LUCY L. BOND, )
) Davidson Circuit
Plaintiff/Appellant, ) No. 96C-4542
)
VS. )
)
BELLE MEADE FUND PARTNERS, ) Appeal No.
L.P.; BRANCH PROPERTY, L.P., ) 01A01-9802-CV-00059
BRANCH PROPERTY LTD. )
F L E
I D
PARTNERSHIP, )
)
Defendants/Appellees. )
O c to b e r 1 4 , 1 9 9 8
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
C e c il W . C r o w s o n
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTYC o u r t
A p p e lla t e
AT NASHVILLE, TENNESSEE C le r k
HONORABLE THOMAS W. BROTHERS, JUDGE
Keith Jordan, BPR #3000
222 Second Avenue, North
Suite 360-M
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT
M. Bradley Gilmore, #13804
PARKER, LAWRENCE, CANTRELL & DEAN
200 Fourth Avenue North
Fifth Floor
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANTS/APPELLEES
REVERSED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
WILLIAM C. KOCH, JR., JUDGE
WILLIAM B. CAIN, JUDGE
LUCY L. BOND, )
) Davidson Circuit
Plaintiff/Appellant, ) No. 96C-4542
)
VS. )
)
BELLE MEADE FUND PARTNERS, ) Appeal No.
L.P.; BRANCH PROPERTY, L.P., ) 01A01-9802-CV-00059
BRANCH PROPERTY LTD. )
PARTNERSHIP, )
)
Defendants/Appellees. )
OPINION
The plaintiff sued for injury suffered when she stepped into a hole in the asphalt surface
of a parking lot provided for customers of Kroger Company. Kroger was dismissed by nonsuit,
and the remaining defendants were dismissed by summary judgment. Plaintiff appealed and
presented the following issue:
I. Whether a genuine issue of material fact has been
raised by the plaintiff/appellant, so as to warrant this cause to
be tried on its merits.
The appellees-defendants presented the following issues:
1. Whether the trial court properly granted summary
judgment to the defendants based on the plaintiff’s failure,
after adequate time for discovery, to establish the existence of
any evidence that the defendants created or had actual or
constructive notice of an alleged defective condition on the
premises that caused Ms. Bond’s fall.
2. Whether the trial court abused its discretion in
excluding the affidavits of James Vance under Tenn.R.Evid.
702 and 703.
Pertinent portions of the complaint are:
That on or about December 19, 1995, LUCY L.
BOND, traveled to the Kroger Co. Grocery store located at
4500 Harding Road, Nashville, Davidson County, Tennessee.
That while stepping out of her vehicle, she fell as a result of
a sizeable hole in the pavement of the parking lot, resulting in
a fractured ankle and other serious and complicated medical
problems.
That the hole in the parking lot was a hazardous,
dangerous condition unknown to the Plaintiff and is indicative
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of failure on the part of the Defendants to properly maintain
the premises for patrons of the store.
That the Defendants knew or should have known of
the dangerous and hazardous conditions of the parking lot, but
failed to properly maintain and repair such.
The motion for summary judgment states:
The undisputed facts establish that the defendants
neither created the condition nor had actual or constructive
notice of it. The undisputed facts further establish that before
the date of the plaintiff’s accident, the defendants exercised
reasonable care in maintaining the parking lot.
Evidence submitted in support of the motion consisted of the following:
1. The deposition of plaintiff containing the following:
Q. And when you got out of your van, you got out
the driver’s side?
A. Yes.
----
Q. Did you step down right into the hole?
A. Yes. Because when I stepped down into the
hole, that first step I was into the hole and I think I was on the
ground.
----
Q. Can you describe the hole that you fell in?
A. I mean, it wasn’t like a big crater hole. It was
like a -- I mean, it was just a -- like it was not smooth. It was
just a hole. You know, it was --
Q. Do you know how deep it was?
A. Two or three inches.
----
Q. My question is: Do you remember looking at
the hole right after you fell?
A. No.
2. The affidavit of defendants’ manager that, every 3 or 4 weeks, she inspected the
parking lot for defects, including potholes and had any discovered defects repaired.
3. An “on site maintenance person” was instructed to inspect the parking lot daily
for defects and to repair defects found.
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4. A commercial sweeping service swept the lot daily. If this service had reported
any defects they would have been repaired immediately.
5. Business records of the defendants show that the lot “underwent a major
improvement in 1988, potholes were patched and the pavement was resealed in 1994.
6. “Parking lot repair” was performed on February 10, 1995, “asphalt repair” was
performed on May 24, 1995, “seal and stripping lots” was performed August 23, 1995, “speed
bump repairs” were performed on December 14, 1995, and “concrete island replace” was
performed on December 21, 1995.
