the steps, Plaintiff slipped and fell. A complaint was filed June 13, 2001, and alleged negligence and a failure to warn of a dangerous condition on the property, ie., newspapers placed “on the stairs.” Discovery commenced, and by the time Defendant filed her Motion for Summary Judgment on December 13, 2002, the following facts were established and undisputed:

1. Plaintiff fell when she slipped on newspapers on the floor of the garage at the foot of the stairway.
2. Although Defendant normally put accumulated newspapers near the steps in the garage pending later recycling of them, Plaintiff had never seen the papers near the steps before. It is unknown how many newspapers were near the steps. Although Plaintiff had testified in deposition that she did not know how she missed seeing the papers until she stepped on them, in response to Defendant’s motion, Mrs. Friedenstab swore by affidavit that her view of the papers was obstructed by the last of the three steps. Defendant moved for summary judgment, arguing lack of duty and comparative fault.

On February 18, 2003, the trial court granted summary judgment to Defendant on the following grounds:

1. That the newspapers were open and obvious;
2. That Plaintiff had an obligation to watch her step;
3. That nothing distracted Plaintiffs view of the newspapers; and
4. That a reasonable jury would have to find that Plaintiff was more than 50% at fault for her injuries.

It is from this summary judgment grant, that Plaintiffs appeal arguing the existence of material factual issues prohibiting the grant of summary judgment. See Tenn. R. Civ. P. 56; see also Byrd v. Hall, 847 S.W.2d 208, 214-16 (Tenn.1993).

Thé supreme court provides guidance concerning the grant of summary judgment:

Summary Judgment is to be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.R.C.P. 56.03. “The court’s role in ruling on the motion is similar to its role in ruling on a motion for a directed verdict, and it must view the ... evidence before it in the light most favorable to the opponent of the motion.” Stone v. Hinds, 541 S.W.2d 598 (Tenn.App.1976).

Lindsey v. Miami Development Corp., 689 S.W.2d 856, 858 (Tenn.1985).

Both parties agree that the question of the existence of a duty between Defendant and Plaintiff is a question of law. See Coin v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998). The existence of that duty is the initial requirement of proof to establish a negligence claim. As the court in Coin stated:

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).

Coin v. City of Savannah, 966 S.W.2d at 39.

The court in Doe provided this analysis of foreseeability and risk:

“[T]he plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant’s] power more probably than not would have prevented the injury.” Tedder, 728 S.W.2d at 348. Foreseeability must be determined as of the time of the acts or omissions claimed to be negligent.
Negligence already has been defined as conduct which falls below a standard established by the law for the protection of others against unreasonable risk of harm. The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. Risk, for this purpose, may then be defined as a danger which is apparent, or should be apparent, to one in the position of the actor. The actor’s conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward “with the wisdom born of the event.” The standard is one of conduct, rather than consequences. It is not enough that everyone can see now that the risk was great, if it was not apparent when the conduct occurred.
5 Prosser and Keeton, The Law of Torts § 31, p. 170 (1984) (footnotes omitted).

Doe v. Linder Constr. Co., Inc., 845 S.W.2d 173,178 (Tenn.1992) (emphasis added).

Keeping in mind that there is no liability for the results of an accident that could not have been foreseen by a reasonably prudent person, and that “negligence is not to be presumed by the mere happening of an injury or accident,” Brackman v. Adrian, 63 Tenn.App. 346, 472 S.W.2d 735, 739 (1971), and that the burden rests upon Plaintiff to establish a duty owed by Defendant to him, a breach of that duty and injury resulting from the breach, Smith v. Roane-Anderson Co., 30 TenmApp. 458, 207 S.W.2d 353 (1947); Nelson v. Richardson, 626 S.W.2d 702 (Tenn.Ct.App.1981), we now look to the record in this case.

Believing that she was filing suit against her physician for medical malpractice, Dana Friedenstab went to her attorney’s office and found that she was, in fact, suing Martha Short.

In her complaint she alleged:

4. The incident occurred at approximately noontime when Plaintiff, Dana Friedenstab, was in Defendant’s home providing housekeeping services and attempted to negotiate a flight of three steps from the alcove off the Defendant’s kitchen into Defendant’s garage to obtain an ironing board. Prior to June 19, 2000, Plaintiff, Dana Frieden-stab was familiar with Defendant’s home and had utilized the stairs from Defendant’s garage into the alcove off Defendant’s kitchen on numerous occasions. Unknown to Plaintiff Dana Friedenstab, however, Defendant had placed a stack of newspapers on the bottom step leading into her garage and Plaintiff slipped on this stack of newspapers and fell into the floor of Defendant’s garage sustaining severe and debilitation injuries.
5. Defendant, Martha Short, was guilty of one or more of the following acts of negligence which constitute a direct and proximate cause of all injuries and damages alleged herein:
a. Said Defendant placed newspapers on the steps leading from the alcove off her kitchen into her garage when Defendant knew, or in the exercise of reasonable care should have known, that said newspapers created an obstruction on the steps and a dangerous condition for people attempting to traverse those steps;
b. Said Defendant failed to warn Plaintiff Dana Friedenstab that she had placed newspapers on the steps leading from the alcove off her kitchen into her garage when said Defendant knew, or in the exercise of reasonable care should have known, that said newspapers created an obstruction on the steps and a dangerous condition for people using the steps, and that Plaintiff Dana Frieden-stab would be using those, steps in performing the housekeeping services that Defendant had requested Plaintiff to perform.
6.As a direct and proximate result of Defendant’s foregoing acts of negligence, Plaintiffs have incurred doctor, hospital, and medical expenses, and will continue to incur such expenses in the future.

Sixteen months after filing her complaint, Plaintiff testified, by discovery deposition, in relevant part:

Q. Is it fair to say that during the two years that you had been working with her at her house that you were familiar with her house?
A. Very. And it’s a big house.
Q. Now, this incident occurred in the garage; is that correct?
A. Yes, it did.
Q How many times had you been in the garage before during those two years?
A. Many times.
Q. And you went into the garage, was there light in the garage?
A. There was light like it always was but mainly coming from" the skylight and from the storage room that was open.
Q. Did that provide you with adequate light?
A. Sure, it was. I never really — it was never dark.
Q. All right. So you didn’t need to turn on a light?
A. No, it was — it was plenty lit up.
Q. All right. Tell me what happened.
A. Boy, it’s all a blur, but I just didn’t see any papers until my foot hit them and flew out from under me. I didn’t see — I was just — and I was looking where I was going because I always did and I didn’t have any reason to think that it would be any different that day because she had never had papers there before, ever.
Q. Now, when you say papers, are you referring to newspapers?
A. They were newspapers.
Q. And they were at the bottom of the steps on the garage floor?
A. They were at the bottom the steps on the garage floor?
Q. So they were not on the steps?
A. No, not on the step. It was at the bottom. I know that I had seen that somewhere where they said on the step. It’s not so, it was on the bottom.
Q. How many newspapers were at the bottom—
A. I don’t know.
Q. Let me finish my question. How many newspapers were at the bottom of the stairs?
A. I have no idea. I just know there was newspapers that my feet fell on.
Q. Now, what prevented you from seeing these newspapers?
A. I don’t know. They just weren’t that visible until I hit them. It was just three steps and I’m going down — down the steps and by the time my foot hit the bottom, it slid out from under me.
Q. I think of newspapers as being fairly large and white. Is that what they were?
A. Yes, they were. I’m sorry, I didn’t see them until my feet was hitting them. I just didn’t.
Q. I understand you didn’t see them, but if you had been looking for them, you would have seen them.
A. Well, there’s no need to look for them. There had never been any papers at the bottom of the stairs before, ever.
Q. So you felt that there wasn’t any reason to look at the bottom of the stairs?
A. Well, I was looking where I was going, but no, I wasn’t looking to see if there was papers laying down there.
Q. Well, what did you see?
A. I saw my feet fly out from under me.
Q. What did you see before you saw your feet fly out from under you?
A. I saw the steps.
Q. And then after the steps there’s the garage floor; is that right?
A. That’s it.
Q. And that’s where the newspapers were?
A. Under the last step going to the garage on the floor, under the last step.
Q. Are you saying you couldn’t see the newspapers because—
A. Well, they weren’t there to see.
Q. Wait, wait, wait. Are you saying that you couldn’t see the newspapers because the step blocked your view of them?
A. No. I’m saying that I didn’t see them at all until my foot hit them.
Q. I understand what you just told me. What I’m trying to find out is why you didn’t see them.
A. I don’t know, but I did not see them.
Q. Nothing blocked your view?
A. Nothing. I just didn’t see them. They were not that visible until my foot was hitting them.
Q. You say they weren’t that visible, but there was light to see them by?
A. There was — there was light in there. I would have turned on the light if there wasn’t light.
Q. So you just don’t know why you didn’t see them?
A. I was looking where I was going. I was seeing the steps, but when I saw the papers it was too late. I was hitting them and falling.
Q. Were you carrying anything in your arms?
A. No, not a thing.
Q. Were you rushing down the stairs?
A. Just like normal, like I had always went down.

