Effective Preventive Measures Defeat Constructive Notice: Sixth Circuit Affirms No Duty Absent Foreseeability of a “General Condition” in Tennessee Premises Liability

Introduction

In Patrick Penn & Alice Penn v. Wilderness Development Corporation (6th Cir. Oct. 24, 2025) (not recommended for publication), the Sixth Circuit affirmed summary judgment for a Tennessee waterpark operator, holding that the park owed no duty of care under Tennessee premises liability law where a patron was allegedly cut by glass. The court concluded that plaintiffs failed to create a triable question that the owner either caused/created the hazard or had constructive notice of a reasonably foreseeable “general condition.”

The decision clarifies two recurring points in Tennessee premises liability suits:

When a third party or unknown source creates the hazard, “negligent maintenance” cannot be used to shift the case into the “caused or created” pathway; the correct framework is notice (actual or constructive).
Constructive notice based on a “general or continuing condition” requires reasonable foreseeability in the relevant location; robust, consistently effective preventive measures can defeat foreseeability as a matter of law.

Plaintiffs Patrick and Alice Penn sued Wilderness Development Corporation, owner of Soaky Mountain Waterpark, after Patrick suffered a foot laceration discovered shortly after leaving a wave pool. Although Alice had discarded two pieces of glass found near the pool entrance area, no one saw Patrick step on glass, and the park’s protocols barred most glass and included pre-opening and post-closing inspections. The district court granted summary judgment on the duty element; the Sixth Circuit affirmed.

Summary of the Opinion

The Sixth Circuit (Nalbandian, J., joined by Cole and Kethledge, JJ.) reviewed de novo and affirmed summary judgment. The court held:

No reasonable jury could find that Wilderness “caused or created” the broken glass. There was no evidence how, when, or by whom the glass came to be present, and juries cannot speculate on creation or causation.
Constructive notice failed because broken glass in the park was not reasonably foreseeable as a “general or continuing condition,” given Wilderness’s effective anti-glass regime: prohibitions and signage, bag checks, and daily inspections. Employee discovery of glass “only once” and the absence of any guest reports supported an “isolated or random” event, not a foreseeable condition.
Expert testimony about industry inspection intervals was irrelevant to the duty analysis in the absence of foreseeability; duty is the threshold question, distinct from breach or standard of care.
Because foreseeability was not shown, the court did not weigh the magnitude of harm against the burden of prevention. Foreseeability is a necessary predicate to duty under Tennessee law.

Factual and Procedural Background

The Penns visited Soaky Mountain Waterpark in summer 2021. Soon after entering the wave pool, Alice noticed two one-inch, thick pieces of clear glass a few feet from the pool. She saw no blood, scanned for other debris, discarded the shards, and joined Patrick in the pool. About twenty minutes later, after leaving the pool and sitting “for a while,” Alice noticed blood where Patrick had stepped; he had a foot cut but did not feel it due to diabetic neuropathy. No one saw him step on glass or another hazard. A treating physician opined the wound looked consistent with a glass cut.

Wilderness’s measures included a near-total glass prohibition (with limited exceptions like eyeglasses and phones), entrance signage, bag checks, pre-opening and post-closing park sweeps with checklists, and lifeguards tasked with cleanliness during operating hours. Employees had found broken glass inside the park only once; no guest had ever reported glass.

Plaintiffs sued for negligence under a premises liability theory. Their expert, Dr. Osinski, testified that industry practice is to cover the area every ten minutes for hazards. Wilderness moved for summary judgment, contending plaintiffs could not establish duty or causation. The district court granted summary judgment on the duty element alone. Plaintiffs appealed; the Sixth Circuit affirmed.

