IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 9, 2003 Session
DANA FRIEDENSTAB, ET AL. v. MARTHA SHORT
Appeal from the Circuit Court for Williamson County
No. II-01386 Donald P. Harris, Judge
No. M2003-00603-COA-R3-CV - Filed May 27, 2004
The plaintiffs bring this appeal from the trial court’s summary judgment in favor of the defendant.
We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed as Modified
WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, joined.
FRANK G. CLEMENT , JR., filed a separate dissenting opinion.
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.
OPINION
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. Friedenstab’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, i.e., 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 Plaintiff’s 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).
The 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 Coln 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 Coln 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
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determined whether a defendant has conformed to the applicable standard of care,
which is generally reasonable care under the circumstances. “Ordinary, or reason-
able, 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).
Coln 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, 472 S.W.2d 735, 739 (Tenn.Ct.App.
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., 207 S.W.2d
353 (Tenn.Ct.App. 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.
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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 Friedenstab 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 Friedenstab 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.
....
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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?
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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.
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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?
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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 feasability 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.
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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, 118
S.W.2d 213 (Tenn. 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, 39 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.
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Illinois Central Ry. Co. v. Nichols, 118 S.W.2d at 217 (Tenn.Ct.App. 1938).
As stated by the supreme court in Gentry v. Taylor, 185 S.W.2d 521 (Tenn. 1945), “as well
expressed by Mr. Salmond (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.’ ” 185 S.W.2d 521 at 525 (Tenn. 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 Coln would, for all practical purposes, eliminate the line of demarcation, the adoption
by the majority in Coln 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 Coln, 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
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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 case 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
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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, 118 S.W.2d 213, 217-18 (Tenn.Ct.App. 1938).
Section 343A of the Restatement can be divided into two parts with the first part asserting,
“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.” 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 Coln, 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. 1955); Park v.
Sinclair Refining Co., 142 S.W.2d 321 (Tenn.Ct.App. 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 pre-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 Coln, 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
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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, 472 S.W.2d 735, 739
(Tenn.Ct.App. 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 Coln factors for applying the second part of the Restatement rule appear in this case. In Coln,
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 Coln, 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.
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WILLIAM B. CAIN, JUDGE
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