While Defendant testified that for years she routinely stacked newspapers on one side or the other of the steps leading from the kitchen to the garage until enough papers were accumulated to justify a trip to the recycling center, there is no evidence that she placed any newspapers on the landing below the last step leading down from the kitchen. When Defendant filed a Motion for Summary Judgment Plaintiff responded with an affidavit, asserting in pertinent part:

5. As I was descended the stairs I was looking where I was going and did not rush.
6. I was being careful as I descended the stairs and I was not carrying anything.
7. There was adequate light in the garage as provided by the -window and open storage room.
8. I did not see the newspapers as I descended the stairs until my foot hit them.
9. At the time my foot hit the newspapers, the newspapers were located at the bottom of the stairs.
10. My view of the newspapers was obstructed by the last step, as when I slipped on the newspapers, the newspapers were at the bottom of the stairs and I could not see them.

There is no proof offered in the record by which any trier of fact or trier of law can determine whether one sheet of newspaper was on the garage floor, immediately below the last step, or a multi-inch stack of newspapers. There is no evidence in the record as to how such newspaper or newspapers got into this location. There is no evidence of any substance, either on the newspaper, on the steps, or beneath the newspaper that would make the landing below the last step hazardous or defective. One would have to find the newspaper itself constituted the hazard — a rather nebulous assumption — though possible.

Before addressing the “traditional open and obvious rule” as that rule was modified by Coln v. City of Savannah, 966 S.W.2d 34 (Tenn.1998), it is necessary to address the direct contradiction between the deposition testimony of Plaintiff and her statement under oath in her affidavit filed in response to the Motion for Summary Judgment. The critical question is the extent to which the bottom step obstructed her view of the newspapers resting on the garage floor immediately beyond and below the bottom step. In deposition, Plaintiff testified: .

Q. What did you see before you saw your feet fly out from under you?
A. I saw the steps.
Q. And then after the steps there’s the garage floor; is that right?
A. That’s it.
Q. And that’s where the newspapers were?
A. Under the last step going to the garage on the floor, under the last step.
Q. Are you saying you couldn’t see the newspapers because—
A. Well, they weren’t there to see.
Q. Wait, wait, wait. Are you saying that you couldn’t see the newspapers because the step blocked your view of them?
A. No. I’m saying that I didn’t see them at all until my foot him them.
Q. I understand what you just told me. What I’m trying to find out is why you didn’t see them.
A. I don’t know, but I did not see them.
Q. Nothing blocked your view?
A. Nothing. I just didn’t see them. They were not that visible until my foot was hitting them.
Q. You say they weren’t that visible, but there was light to see them by?
A. There was — there was light in there. I would have turned on the light if there wasn’t light.
Q. So you just don’t know why you didn’t see them?
A. I was looking where I was going. I was seeing the steps, but when I saw the papers it was too late. I was hitting them and falling.
Q. Were you carrying anything in your arms?
A. No, not a thing.

(emphasis added)

In her affidavit in response to Defendant’s Motion for Summary Judgment, she said “my view of the newspapers was obstructed by the last step, as when I slipped on the newspapers, the newspapers were at the bottom of the stairs and I could not see them.” (emphasis added)

No explanation is offered as to this vital contradiction. When Plaintiff attempts to establish that a disputed question of fact exists as to her failure to see what was otherwise open and obvious to her by claiming in her affidavit that her view of the newspaper was obstructed by the bottom step, she fails as a matter of law.

“Two sworn inconsistent statements by a party are of no probative value in establishing a disputed issue of material fact.” Price v. Becker, 812 S.W.2d 597 (Tenn.Ct.App.1991). So it is that the Coln analysis must be made accepting as fact that nothing obstructed the view of Plaintiff of what was immediately in front of and below her and nothing distracted her attention.

In Coln, Tennessee abandoned the traditional “open and obvious” rule in favor of the Restatement approach. Under this approach: “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (2nd) of Torts, § 343A(1).

While as the court recognized in Coln, some jurisdictions have entirely abrogated the open and obvious rule, the Restatement rule, as adopted in Coln, is still dependent upon the duty analysis.

This Restatement duty analysis includes a comment that:

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitees’ attention may be distracted, so that he will not discover what is obvious, or will forget what he had discovered, or will fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. Restatement (2nd) of Torts, § 343A(comment f).

Coln, 966 S.W.2d 34 at 41 (Tenn.1998).

The result of Coln is: “The analysis, therefore, as in any negligence case, ■ is first upon duty in accordance with the foreseeability and gravity of harm, and the feasibility and availability of alternatives; if a duty is imposed, then surrounding circumstances are analyzed under the principles of comparative fault.” Coln, 966 S.W.2d at 42.

First, the court must answer the question of law as to whether or not a duty exists under the facts of this case. If such a duty exists, then the court must determine whether or not the record establishes, as a matter of law, that Plaintiff is 50% or more at fault for her own injuries. If so, judgment is rendered for Defendant. If not, summary judgment must be reversed and the case remanded for trial on the merits. In analyzing the existence of a duty, the first and foremost consideration is “foreseeability and gravity of harm.” A landowner is not an insurer of his premises as relates to invitees. McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn.1980). The condition causing the injury in this case was newspaper lying on the landing at the bottom of the three-step stairway. There is no allegation or proof of any defect or obstruction existing on the stairway. There was no foreign substance of any type on the stairway. There is no proof of any substance or condition of the surface or subsurface of the basement floor beneath the last step of the stairway which could have combined with the newspaper lying on the floor surface to create a slippery condition. Plaintiff did not catch her heel in the newspapers or stumble over the newspapers, but asserts only that she “slipped and fell” as she stepped on the newspaper.

Certain long standing rules of law did not come to an end with the advent of Coln. The adoption of the Restatement rule in Coln reaffirms, rather than abrogates, the requirement of an analysis of foreseeability by the court in determining the question of law of whether or not a duty exists. In this “foreseeability analysis” the rules laid down in Illinois Central Ry. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213 (1938) are still viable.

In order to impute to the owner knowledge of a dangerous thing, or place, the danger therefrom must be such as is recognized by common experience, or might reasonably be expected or anticipated by a person of ordinary prudence and foresight. Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made (here the ventilated slat floor) is insufficient as against an event such as might happen once in a life time (here that this customer for tomatoes would enter this freight car wearing a soft and worn rubber heel, and twist it between the slats, and fall through the car door) does not make out a case of actionable negligence. These rules, thus stated in 20 R.C.L. p. 16, have been announced in numerous opinions cited in the notes. As said by Mr. Justice Holmes, when on the Massachusetts Court, “If men were held answerable for everything they did which was dangerous in fact, they would be held for all their acts from which harm in fact ensued. The use of the thing must be dangerous according to common experience, at least to the extent that there is a manifest and appreciable chance of harm from what is done, in view, either of the actor’s knowledge or of his conscious ignorance.” Com. v. Pierce, 138 Mass. 165, 52 Am.Rep. 264. In harmony are the holdings in this State that to render one liable for negligence, it must be shown that the damages was the ordinary or probable consequence of the act, or omission. Youngstown Bridge Co. v. Barnes, 98 Tenn. 401, 89 S.W. 714; East Tennessee Railroad Co. v. De Armond, 86 Tenn. 73, 5 S.W. 600, 6 Am.St.Rep. 816; Weeks v. McNulty, 101 Tenn. 495, 496, 48 S.W. 809, 43 L.R.A. 185, 70 Am.St.Rep. 693.

Illinois Central Ry. Co. v. Nichols, 118 S.W.2d at 217 (Tenn.1938).

As stated by the supreme court in Gentry v. Taylor, 182 Tenn. 223, 185 S.W.2d 521 (1945), “as well expressed by Mr. Sal-mond (Law of Torts, p. 141), in the language of a leading English authority, ‘to determine whether or not an act [of commission or omission] is negligent it is relevant to determine whether any reasonable person could foresee that the act would cause damage; if it would not the act is not negligent.’ ” 182 Tenn. 223, 185 S.W.2d 521 at 525 (1945).

This Court has held, “whether there is a duty owed by one person to another is a question of law to be decided by the court.” However, once a duty is established, the scope of duty or the standard of care is a question of fact to be decided by the trier of fact. Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn.Ct.App.1990). The line to be drawn between “duty as law” and “scope of duty as fact” is difficult to see and in some cases all but imperceptible. While the approach of Justice Holder concurring in Coin would, for all practical purposes, eliminate the line of demarcation, the adoption by the majority in Coin of the Restatement approach reaffirms the demarcation and reaffirms “foreseeability” as the primary test for the existence of a duty.

One has but to compare the facts of the two cases and then apply the foreseeability analysis of Rice v. Sabir, 979 S.W.2d 305 (Tenn.1998) to conclude that summary judgment on the “duty” question is mandated in this case. In Rice, the landowner, Sabir, had no actual knowledge that severe mildew had accumulated on the roof, or that it was extremely slippery and any more dangerous than normal. Sabir only had knowledge that mildew existed inside the house. In the case at bar, Mrs. Short had no actual knowledge of newspapers on the floor landing of the basement immediately beyond the last step. She had only knowledge that she had, through the years, placed newspapers on either side of the stairway in contemplation of recycling them. In reconciling Rice with Coin, the supreme court said:

As we said in Coln, 966 S.W.2d at 34, merely labeling the injury-causing condition ‘open and obvious’ does not end the inquiry as to duty. Instead, the court must weigh the foreseeable risk and gravity of harm against the burden placed on the defendant to engage in alternative conduct which would have prevented the harm. Here, we conclude that the harm was not reasonably foreseeable and that no alternative conduct was required of the defendant.