Detailed Analysis

Precedents Cited and Their Influence

Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004). Blair governs Tennessee premises liability’s two distinct avenues to duty: (1) the owner caused or created the condition, or (2) the condition was created by someone else and the owner had actual or constructive notice. Blair rejects bootstrapping “negligent operation” into “creation” when third parties contributed; the correct inquiry becomes notice, often constructive notice via a “pattern of conduct, recurring incident, or general/continuing condition.” The panel relies on Blair to reject plaintiffs’ attempt to treat alleged “negligent maintenance” as “creation.”
Trentham v. Mid-Am. Apartments, LP, 705 S.W.3d 151 (Tenn. 2025). Trentham reiterates Tennessee’s elements of negligence and clarifies constructive notice doctrine. A plaintiff need not always show prior incidents or hazard duration; however, foreseeability remains necessary to constructive notice of a “general or continuing condition.” The Sixth Circuit uses Trentham to emphasize that foreseeability is essential and that duty is evaluated under the constructive notice rubric when third parties may be responsible.
McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891 (Tenn. 1996). McClung recognizes that duty involves a balance between foreseeability, magnitude of harm, and burden of prevention. The panel cites McClung to explain that foreseeability, while not alone sufficient, is a threshold requirement; without it, the balancing need not be reached.
Katz v. Sports Authority of Metro. Gov’t of Nashville & Davidson County, No. M2016-01874-COA-R3-CV, 2017 WL 3741346 (Tenn. Ct. App. Aug. 29, 2017). Katz underscores “location specificity.” Even with multiple spills arena-wide, only a handful occurred near the plaintiff’s fall, insufficient to show a recurring condition in that location. The Sixth Circuit analogizes: even if glass could appear at the entrance or somewhere, it was not reasonably foreseeable inside the park given the robust entrance controls and historical record.
Tinsley v. Wal-Mart Stores, Inc., 155 F. App’x 196 (6th Cir. 2005); Bowling v. Wal-Mart Stores, Inc., 233 F. App’x 460 (6th Cir. 2007); Martin v. Wal-Mart Stores, Inc., 159 F. App’x 626 (6th Cir. 2005). These Sixth Circuit applications of Blair reinforce that recurring conditions must be demonstrated in the specific area at issue; generalized store-wide risk is not enough.
Wolfe v. Felts, No. W2013-01995-COA-R3-CV, 2014 WL 2462885 (Tenn. Ct. App. May 29, 2014). Plaintiffs invoked Wolfe to suggest a broader concept of “caused or created” via negligent maintenance. The panel explains that, to the extent Wolfe can be read expansively, it is inconsistent with Blair and Trentham. Even under Wolfe, speculation about when/how the condition arose is not permitted. With no proof how long the glass was present or how it got there, Wolfe offers no safe harbor.
Martin v. Washmaster Auto Ctr., U.S.A., 946 S.W.2d 314 (Tenn. Ct. App. 1996). Establishes that juries may not speculate about causation when no evidence shows how a condition arose—supporting the rejection of plaintiffs’ “creation” theory here.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Articulates the summary judgment standard: courts draw reasonable inferences for the non-movant but do not weigh evidence; a dispute is “genuine” only if a reasonable jury could find for the non-movant under the governing burden of proof. The panel applies Anderson to hold that plaintiffs’ evidence would require speculation.

Legal Reasoning

1) “Caused or Created” Pathway Fails

Tennessee law permits plaintiffs to establish a landowner’s duty if “the condition was caused or created by the owner, operator, or his agent.” Plaintiffs lacked any evidence how the glass appeared or how long it was present. Neither plaintiff nor any witness observed the glass being deposited; Patrick did not feel a cut when it occurred; the physician’s opinion that the wound is “consistent with” glass does not connect the glass to Wilderness. Under Martin v. Washmaster, juries cannot speculate in such evidentiary voids.

Plaintiffs argued that negligent maintenance itself “creates” the hazard (citing Wolfe). The panel rejects this as inconsistent with Blair and Trentham: where a third party or unknown force likely created the condition, negligent operation or inaction cannot be repackaged as “creation.” The correct inquiry shifts to actual or constructive notice. Even if Wolfe’s broader approach were credited, it disallows speculation about how/when the hazard arose—precisely the plaintiffs’ gap here.

2) Constructive Notice via “General or Continuing Condition” Fails for Lack of Foreseeability

Plaintiffs did not argue duration-based notice; they invoked the “general or continuing condition” route. The court assumes arguendo that this route could apply but holds there was no evidence making glass in the waterpark reasonably foreseeable:

Wilderness prohibited glass, posted entrance signage, and conducted bag checks.
It conducted pre-opening and post-closing sweeps (with checklists) and deployed lifeguards to monitor during hours.
Employees had found glass inside the park only once, and no guest had reported glass.

Against this record, the panel characterizes the glass as an “isolated or random event.” Tennessee law requires more than randomness to infer constructive notice. The foreseeability determination is location-sensitive: even if glass at the entrance might be conceivable, the park’s effective front-end controls made glass inside the park not reasonably foreseeable. Katz’s location-specific analysis supports this conclusion.

Plaintiffs’ further contentions fail:

“No need to show prior incidents or duration”: Correct in the abstract (Trentham), but foreseeability remains essential. Plaintiffs still had to show that glass in the park was reasonably foreseeable as a general condition; they did not.
“Balancing harm vs. burden” (McClung): Without foreseeability, the balancing is not triggered. Foreseeability is a necessary predicate to duty (Trentham).
“This ruling rewards cutting corners”: To the contrary, the court found foreseeability lacking because the park’s measures were effective. Less effective measures could change the foreseeability analysis.