Rice v. Sabir, 979 S.W.2d 305, 310 (Tenn.1998).

Post-Coln and Rice, Judge Farmer writing for this Court held:

In a premises liability action, liability stems from the superior knowledge held by the owner or occupier regarding the condition of the premises. Ogle v. Winn-Dixie, Greenville, Inc., 919 S.W.2d 45, 46 (Tenn.Ct.App.1995). The owner or occupier has a duty to exercise reasonable care to prevent injury to persons lawfully on the premises. Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn.1998). The duty of an owner or occupier to exercise reasonable care includes the responsibility to remove or warn against the latent or hidden dangerous conditions on the premises that the owner or occupier is aware of or should have been aware of through the exercise of reasonable diligence. Id. “The duty imposed on the premises owner or occupier, however, does not include the responsibility to remove or warn against ‘conditions from which no unreasonable risk was to be anticipated, or from those which the occupier neither knew about nor could have discovered and with reasonable care.’” Id. (quoting W. Page Keeton, Prosser & Keeton on Torts, § 61 at 426 (5th ed.1984)). Further, “mere existence of a defect or danger is generally insufficient to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably conclude that due care would have discovered it.” Id. (quoting Keeton, supra at 426-427).

Nee v. Big Creek Partners, 106 S.W.3d 650, 653 (Tenn.Ct.App.2002).

With no other proof in the record of any danger or defective condition, other than a newspaper on the floor, this ease fails the foreseeability test of Illinois Central R.R. Co. v. Nichols and its progeny, and summary judgment was properly granted on the basis that Plaintiff has established no duty owing to Plaintiff from Defendant.

While, as in Rice, the “open and obvious” rule is a part of the foreseeability analysis, the same rule, as modified by the adoption in Coln of the rule in Restatement (2nd) of Torts § 343A, is likewise included in comparing fault. The proof in this case by Defendant is uncontradicted that she never placed newspapers on the basement floor in front of the first step, but always stacked them either to the left or right of the stairs. Her testimony is buttressed by the testimony of Plaintiff that she had never before seen newspapers on the floor in front of the steps — and indeed, had never seen newspapers in the basement at all. It is simply assumed that somehow it was Defendant who had placed the newspapers on the basement floor in front of the steps.

Since time immemorial, the liability of the owner of premises has been predicated upon his assumed superior knowledge.

Liability is grounded on the superior knowledge of the owner of the danger to the invitee. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted. In the language of Mr. Justice Harlan, the owner is liable to his invitees for injuries “occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to act upon such invitation.” Bennett v. Louisville & N.R. Co., 102 U.S. 577, 580, 26 L.Ed. 235. We quote this pertinent language from 20 R.C.L. p. 57, citing cases: “It has been said that the phrase ‘implied invitation’ in its real meaning and significance, as derived from its application to the adjudged cases, imports knowledge by the defendant of the probable use by the plaintiff of the defendant’s property so situated and conditioned as to be open to, and likely to be subjected to, such use. And, hence, there is no liability from dangers that are obvious, or as well known to the person injured as to the owner.”

Illinois Cent. R. Co. v. Nichols, 173 Tenn. 602,118 S.W.2d 213, 217-18 (1938).

Section 343A of the Restatement can be divided into two parts with the first part asserting, “a possessor of land is not hable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them.” In this case, if the presence of the newspaper on the floor before the first step can be referred to as a “danger” there is no proof in the record that Defendant landlord ever knew the condition existed. The condition, however — whether it be a danger or not — was open and obvious to Plaintiff. No underlying condition was hidden from her view. Under cases in Tennessee predating Coin, an invitee could not recover for injuries sustained from conditions of the premises that were obvious and as well known to the plaintiff as to the defendant. Kendall Oil Co. v. Payne, 293 S.W.2d p. 40 (Tenn.Ct.App.1955); Park v. Sinclair Refining Co., 24 Tenn.App. 204, 142 S.W.2d 321 (1940). This first part of the rule stated in section 343A of the Restatement is simply a reiteration of the pre-Coln “open and obvious” rule.

It is the second part of the Restatement rule that changes the gre-Coln “open and obvious” rule. This part states, “unless the possessor should anticipate the harm despite such knowledge or obviousness.” For it to be said, under the facts of this case, that Defendant should anticipate that stepping on a newspaper, on the flat surface of the floor just below the last step, could result in harm, stretches the imagination. In Coin, after reciting the facts and the Restatement rule, the court reversed summary judgment for Defendant holding:

We find that the City owed a duty of care under the facts of this case. The deviation between the surface of the brick pavers and concrete sidewalk created a foreseeable probability of harm. Although the deviation was open and noticeable to a degree, it is significant that the deviation was in an area that had to be navigated in order to gain access to the City Hall building. It is also significant that the City had actual knowledge of the deviation when the pavers were installed and was aware of the availability of corrective action. Despite such knowledge and the foreseeable risk of harm to persons who entered the City Hall building, the City took no steps to remove or warn against the danger. In our view, the risk of harm was unreasonable despite its open and obvious nature and the foreseeability and gravity of harm, therefore, outweighed the burden imposed in protecting against that harm. See McCall v. Wilder, 913 S.W.2d at 153.

Coln, 966 S.W.2d at 44 (Tenn.1998).

Under the facts of this case how can the landlord be charged with superior knowledge of the existence of the condition that caused Plaintiff to slip and fall? Defendant had never placed newspapers on the floor landing beyond the first step. Plaintiff had never seen newspapers on the floor landing beyond the first step before. There is no evidence of the existence of any substance on the steps or on or beneath the newspapers which could have caused them to be slippery. If the newspaper itself could be slippery, there is no proof that Defendant could somehow have superior knowledge over and above the knowledge of Plaintiff.

In this case, the proof must show negligence on the part of somebody as the mere happening of an accident provides no basis for liability. Brackman v. Adrian, 63 Tenn.App. 346, 472 S.W.2d 735, 739 (1971). If Defendant is to be charged with negligence under the facts of this case, such finding must be based on some inherently slippery condition within the newspaper itself. None of the Coin factors for applying the second part of the Restatement rule appear in this case. In Coin, the deviation between the surface of the brick pavers and the concrete sidewalk created a foreseeable probability of harm. Such factor does not appear in this case. In Coin, the city had actual knowledge of the deviation and was aware of the availability of corrective action. In this case, there is no proof that Defendant was aware of newspapers located on the landing below the steps.

Given the facts in this case that Defendant had no actual knowledge of the presence of the newspapers on the landing beneath the steps, and no evidence is presented that could establish constructive notice, coupled with the fact that the newspapers were in the plain and unobstructed view of Plaintiff, if negligence exists, it is clear that Plaintiff is guilty of at least 50% of fault for her own injuries. Eaton v. McLain, 891 S.W.2d 587 (Tenn.1994).

No duty having been established summary judgment was properly granted for Defendant. Even if a duty had been established it is clear under the facts that Plaintiff was responsible for no less than 50% of her own injuries. In either case, summary judgment was properly granted and the judgment of the trial court is affirmed. Costs of the cause are assessed to Plaintiff.

FRANK G. CLEMENT, JR., filed a separate dissenting opinion.

FRANK G. CLEMENT, JR., J.,

dissenting.

The majority has determined that summary judgment was proper because the plaintiff failed to establish that the defendant owed her a duty and that the plaintiff was responsible for no less that 50% of her own injuries. I respectfully disagree.

In the order granting the defendant’s motion for summary judgment, the trial court only listed four grounds upon which it based its decision. One of the four grounds relied on by the trial court was “that the newspapers were open and obvious.” As the majority noted, Tennessee restricted the “traditional open and obvious rule” in Coln v. City of Savannah, 966 S.W.2d 34 (Tenn.1998) and adopted Restatement (Second) of Torts, § 343A. Our Supreme Court concluded that attempting to analyze the duty issue simply by labeling some conditions “open and obvious,” without consideration of any surrounding circumstances, promoted arbitrary and inconsistent results. Id. at 42. Finding the open and obvious rule inconsistent with Tennessee cases, “which analyze duty by balancing foreseeability and gravity of harm with feasibility and availability of alternatives that would have avoided the harm,” our Supreme Court held:

We deem the Restatement approach to be the better reasoned and more persuasive analysis. The principles stated in the Restatement (Second) of Torts, § 343A relate directly to foreseeability and facilitate consideration of the duty issue. Whether the danger was known and appreciated by the plaintiff, whether the risk was. obvious to a person exercising reasonable perception, intelligence, and judgment, and whether there was some other reason for the defendant to foresee the harm, are all relevant considerations that provide more balance and insight to the analysis than merely labeling a particular risk “open and obvious.” In sum, the analysis recognizes that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on a defendant, despite its potentially open and obvious nature.

Coln, 966 S.W.2d at 42.

Though the plaintiffs testimony, which is set forth in her discovery deposition and in affidavits presented in opposition to the motion for summary judgment, can be interpreted as somewhat inconsistent, her testimony is not contradictory and the court should not ignore it. Pertinent parts of the plaintiffs testimony read:

I “I just didn’t see any papers until my foot hit them and flew out from under me.”
I “I was looking where I was going because I always did and I didn’t have any reason to think that it would be any different that day because [the defendant] had never had papers there before, ever.”
I “[The newspapers] were at the bottom of the steps on the garage floor.”
I “They just weren’t that visible until I hit them.”
■ “There had never been any papers at the bottom of the stairs before, ever.”
■ “I was looking where I was going, but no, I wasn’t looking to see if there was papers laying down there.”
■ When asked where the papers were, she answered, “under the last step going to the garage on the floor, under the last step.”
■ When asked why she didn’t see them she testified, “they were not that visible until my foot was hitting them.”

The defendant admitted frequently placing used newspapers at or near the bottom of the steps, though she denied having actual knowledge of newspapers being immediately under or in front of the last step. The defendant testified that she had placed newspapers at the bottom of the stairs for years in contemplation of recycling them. She admitted that she placed the old newspapers on the garage floor at the bottom of the steps and that it was her normal routine to place old newspapers at the bottom of the steps, on one side or the other “[j]ust however it is convenient.” When asked what she normally does with the newspapers when taking them out to the garage she testified, “I go down the steps and stack them close together, next to the staircase. There is a banister there and I just stack them on either side and start a pile of newspapers.”

In any negligence case, an issue is whether the defendant owed the plaintiff a duty, that is whether there was a duty in accordance with the foreseeability and gravity of harm, and the feasibility and availability of alternatives to prevent the harm. See Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998). That may include a duty to refrain from creating a danger. Id. at 39. The owner or occupier of land has a duty to exercise reasonable care to prevent injury to persons lawfully on the premises. Rice v. Sabir 979 S.W.2d 305, 308 (Tenn.1998). That duty to exercise reasonable care includes the responsibility to refrain from creating a danger that the owner should have been aware of through the exercise of reasonable diligence. Coln at 39.

The second part of Restatement rule § 343A states that the open and obvious rule applies unless the owner or possessor of the premises should anticipate the harm despite such knowledge or obviousness to the plaintiff. Restatement (Second) of Torts, § 343A. (emphasis added) Moreover, a danger to a plaintiff that was “open or obvious” does not ipso facto, relieve a defendant of a duty of care. Coln at 43. “[T]he duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm.” Coln at 43. The foreseeability and gravity of harm resulting from the defendant placing old newspapers at or near the bottom of stairs, as opposed to the alternatives of placing them elsewhere, is a question that should be decided by a jury for, as stated in Coin, “the question of whether a particular site or place or condition is unsafe or dangerous is a question of fact.” Coln at 45.

Summary judgment is appropriate “when there is no dispute over the evidence establishing the facts that control the application of a rule of law,” Byrd, v. Hall, 847 S.W.2d 208, 214 (Tenn.1993); however, the trial court must view the evidence, “in the light most favorable to the opponent of the motion.” Stone v. Hinds, 541 S.W.2d 598, 600 (Tenn.App.1976). Although summary judgment is a proper mechanism with which to evaluate the “duty” component of a negligence claim, Coln at 45-46, genuine issues of material fact exist which preclude summary judgment against plaintiffs negligence claim on the question of proximity of the old newspapers in relation to the bottom of the stairs and whether the risk of harm created by the defendant, who “stacked” old newspapers at or near the bottom of the stairway in the various manners she found convenient to her, was unreasonable despite the alleged open and obvious nature, and thus whether foreseeability and gravity of harm outweighed the burden imposed on the defendant to protect against that harm to establish a duty. In Coin the defendant homeowners had removed a “skimmer” from their pool deck thereby creating a dangerous opening which they did not elect to otherwise cover, they invited the plaintiff onto the deck and did not warn the plaintiff of the opening. The supreme court held that the trial court erred in granting summary judgment because there was a factual issue as to the risk of harm, whether it was unreasonable despite its open and obvious nature, and whether the foreseeability and gravity of the harm outweighed the burden imposed by protecting against that harm to establish a duty on the homeowner. As in both cases in Coin, it was error for the trial court to grant summary judgment.

      . Coln v. City of Savannah involved two separate premises liability cases. The first case involved the City of Savannah and whether the city owed a landowner duty for the alleged negligent installation of brick pavers in a sidewalk. The second case, Vancleave v. Markowski involved a pool deck and the facts referenced above. The two cases involved a common question to both-whether and to what extent the traditional open and obvious rule eliminating a landowner’s duty to one injured as a result of an open and obvious danger continues to be viable after the adoption of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (1992).


source: Caselaw Access Project

author: W. FRANK CRAWFORD, P. J., W.S., HOLLY M. KIRBY, Judge,

license: Public Domain

text:
    MID-CENTURY INSURANCE COMPANY v. Virginia WILLIAMS, et al.
    Court of Appeals of Tennessee, at Jackson.
    Oct. 12, 2004 Session.
    Jan. 11, 2005.
    Permission to Appeal Denied by Supreme Court Sept. 6, 2005.

      Ronald L. Harper and Alicia Y. Cox of Memphis for Appellant, Mid-Century Insurance Company.
    Lloyd R. Tatum of Henderson for Ap-pellees, Futrell and Spencer.
    Harriet S. Thompson of Bolivar for Ap-pellees, Virginia and Jerry Williams.
   OPINION

W. FRANK CRAWFORD, P. J., W.S.,

delivered the opinion of the court,

in which DAVID R. FARMER, J. joined and HOLLY M. KIRBY, J., filed a Partial Dissent.

Appellant, an insurance company, appeals from trial court’s judgment finding that the business pursuit and home care service exclusions to personal liability coverage in a homeowners insurance policy did not exclude coverage for accidental death of child who drowned in a bathtub while in the care of Appellee. Trial court found that Appellee’s arrangement to care for decedent was not a business pursuit or home care service within the meaning of the insurance contract, but rather was an informal type of babysitting motivated by love and/or favor for deceased child’s parents. Appellant contends that motivation by profit was irrelevant to whether Appel-lee was engaged in a business pursuit or home care service, that the evidence preponderates against the trial court’s fact findings, and that trial court erred in finding for Appellees. We reverse the judgment of the trial court, finding that the business pursuit and home care service exclusions do bar coverage under the homeowners policy.

Appellant, Mid-Century Insurance Company, appeals from trial court order finding that the business pursuit and home care service exclusions in a homeowners insurance policy did not exclude coverage for the accidental death of Patrick Juan Spencer (“Petey” ), an approximately one-year-old child who died by drowning in a bathtub in the home of Ms. Virginia Williams (“Ms. Williams”), who was caring for him at the time. Finding that the trial court erred in concluding that Ms. Williams was not conducting a business pursuit or home care service, we reverse the judgment of the trial court.

I. PROCEDURAL HISTORY

On September 23, 2002, Appellant, Mid-Century Insurance Company (“Mid-Century”), filed a Complaint for Declaratory Judgment seeking a determination that the homeowners insurance policy it issued to Appellees, Jerry and Virginia Williams (“the Williamses”), did not furnish personal liability coverage for the death of Patrick Juan “Petey” Spencer, who died accidentally in their home on October 4, 2000. On October 23, 2002, Appellees, Virginia and Jerry Williams, filed an Answer to Complaint for Declaratory Judgment. On December 12, 2002, Takila Futrell and Patrick Juan Spencer, the parents of Patrick Juan Spencer, filed a Motion to Intervene as Defendants in the declaratory judgment action and simultaneously filed a Complaint in Intervention. On September 9, 2003, the trial court entered an Order Granting Leave to Intervene as Party Defendants and allowed Ms. Futrell’s and Mr. Spencer’s Complaint in Intervention to serve as an answer on their behalf. A trial on the declaratory judgment action was held in the Circuit Court of Hardeman County on January 22, 2004. An Order was entered on January 27, 2004 finding that the business pursuit and home care service exclusions of the homeowner’s policy were inapplicable here. Mid-Century filed its timely Notice of Appeal on February 17, 2004.

II. FACTS

In late 1999, Virginia Williams and her husband, Jerry Williams, bought a house at 385 Dixie Hills Road in Bolivar, Tennessee. When they bought the house, the Williamses purchased a Special Form Homeowners Package Policy issued by Mid-Century Insurance Company under policy number 66918971129. Not long after the Williams moved into their house, Ms. Williams began serving as a caregiver for her four grandchildren (the children of her daughter, Regina) while her daughter was working. In connection with her childcare responsibilities for these grandchildren Ms. Williams received public assistance under the Aid for Families with Dependent Children (AFDC) program, through the Southwest Human Resource Agency. In August of 2000, Ms. Williams’s cousin, Daisy Futrell, contacted Ms. Williams and explained that her stepdaughter Takila Futrell (“Ms. Futrell”) needed a backup babysitter for her two children, Quisha Spencer, who was four years old, and Petey, who was almost one year old at the time. Ms. Williams agreed to watch Ms. Futrell’s children.

On the morning of October 4, 2000, Ms. Futrell dropped off Petey and Quisha at the Williams house on Dixie Hills Road. After Ms. Williams had taken a bath and had put two older children in the bathtub, she was summoned by children in the home and found Petey partly submerged in water in the bathtub. He died later at the Regional Medical Center in Memphis. Because Appellant challenges the credibility of Ms. Williams and the fact findings of the trial court, we will review Ms. Williams’s testimony at different stages in this litigation, and the trial court’s judgment, in some detail.