3) Expert Standard-of-Care Testimony Does Not Establish Duty

Plaintiffs’ expert opined that high-traffic waterparks should have coverage every ten minutes. The court holds this is irrelevant to the threshold duty inquiry when premised on constructive notice. Duty is a legal question; without foreseeability of the general condition, no duty arises, regardless of industry norms. Expert testimony might bear on breach if duty exists, but it cannot conjure duty in the absence of foreseeability.

Impact and Implications

Immediate Doctrinal Impact

Clarifies in the Sixth Circuit’s application of Tennessee law that “effective preventive measures” can negate foreseeability and thus defeat constructive notice at the duty stage.
Reaffirms that “negligent maintenance” cannot substitute for proof of creation when a third party or unknown source likely introduced the hazard; plaintiffs must proceed under a notice theory (Blair/Trentham).
Underscores location-specific foreseeability: a recurring risk must be shown in the area of the incident, not merely property-wide or at entry points (Katz, Tinsley, Bowling, Martin).
Separates duty from breach: industry standards and inspection intervals are not relevant to duty absent foreseeability of the hazard as a general condition.

Practical Litigation Effects

For defendants (retailers, amusement operators, aquatic facilities):

Well-documented, consistently enforced preventive protocols (e.g., prohibitions, screening, documented inspections) can be dispositive at summary judgment on duty/constructive notice.
Maintain written records (checklists, training logs) and ensure that daily practices match written policy; consistent “clean” history in the relevant location is powerful.
Entrance controls matter: Where hazards tend to originate with guests, front-end barriers (bag checks, prohibitions) strongly undermine foreseeability claims inside the premises.

For plaintiffs:

Gather location-specific evidence of recurrence: prior similar incidents in the same area, employee reports, maintenance logs, or testimony showing lax enforcement or frequent occurrences.
Bridge the creation gap: if pursuing “caused or created,” produce evidence that the owner or its agents actually introduced the hazard (e.g., maintenance activities, employee conduct) to avoid speculation concerns.
Use expert testimony strategically: experts can help on breach or adequacy of precautions, but without independent evidence of foreseeability, they will not carry the duty question.
Preservation: act promptly to secure surveillance or incident data; here, Wilderness no longer had relevant video when contacted a month later, and no spoliation issue was litigated.

Sector-Specific Implications

Amusement and waterpark operators benefit from robust anti-glass policies; if effectively implemented and historically successful, such regimes can preclude a finding of constructive notice for glass hazards.
Courts are receptive to the idea that exceptional risks (barefoot environments) do not automatically make hazards reasonably foreseeable when preventive measures are effective and the record shows rarity.

Complex Concepts Simplified

Duty vs. Breach: Duty asks whether the law obligates the defendant to take care at all under the circumstances—a legal threshold. Breach asks whether the defendant’s conduct fell below the standard of care—a factual question for a jury if duty exists.
“Caused or Created” vs. “Notice”: If the owner/its agents introduced the hazard, duty attaches without notice. If someone else did (e.g., another patron), duty arises only if the owner had actual or constructive notice before the accident.
Constructive Notice via “General or Continuing Condition”: Even if the hazard is transient, a plaintiff can show the owner should have anticipated it because it recurs or is part of a broader pattern—provided it is reasonably foreseeable in the relevant location.
Foreseeability as Gatekeeper: In Tennessee, foreseeability is necessary to establish duty, especially under constructive notice. Without it, courts do not proceed to balance harm vs. burden or to breach.
Summary Judgment Standard: Courts accept the non-movant’s evidence and draw reasonable inferences in their favor, but cannot let a case go to a jury if the claim requires speculation rather than reasonable inference from evidence.

Conclusion

The Sixth Circuit’s decision in Penn v. Wilderness Development Corporation reinforces the architecture of Tennessee premises liability law:

“Creation” requires evidence tying the defendant to the hazard; mere inaction does not transform third-party hazards into owner-created conditions.
Constructive notice via a “general or continuing condition” depends on reasonable foreseeability in the place of injury; consistent, effective preventive measures can negate foreseeability and thus duty as a matter of law.
Expert opinions about industry inspection cadence go to breach, not duty; without foreseeability, they cannot establish duty.

Although non-precedential, the opinion offers a crisp roadmap for evaluating duty in Tennessee premises cases and a practical lesson: diligent, documented preventive protocols may resolve litigation at summary judgment by demonstrating that the alleged hazard was an isolated event, not a reasonably foreseeable general condition.