A. Ms. Williams’s March 11, 2002 deposition testimony

On September 27, 2001, Ms. Futrell and Patrick Spencer named the Williamses in a wrongful death lawsuit filed in the Circuit Court of Hardeman County, Tennessee. The plaintiffs alleged that Petey was left unattended by Mrs. Williams, and that he fell into a bathtub and drowned during the time when he was left unattended. The complaint further alleged that Mrs. Williams was negligent in failing to exercise ordinary care in supervising the minor child and that she failed to exercise reasonable and ordinary care in removing any attractive nuisance from the premises. The complaint also alleged that “it was the duty of the defendants to exercise reasonable and ordinary care in monitoring said child and keeping said child from endangering himself.” On March 11, 2002, Ms. Williams was deposed by the plaintiffs’ attorney, Lloyd Tatum. During that deposition, Ms. Williams gave an account of the events leading to Petey’s death and the nature of the childcare arrangement that existed between herself and Ms. Futrell.

When asked how many times she had cared for Petey in her household, Ms. Williams stated that he had been in her household every week since February or the first of March in 2001, and that she cared for him every day, Monday through Friday. Ms. Williams stated that the parents of her grandchildren did not pay her for childcare, but that Ms. Futrell paid her $60 a week. She stated that she arrived at the $60 a week figure because she charged $80 for each child. She stated that Ms. Futrell supplied the diapers needed for Petey. She stated that she cared for Qui-sha and Petey every day, and that she cared for Petey all day. When asked how Ms. Futrell paid her, Ms. Williams stated that she always paid her in cash and almost always paid her on Fridays. Ms. Williams stated that her fee for keeping the two children never varied: “[i]t didn’t go down, it didn’t go up.” Ms. Williams agreed that $60 a week “probably” amounted to close to a dollar an hour for keeping Petey and Quisha. Ms. Williams testified that she never had a written contract with Ms. Futrell. If Ms. Futrell did not need her to keep Petey and Quisha on a given day, she would deduct $10 from what Ms. Futrell owed her for that week. She testified that she fed the children breakfast, lunch, and snacks at her home. Ms. Williams testified that she did not consider her receipt of AFDC funds for keeping her grandchildren to be a way of making a profit. She testified that she loved Petey and would have kept him even if she had not gotten paid. Ms. Williams suggested that she may have lost money by keeping Petey and Quisha for $60 a week. She stated that she had never conducted a business in her home.

B. Ms. Williams’s August 27, 2003 deposition testimony

On September 23, 2002, Mid-Century Insurance filed a Complaint for Declaratory Judgment seeking a determination that the insurance policy it issued to defendants, the Williamses, did not furnish liability coverage for the accidental death of Petey. As part of this declaratory judgment action, on August 27, 2003, Mrs. Williams was deposed by Ronald Harper, counsel for Mid-Century. During her deposition by Mr. Harper, Ms. Williams once again gave an account of the events leading to Petey’s death and the nature of the childcare arrangement that existed between herself and Ms. Futrell.

Ms. Williams testified that Ms. Futrell was “not really” paying her to keep Petey and Quisha. She said that Ms. Futrell only paid her “[w]hen she [Ms. Futrell] felt like it.” Ms. Williams testified that $60 a week was only what she expected Ms. Futrell to pay, but that “she didn’t do that.... I’m just saying that $60 was what I would have liked to have received.” Ms. Williams explained that, in her prior deposition, she had only meant that she expected Ms. Futrell to pay $60 a week, not that she actually received it. On cross-examination by Ms. Futrell’s attorney, Ms. Williams explained that she was very upset during the March 11, 2002 deposition, and that she had difficulty talking about the situation. She testified that she now had a better recollection of events leading to Petey’s death due to counseling she was receiving with her pastor.

C. Ms. Williams’s January 22, 2004 trial testimony

The trial of the declaratory judgment action was held on January 22, 2004. This trial was the third time Mrs. Williams gave testimony about the events leading to Pe-tey’s death and the arrangement she had with Ms. Futrell to care for him. She testified that she did not keep Petey in her house every day. When confronted with her March 2002 deposition testimony in which she testified that she had kept Petey every day, Ms. Williams said she was “so upset, I don’t remember what I said or did.” Ms. Williams testified that she did not keep Petey in exchange for money from Ms. Futrell, stating, “[s]he didn’t pay me anything,” and later stating, “she didn’t pay me no money.” Ronald Harper, the attorney examining her, confronted her with the inconsistency between her statement that Ms. Futrell never paid her any money, and her prior statement (in the March 2002 deposition) that Ms. Futrell almost always paid her on Friday. Ms. Williams testified that Ms. Futrell paid her on Friday “[w]henever she paid me.” Ms. Williams was once again asked whether Ms. Futrell paid her $60 a week. In response, Ms. Williams testified, “I told her if she paid me anything, I would like to get $60 a week if I was keeping him a week.” Asked whether Ms. Futrell ever paid her $60 a week, Ms. Williams stated, “No, she didn’t. No.... I’m telling you she did not pay me no $60 a week.” Asked how she came up with the figure of $60 a week, Ms. Williams testified, “Where I got that from, it’s just like if I was going to keep your child, I would tell you ... you’re going to pay me $60 a week.... I don’t know whether you’re going to give it to me or not. I just expect for you to do it.”

D.The trial court’s judgment

At the conclusion of the trial on the declaratory judgment action, the court entered the following Order:

The Plaintiff, Mid-Century Insurance Company, has brought this declaratory action for the Court to determine if an exclusion in a homeowner’s policy the plaintiff issued to defendants is applicable. If so, Mid-Century’s policy does not cover a tragic death of a child that accidentally drowned at defendants’ home. The decedent, Patrick Juan Spencer, was in the home of the defendants when the child accidentally fell into a bathtub and drowned. The parents filed suit for negligence against the defendants. When the accident was reported to Mid-Century, the plaintiff denied coverage based on the following exclusion:
“We do not cover bodily injury ... which arises from or during the course of business pursuits of an insured ... or (4) results from the legal liability of any insured because of home care services provided to any person on a regular basis ... Regular basis means more than 20 hours per week.”
At the time of the incident, it is uncon-tradicted that Mrs. Virginia Williams kept her four grandchildren while her daughter was at work. Mrs. Williams was receiving $300.00 per month for these services from Southwest Resources, a Department of Human Services facility. It is also uncontradicted that these four grandchildren were living in Mrs. Williams’s home, along with her daughter. Mrs. Williams’s husband did not know that Mrs. Williams was receiving the payment from Southwest.
Before the Court can make further findings, Mrs. Williams’ testimony must be resolved. She gave two depositions, as well as her testimony at trial. Her testimony at trial was thoroughly contradicted by her statements made in her depositions. During her depositions, she made statements to the effect that she took care of decedent on a regular basis, charged a fixed fee for her services, and that the services began six to eight months prior to the accident. At trial, she contradicted those previous statements, claiming she was upset and could not remember her answers at the depositions. Initially, it would appear that she should be discredited as a witness. However, the Court, upon further reflection, is convinced that Mrs. Williams is overcome with grief for the death of this child. She appears to hold herself responsible for the accident. She had left the young child alone while two other children were bathing. It is the Court’s impression that Mrs. Williams’s statements, not only in her depositions, but also at trial, carry very little weight.
THEREFORE, THE COURT MAKES THE FOLLOWING FINDING:
(1) The decedent was not a family member of the Williams.
(2) That the arrangement for Mrs. Williams to look after the decedent began in late August and lasted until the decedent’s death.
(3) That the child would be dropped off at Mrs. Williams’s home, and would later be picked up by another babysitter.
(4) This arrangement with Mrs. Williams began when one of the mother’s other babysitters became unavailable at various times. Pri- or to this arrangement with Mrs. Williams, the mother depended upon three other babysitters.
(5) This arrangement lasted for six weeks.
(6) That the total amount of compensation received by Mrs. Williams was approximately $25. The money was given by the mother to defray expenses. This was not an arrangement for profit.
(7) That the decedent stayed with Mrs. Williams on or about seven times during this period.
(8) The mother never called Mrs. Williams in advance to inform her that she was bringing the child. She simply left the child at Mrs. Williams’s home early in the morning, until another babysitter could pick the child up.
Based on the foregoing, the Court concludes that the arrangement with Mrs. Williams and the decedent’s parents was an informal type of babysitting. This babysitting was not performed in conjunction with Mrs. Williams’s childcare of her four grandchildren for which she received compensation. Mrs. Williams was not motivated in making a profit by keeping the decedent; her motive was more from love and/or favor to decedent’s mother.
The plaintiff has failed to prove by a preponderance of the evidence that defendant’s relationship or arrangement with the decedent was part of a business pursuant to a home care service provided on a regular basis.
WHEREFORE, THE COURT FINDS in favor of the defendant, in that the exclusion of the home owners policy is not applicable.

It is the trial court’s judgment in favor of Appellees, the Williamses, that forms the basis of the present appeal.

III. ISSUE

Appellant presents the following issue for review:

Whether the trial court committed reversible error in awarding the Defendants/Appellees coverage under their Special Form Homeowner’s Insurance Policy, issued by Plaintiff/Appellant Mid-Century Insurance Company under policy no. 66918971129, for the wrongful death of a minor child in their home.

IV. STANDARD OF REVIEW

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the trial court’s findings, we must affirm, absent error of law. See Tenn. R.App. P. 13(d). We further note that when the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses in their manner and demeanor while testifying is in a far better position than this Court to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.App.1997). The weight, faith, and credit to be given to any witness’s testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. Id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997). However, in reviewing documentary proof such as deposition testimony, “all impressions of weight and credibility are drawn from the contents of the evidence, and not from the appearance of witnesses and oral testimony at trial.” Wells v. Tennessee Board of Regents, 9 S.W.3d 779, 783-784 (Tenn.1999). As a result, appellate courts may make an independent assessment of the credibility of the documentary proof it reviews, without affording deference to the trial court’s findings. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn.1988). This rule is premised on the fact that appellate courts are in just as good a position as the trial court to judge the credibility of witnesses who provided the proof. See Elmore v. Travelers Ins. Co., 824 S.W.2d 541, 544 (Tenn.1992).

V. ANALYSIS

In this appeal we must determine whether the trial court erred in concluding that Petey’s death was covered under the Williamses’ homeowner’s insurance policy. Mid-Century contends that there are two provisions in the homeowner’s policy that exclude coverage for Petey’s death, and contends that the trial court erred in finding that Appellant failed to show, by a preponderance of evidence, that Petey’s death occurred in circumstances under which coverage is excluded. The Williamses argue that Mid-Century failed to meet its burden of proof and that the trial court’s judgment rested upon a credibility determination and should not be disturbed by this court.

A. The exclusions from personal liability relied upon by Mid-Century in seeking to deny coverage for Petey’s death

Mid-Century Insurance Company contends that two exclusions contained in the homeowners policy purchased by the Williamses are applicable in excluding coverage for Petey’s death. The scope of personal liability coverage provided by the policy is set out in the following provision of the contract:

Coverage E — Personal Liability
We pay those damages which an insured becomes legally obligated to pay because of bodily injury or property damage resulting from an occurrence to which this coverage applies.
At our expense and with attorneys of our choice, we will defend an insured against any covered claim or suit. We are not obligated to pay defense costs, including attorneys’ fees of any claim or suit where you select an attorney not chosen by us because there is a dispute between you and us over coverage. We may investigate and settle any claim or suit that we consider proper. Our obligation to defend any claim or suit ends once we have paid our limit of liability.

(Emphasis in the original.) Both of the exclusions relied upon by Appellant are exclusions to this personal liability coverage. The first exclusion Mid-Century relies upon reads as follows:

Applying to Coverage E — Personal Liability
We do not cover:
1.Liability of an insured assumed under any contract or agreement relating to a business of an insured. Liability of persons other than an insured assumed under any contract or agreement, whether business or non-business, is not covered. Liability of any agreement between an insured and a corporation or association of property owners is not covered.

(Emphasis in the original.) The second exclusion Mid-Century relies upon reads as follows:

Applying to Coverage E and F — Personal Liability and Medical Payments to Others
We do not cover bodily injury or property damage which:
1. Arises from or during the course of business pursuits of an insured.
2. Results from the rendering or failure to render business or professional services.
3. ...
4. Results from the legal liability of any insured because of home care services provided to any person on a regular basis by or at the direction of:
a. any insured
b. any employee of any insured
c. any other person actually or apparently acting on behalf of any insured.
Regular basis means more than 20 hours per week.
This exclusion does not apply to:
a. home care services provided to the relatives of any insured;
b. occasional or part time home care services provided by any insured under 21 years of age.

(Emphasis in the original.) It is apparent that, under these exclusions, coverage for Petey’s death will be excluded if Ms. Williams’s liability for his death were:

1. “assumed under any contract or agreement relating to a business of an insured,”
2. “[arose] from or during the course of business pursuits of an insured,” or
3. “[r]esult[ed] from the legal liability of any insured because of home care services provided to any person on a regular basis by or at the direction of ... any insured.”

Having established the terms of the exclusions relied upon by Mid-Century, we now proceed to review the fact-findings that provided a basis for the trial court’s judgment.

B. The trial court’s findings of fact

A fiercely contested issue at trial was the precise nature of the child care arrangement between Ms. Williams and Ms. Futrell. Ms. Williams sought to characterize the arrangement as an informal one in which she cared for Petey as a favor to Ms. Futrell and maintained that she was paid only a small amount of money to reimburse her for her expenses. Confronted with earlier statements, particularly her statements in her March 11, 2002 deposition in which she seemed to suggest she was regularly paid the amount of $60 per week to care for Petey and Quisha, Ms. Williams explained that she had, in fact, only expected to be paid $60 a week and that Ms. Futrell never actually paid her that amount. She also repudiated her statements in her earlier testimony in which she had suggested that she had cared for Petey and Quisha on a daily basis. Ms. Williams accounted for these discrepancies by explaining that she had been very upset when giving the deposition testimony and could not recall what she had said then.

Mid-Century contends that the apparent discrepancies in Ms. Williams’s deposition and trial testimony are evidence of deliberate deception and collusion between herself and Petey’s parents. Mid-Century maintains that Ms. Williams changed her testimony after the March 11, 2002 deposition because she learned that Mid-Century was likely to deny any claim for Petey’s death under the business pursuit and home care exclusions to personal liability coverage in the Williams homeowners policy. Mid-Century urges this Court to conclude that the evidence preponderates against the trial court’s fact-findings.

As stated in Section IV, supra, we presume the trial court’s findings of fact to be correct and will not disturb them unless the evidence, as reflected in the record on appeal, preponderates against these findings of fact. In this case, we agree with Mid-Century that the evidence preponderates against the trial court’s fact-finding in this case, particularly the trial court’s finding that the child care arrangement under which Petey died was not an arrangement for profit. The record shows that Ms. Williams had received AFDC payments of approximately $300 a month for the childcare services she performed for her daughter Regina’s children. There was also a preponderance of evidence that Ms. Williams had received regular payments of $60 per week as compensation for keeping Petey and Quisha. Although the AFDC payments were not compensation for Ms. Williams’s caring for Petey and Quisha, we believe the AFDC payments, coupled with her expectation of compensation by Ms. Futrell for keeping Petey and Quisha, help to reveal Ms. Williams’s motive in performing such services. We conclude that the evidence preponderates against the trial court’s finding of fact that this arrangement was not conducted for profit, and we revise the trial court’s fact finding to reflect that Ms. Williams did conduct this arrangement for profit.

We also conclude that the evidence preponderates against the trial court’s fact finding concerning the duration and frequency of Ms. Williams’s caring for Petey. In her March 11, 2002 deposition testimony, Ms. Williams testified that the arrangement began in February or early March of 2001. She further testified, at different points in the same deposition, that she kept Petey Monday through Friday of every week. We conclude that this testimony is credible and that the evidence suggests strongly that Ms. Williams engaged in deliberate obfuscation in her later testimony in an effort to avoid the consequences of the business pursuit and home care service exclusions that were relied upon by Mid-Century in its declaratory judgment action. We revise the trial court’s findings of fact on the duration and frequency of the childcare arrangement under which Petey died; we conclude that the arrangement lasted approximately seven months, and that for much of that time Ms. Williams kept Petey all day, on a daily basis excluding Saturdays and Sundays.

While it is not inconceivable that Ms. Williams would be so upset at her March 2002 deposition that she was unable to give a coherent account of the events leading up to and including Petey’s death, there was such striking detail and specificity in her March 2002 testimony, concerning the payment arrangements, duration, and frequency of her child care arrangement with Ms. Futrell, that we conclude the trial court erred in failing to give this testimony great weight. The Williamses’ contention, that her statements had little or no credibility due to her emotional state, strikes this Court as implausible, given the highly detailed and nuanced account of the childcare arrangement that she gave in her testimony. The testimony of Ms. Futrell at trial does not, in our estimation, carry as much weight as Ms. Williams’s March 2002 testimony, given the relative proximity in time of Ms. Williams’s testimony to Petey’s tragic death.

C. Interpretation of the homeowners insurance policy

Our conclusion that Ms. Williams was motivated by profit in caring for Petey does not, in itself, resolve the question of whether coverage for Petey’s death is excluded from the homeowners policy at issue in this case. It is possible that Ms. Williams’s activities, even if she were motivated by profit, nevertheless did not constitute a business pursuit or home care service under the terms of the exclusions relied upon by Mid-Century, and therefore would not preclude coverage under the policy. We are required to interpret the contract to determine whether it applies to the facts of this case, in light of our conclusion that the evidence preponderates against some of the trial court’s findings of fact.

In construing insurance com tracts, this Court is obligated to attempt to determine the intent of the contracting parties, and because the policy was drafted by the insurance company, we must resolve any ambiguity and doubt in favor of the insured. NSA DBA Benefit Plan, Inc. v. Connecticut Gen. Life Ins. Co., 968 S.W.2d 791 (Tenn.App.1997). Where the language of an insurance policy is reasonably susceptible of two meanings, we are obligated to give the particular language the interpretation most favorable to the insured. Id. at 795. Ambiguity in a contract is doubt or uncertainty arising from the possibility of the same language being fairly understood in more ways than one. Id.

We conclude that the language of the contract is not ambiguous. Our task, then, is to determine whether the childcare arrangement under which Petey died constituted a business pursuit or home care service as provided in the exclusions relied upon by Mid-Century. In determining whether the childcare arrangement was a business pursuit, we are guided by the reasoning of another panel of this Court in the case of Allstate Ins. Co. v. Godsey, No. 03A01-9107CV243,1991 WL 261873 (Tenn.Ct.App. Dec. 13, 1991). In deciding whether a similar exclusion barred coverage for the loss of a boat, this court in Godsey cites with approval the majority rule that “a pursuit is a business only if (1) there is a motive for profit AND (2) it is continued or regular activity.” Id. at *3.

We have concluded that the childcare arrangement between Ms. Williams and Ms. Futrell was motivated by profit. We further conclude that it was a continued or regular activity, in view of our revision of the trial court’s fact findings concerning the duration and frequency of the arrangement. We therefore hold that the childcare arrangement at issue in this case was a business pursuit, and that the trial court erred in concluding that the business pursuit exclusion in the homeowners policy did not bar coverage in this case. We further conclude that the arrangement constituted a home care service within the meaning of the home care exclusion in the homeowners policy at issue here, and that the trial court erred in concluding that the home care exclusion did not bar coverage here.

VI. CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. We hold that both the business pursuit exclusion and the home care service exclusion bar coverage by the homeowners insurance policy at issue in this case. Costs are assessed to the Appellees, Virginia and Jerry Williams.

HOLLY M. KIRBY, J., dissents in part.

HOLLY M. KIRBY, Judge,

dissenting in part.

I write separately ■ to dissent in part from the majority opinion. I agree with the majority’s analysis of the policy at issue, but disagree with the majority’s conclusion that the evidence preponderates against the trial court’s finding that the childcare arrangement was not conducted for profit.

I certainly agree that the discrepancies in Ms. Williams’ testimony in her two depositions and her trial testimony “suggest ... deliberate obfuscation” and, if I were the trial judge, I would feel constrained to hold as the majority does, that Ms. Williams’ later testimony was an effort to avoid the consequences of the exclusions from coverage. I am not, however, the trial judge. Here, the trial court’s credibility determination is not based solely on the deposition testimony, ascertained from the transcript. It is also based on Ms. Williams’ testimony at trial, derived from the trial judge’s observation of her demeanor and manner in the courtroom. Given our standard of review for such a credibility determination, I feel compelled, albeit reluctantly, to affirm the trial court’s finding of fact that the childcare arrangement was not conducted for profit.

On this basis, I dissent in part from the majority opinion. In all other respects, I fully concur.

      . Because the decedent, Patrick Juan Spencer, is referred to throughout the record as "Petey,” we will refer to him as "Petey” in this opinion for the sake of clarity.

      . Although documents introduced into evidence at trial do not specify which children’s care the AFDC payments pertained to, testimony at trial persuades us that these payments pertained only to Ms. Williams care for Regina's children, not to Petey and Quisha.

      . At trial, Ms. Futrell testified that she paid Ms. Williams no more than $25 or $30 during the entire period from August of 2001 to the time of Petey's death. Ms. Futrell further testified that Ms. Williams kept Petey approximately seven times. Ms. Futrell refused to characterize her relationship with Ms. Williams as a business relationship, but said, "Mrs. Williams [was] doing me a favor." Balancing this testimony against the very different account Ms. Williams gave in her March 2002 deposition, we conclude that the evidence preponderates against Ms. Futrell’s account.


author: PATRICIA J. COTTRELL, J.,

text:
    Ed and Shelly LEWIS v. BEDFORD COUNTY BOARD OF ZONING APPEALS, et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Nov. 3, 2003 Session.
    Jan. 13, 2004.

      Andrew C. Rambo, Shelbyville, Tennessee, for the appellants, Ed Lewis and wife, Shelly Lewis.
    Ginger Bobo Shofner, John T. Bobo, Shelbyville, Tennessee, for the appellee, Bedford County Board of Zoning Appeals.
   PATRICIA J. COTTRELL, J.,

delivered the opinion of the court,

in which WILLIAM C. KOCH, JR., P.J., M.S., and WILLIAM B. CAIN, J., joined.

OPINION

The local board of zoning appeals denied the landowners’ application for a special exception or conditional use permit to allow them to develop and operate an RV park. After a remand for the board to clarify its minutes as to the grounds for the denial, the court determined that the grounds stated in the amended minutes provided a lawful basis for the denial. The trial court also determined that the record filed by the board was not sufficient for the court to determine whether the board’s decision was supported by material evidence. Because the trial court found that the burden to ensure an adequate record is prepared and filed lay with the landowners, the court affirmed the board’s denial of the permit. We reverse because in a common law writ of certiorari proceeding challenging a decision by a board or commission, the duty to prepare and transmit a record that includes a transcript of the evidence lies with the board or commission.

This appeal presents the question of whether a local zoning board is required to make a record of evidence presented before it so as to provide effective judicial review of a decision of the board, or whether that burden falls on the applicant before the board who later seeks such judicial review.

I. BACKGROUND

Edward and Shelley Lewis sought from the Bedford County Board of Zoning Appeals a conditional use permit (or special exception) to allow them to build and operate a private recreational facility, including a recreational vehicle (RV) park and a bed and breakfast on their land which was zoned for agricultural uses. The land was in the county’s A-l Zoning District, Agriculture-Forestry, which is described in the Zoning Resolution as “primarily areas where growth of an urban or non-rural nature is deemed undesirable.... ” The uses permitted as of right under Agriculture-Forestry zoning do not include the uses proposed by the Lewises. Consequently, the Lewises were required to obtain a special exception, also known as a conditional use permit, for each of the uses they proposed.

The County Zoning Resolution includes a list of special exceptions that can be allowed in an A-l Zoning District. The Zoning Resolution also sets out the procedure for the Board to use in deciding whether to grant a special exception. That portion of the resolution provides:

General Requirements. A conditional use permit (a special exception) shall be granted provided the Board finds that it:
a. Is so designed, located, and proposed to be operated so that the public health, safety, and welfare will be protected.
b. Will not adversely affect other property in the area in which it is located.
c. Is within the provision of “Special Exceptions” as set forth in this ordinance.
d. Conforms to all applicable provisions of this ordinance for the district in which it is to be located as well as the provisions cited in Section 8.060 and is necessary for public convenience in the location planned.

Zoning Resolution of Bedford County § 8.060(B).

The Board approved the bed and breakfast part of the request at its September 20, 2001 meeting. The RV park proposal was deferred at a subsequent meeting and was considered at the Board’s January 24, 2002 meeting. The Board denied the Lew-ises’ request to operate an RV park as a special exception. The minutes for that meeting contain the following notation reflecting the Board’s action:

3. Approve request by Ed and Shelly Lewis, 681 Rabbit Branch Rd. to run an RV Park based on the attached list of details (see below). (Donegan, Threet). Voice vote called for: Threet (yes), Yockey (no), Donegan (yes), Butler (no) Lee (no) — motion denied. Note — “No” votes were cast due to continued objections of immediate neighbors, (emphasis in original.)

The Lewises filed a petition for common law writ of certiorari seeking judicial review of the Board’s denial of their requested special exception. The record of the proceedings before the Board consisted of an affidavit of the Zoning Compliance Officer, a letter from the Lewises, a petition from neighbors opposing the RV park, plans for the park, a “List of Items Agreed,” a “List of Terms for Motion,” and the minutes of three Board meetings. There was no transcript or tape recording of these meetings and no statement of the evidence or proceedings that provided more detail than the minutes excerpt set out above.

The trial court remanded the matter to the Board “for the purpose of amending and approving the minutes of the Board’s meeting of January 24, 2002, for the purpose of accurately reflecting in the minutes which of the requirements set out in Zoning Resolution Section 8.060(B), if any, were found at the meeting ... not to have been met.” The court’s decision was based upon its determination that, according to the Zoning Resolution, the Board was required to grant the special exception if all four of the general requirements were met, but the minutes did not include enough information to determine what the grounds for denial of the exception actually were. . The court further observed that “continued objections of the immediate neighbors” was not a lawful basis for denying the exception, whereas an adverse effect on the adjoining property would be, because one of the general requirements for a special exception was the absence of such an effect.

The trial court also found that parties seeking review of an administrative decision through common law writ of certiorari have the burden of “seeing that the inferi- or tribunal makes a complete record and transfers all papers” to the reviewing court if the writ is issued, citing Grandt v. Trousdale County Commissioners and Trousdale County Board of Zoning Appeals, No. 01A019001-CH-00034,1990 WL 73919, at *4 (Tenn.Ct.App. June 6, 1990) (no Tenn. R.App. P. 11 application filed). However, the trial court also found that the Board had the obligation to take and preserve, adequate minutes or otherwise memorialize their actions, stating, “To allow a zoning board to keep inadequate minutes and thereby deny any court review of board actions would indeed deny due process.”

The remand specifically did not include taking additional evidence or re-considering the application; it was for the limited purpose of adopting a set of minutes that accurately reflected the basis for the Board’s denial of the application. After remand, the Board, at its November 14, 2002, meeting, according to the minutes of that meeting “accept[ed] the entire court order ... as part of the minutes” and amended the January 24, 2002 minutes on the item of the Lewises’ request, as follows:

Yockey — I voted “no” based on Section 8.060 B.b. that the request would adversely affect other property in the area in which it is located and on Section 8.060 B.c. that the request is not within the provision of “Special Exceptions” as set forth in this ordinance.
Butler — I voted “no” based on Section 8.060 B.b. that the request would adversely affect other property in the area in which it is located.
Threet — I voted “yes” based on Section 8.060 B.b. that all four criteria were met, basing my vote that the request might fall under Section 4.041 C. 16.
Donegan — I voted “yes” based on Section 8.060 B. That all four criteria were met.
Lee — I vote “no,” that three of the criteria in Section 8.060 B. were met but not in Subsection b.

The trial court subsequently found that the amended minutes reflected that the Board had lawful grounds for refusing to grant the exception, i.e., that the proposed RV park would adversely affect other property in the area, and, therefore, that the Board had not exceeded its authority in denying the special exception.

With regard to the issue of whether there was material evidence in the record to support the Board’s conclusions, the trial court held that the Lewises had the burden of providing a record sufficient to determine that question, that the Lewises failed to meet that burden, and, consequently, the court was required to conclude that there was material evidence to support the Board’s conclusions. The trial court dismissed the case. The Lewises appeal from that dismissal.

II. Judicial Review of BoaRd Decisions

The proper vehicle for judicial review of a decision of a board of zoning appeals is the common law writ of certiorari. McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn.1990); Lafferty v. City of Winchester, 46 S.W.3d 752, (Tenn.Ct.App.2001); 421 Corp. v. Metropolitan Gov’t of Nashville, 36 S.W.3d 469, 474 (Tenn.Ct.App.2000); Hoover v. Metropolitan Bd. of Zoning Appeals, 955 S.W.2d 52, 54 (Tenn.Ct.App.1997).

The issuance of the writ is an order to the lower tribunal, here the Board, to file its record so that the court can determine whether the petitioner is entitled to relief. Willis v. Tenn. Dep’t of Correction, 113 S.W.3d 706, 712 (Tenn.2003); Clark v. Metropolitan Gov’t of Nashville and Davidson County, 827 S.W.2d 312, 316 (Tenn.Ct.App.1991); Puckett v. Broome, 53 Tenn.App. 663, 667, 385 S.W.2d 762, 764-65 (1964). The scope of judicial review under the common law writ of certiorari is narrow and is limited to whether the inferior board or tribunal has exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently. Willis, 113 S.W.3d at 712; Petition of Gant, 937 S.W.2d 842, 844-45 (Tenn.1996) (quoting McCallen, 786 S.W.2d at 638, citing Hoo ver Motor Exp. Co. v. Railroad & Pub. Util. Comm’n., 195 Tenn. 593, 604, 261 S.W.2d 233, 238 (1953)).

The scope of judicial review under the common law writ of certiorari also includes a determination of whether the board acted without material evidence to support its decision. Lafferty, 46 S.W.3d at 759; Hoover, 955 S.W.2d at 54; Hoover v. Metropolitan Bd. of Housing Appeals, 936 S.W.2d at 950, 954 (Tenn.Ct.App.1996); Hall v. Shelby County Retirement Bd., 922 S.W.2d 543, 545 (Tenn.Ct.App.1995); Davis Group (M.C.), Inc., v. Metropolitan Gov’t of Nashville and Davidson County, 912 S.W.2d 178, 180 (Tenn.Ct.App.1995); Hemontolor v. Wilson County Bd. of Zoning Appeals, 883 S.W.2d 613, 616 (Tenn.Ct.App.1994); Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t of Nashville and Davidson County, 842 S.W.2d 611, 619 (Tenn.Ct.App.1992). Some cases list the material evidence requirement as a separate ground for judicial review and relief, while others consider it as an indication that the board or commission did not act arbitrarily or illegally.

Thus, while judicial review under the common law writ does not involve review of the intrinsic correctness of the lower tribunal’s decision, Willis, 113 S.W.3d at 712; Robinson v. Traughber, 13 S.W.3d 361, 364-5 (Tenn.Ct.App.2000); Turner v. Board of Paroles, 993 S.W.2d 78, 81 (Tenn.Ct.App.1999), and a reviewing court may not reweigh the evidence presented to the board, Gallatin Hous. Auth. v. City of Gallatin, 868 S.W.2d 278, 280 (Tenn.Ct.App.1993); Hoover v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn.Ct.App.1996), a court is required to review the record of the board’s proceeding to determine whether there is material evidence to support the board’s conclusion.

When the evidentiary foundation for a local zoning board decision is challenged using the common-law writ, the sufficiency of the evidence is a question of law. Hence, the courts must review the record de novo without presuming that the board’s finding is correct. This review does not permit the courts to reweigh the evidence or to scrutinize the intrinsic correctness of the decision. It envisions that the court will review the record independently to determine whether it contains “such relevant evidence that a reasonable mind might accept as adequate to support a rational conclusion.” A decision by a local zoning board will be considered arbitrary only when there is no evidence in the record to support it.

Lafferty, 46 S.W.3d at 759 (citations omitted).

The trial court herein found the record filed in the court was insufficient for it to determine whether material evidence was presented which supported the Board’s decision. We agree because there is no transcript or other record of the evidence presented to the board. Thus, neither the trial court nor this court can determine whether the board’s conclusion that the proposed RV park would adversely affect other property in the area is based upon material evidence presented to the board. The trial court determined that the burden to provide a sufficient record lay with the Lewises. We disagree because a board or commission is required to make and preserve a record sufficient to allow effective judicial review.

III. Procedure in Review of Boards and Commissions

The procedure to be used in a common law writ of certiorari action to review the decision of a board or commission, including a local zoning board, is set out in Tenn.Code Ann. §§ 27-9-101 et seq. Fallin v. Knox County Bd. Of Comm’rs, 656 S.W.2d 338, 341 (Tenn.1983); Fairhaven Corp. v. Tennessee Health Facilities Comm., 566 S.W.2d 885, 886 (Tenn.Ct.App.1976) (citing Fentress County Beer Bd. v. Cravens, 209 Tenn. 679, 356 S.W.2d 260 (1962); Hoover Motor Express Co., 195 Tenn. at 593, 261 S.W.2d at 233) (the procedural framework for review under both the common law and statutory writs appears in Ch. 9 of Title 27); see also, Cantrell, Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Mem. St. Univ. L. Rev 19,19 (1977) (Chapter 9 of Title 27 provides the procedural framework for review under both the common-law and statutory writs of certiorari but does not affect the availability of either writ). Thus, these procedural statutes apply to writ of certiorari proceedings challenging decisions by the Board of Zoning Appeals. Lions Head Homeowners’ Assoc. v. Metropolitan Bd. of Zoning Appeals, 968 S.W.2d 296, 299 (Tenn.Ct.App.1998).

That set of statutes provides the answer to the question of whose responsibility it is to prepare a record sufficient for judicial review:

Immediately upon the grant of a writ, the board or commission shall cause to be made, certified and forwarded to such court a complete transcript of the proceedings in the cause, containing also all the proof submitted before the board or commission.

Tenn.Code Ann. § 27-9-109(a).

As the statute clearly states, the Board had the responsibility to prepare a transcript of its hearing on the Lewises’ request that included the evidence presented to the Board. Consequently, we must reverse the judgment of the trial court.

Where the evidence before the board has been preserved and filed with the reviewing court but the court finds that the board or commission’s decision is unsupported by material evidence, the decision is generally reversed. Davis Group, 912 S.W.2d at 183; Father Ryan v. City of Oak Hill, 774 S.W.2d 184, 192 (Tenn.Ct.App.1988). “Where the evidence has been preserved but the board or commission has not exercised its responsibility in accordance with legal requirements, a remand to the board for a hearing based upon the existing record of the evidence is appropriate. Hoover, Inc., 955 S.W.2d at 55. In the situation before us, we conclude that the proper remedy is to vacate the order of the Board denying the Lewises’ permit and a remand to the Board to take evidence and reach a decision, based on that evidence, that is capable of effective judicial review.

Consequently, we reverse the decision of the trial court affirming the Board’s decision, vacate the Board’s decision, and remand the matter to the Board for a new hearing in which the Board will keep a record that complies with Tenn.Code Ann. § 27-9-109(a). Costs of this appeal are taxed to the appellee, the Bedford County Board of Zoning Appeals.

      .
      Anyone who may be aggrieved by any final order or judgment of any board or commission functioning under the laws of this state may have the order reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.
      Tenn.Code Ann. § 27-9-101.

      . In fact, the statute of limitations found in Tenn.Code Ann. § 27-9-102 has been used by local zoning boards to obtain dismissal of a petition for writ of certiorari that did not meet the timeliness requirements. Shafer v. City of Dickson, No. M2000-03175-COA-R3-CV, 2002 WL 1787952, at *5 (Tenn.Ct.App. Aug. 2, 2002) (no Tenn. R.App. P. 11 application filed); Kielbasa v. Wilson Co. Bd. of Zoning Appeals, No. M1999-01155-COA-R3-CV, 2000 WL 546367, at *2 (Tenn.Ct.App. May 5, 2000) (no Tenn. R.App. P. 11 application filed); Levy v. Bd. of Zoning Appeals, No. M1999-00126-COA-R3-CV, 2001 WL 1141351, at *4-5 (Tenn.Ct.App. Sept. 27, 2001) (no Tenn. R.App. P. 11 application filed).