7. The lot was pressure washed intermittently and swept regularly.
It is significant that, although the defendants’ affidavits indicate that systems and
personnel were in place to assure integrity and safety of the parking lot, no evidence is found that
“on or about December 19, 1996" or at any time shortly preceding that date, the lot was
examined and found to be free of potholes. Moreover, the lack of any report of potholes from
those who had the duty to report same is not conclusive evidence that there were no potholes.
In contrast to the inference to be drawn from the negative evidence that no pothole was
reported, there is the positive deposition of plaintiff that there was a pothole at the time of her
injury.
For purposes of reviewing the summary judgment, this Court must view the evidence of
plaintiff in its most favorable light and find that the existence of the pothole was a disputed issue
fact which must be resolved by a trial rather than by summary judgment. Barber v. Ralston
Purina Co., Tenn. App. 1991, 825 S.W.2d 96.
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What constitutes reasonable care on the part of a parking lot in providing for the safety
of invitees is a question for the jury. Mumford v. Thomas, Tenn. App. 1980, 603 S.W.2d 154.
In the past, some “trip and fall” suits have been dismissed under the “open and obvious
rule.” Plaintiff testified that the pothole was not open and obvious to her because her foot went
into the hole as she stepped from her vehicle. If her version of the incident is found to be true,
then the open and obvious rule might be held to be inapplicable. Moreover, the Supreme Court
has recently modified the open and obvious rule and revised the duty of the owner or controller
of a premises to an invitee or licensee who is injured on the premises.
In Coln v. City of Savannah, for publication, March 30, 1988, Tenn. 1998, 966 S.W.2d
34, the Supreme Court said:
After reviewing the two cases before us, the extensive
literature, our Tennessee cases on the subject, and cases from
other jurisdictions, we conclude that an open and obvious
danger does not automatically result in a finding of no duty
and therefore no landowner liability. As in any negligence
action, we think a risk is unreasonable and gives rise to a duty
to act with due care if the foreseeable probability and gravity
of harm posed by a defendant’s conduct outweigh the burden
upon the defendant to engage in alternative conduct that
would prevent the harm. McCall v. Wilder, 913 S.W.2d 150
(Tenn. 1995). Applying this analysis, if the foreseeability and
gravity of harm posed by the defendant’s conduct, even if
“open and obvious,” outweigh the burden upon the defendant
to engage in alternative conduct, the defendant has a duty to
act with reasonable care and the comparative fault principles
apply under McIntyre v. Balentine, supra.
----
In each of these premises liability cases, the plaintiff
contends that the open and obvious rule does not preclude
finding a duty owned by the defendant landowner and that an
open and obvious danger is merely a factor for consideration
in determining comparative fault under McIntyre v. Balentine.
The landowner defendants in both cases maintain that the rule
is intact; that there is no duty of care when an open and
obvious condition results in injury to the plaintiff. The City
of Savannah in Coln also contends that the plaintiff was at
least 50 percent negligent, barring recovery under
comparative fault.
----
We granted and consolidated these appeals to resolve
the conflicting views and to determine the viability of the
“open and obvious” rule after McIntyre; specifically, whether
an “open and obvious” condition relieves a defendant’s duty
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of care or whether it merely is considered in assessing the
comparative fault of the parties.
A negligence claim requires proof of the following
elements: (1) a duty of care owed by the defendant to the
plaintiff; (2) conduct by the defendant falling below the
standard of care amounting to a breach of that duty; (3) an
injury or loss; (4) causation in fact; and (5) proximate or
legal cause. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993).
In McCall v. Wilder, supra, we explained that “a risk
is unreasonable and gives rise to a duty to act with due care if
the foreseeable probability and gravity of harm posed by
defendant’s conduct outweigh the burden upon defendant to
engage in alternative conduct that would have prevented the
harm.” Among the factors for consideration are
the foreseeable probability of the harm or
injury occurring; the possible magnitude of
the potential harm or injury; the importance or
social value of the activity engaged in by
defendant; the usefulness of the conduct to
defendant; the feasibility of alternative, safer
conduct and the relative costs and burdens
associated with that conduct; the relative
usefulness of the safer conduct; and the
relative safety of alternative conduct.
913 S.W.2d at 153.
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 Lt. 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 Constr. Co., Inc., 845
S.W.2d 173, 178 (Tenn. 1992).
If the plaintiff meets the burden of establishing the
defendant’s duty in a particular case, as well as the other
elements of the negligence claim, the trier of fact must apply
the principles of McIntyre v. Balentine, supra. In that case we
joined nearly every jurisdiction in holding that a plaintiff’s
contributory negligence no longer would bar recovery against
a tortfeasor and adopting a system of comparative negligence
in which the plaintiff’s negligence is compared to the fault of
the defendant or defendants. A plaintiff whose negligence is
less than that of a tortfeasor may now recover damages
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reduced by a percentage of the plaintiff’s own negligence.
833 S.W.2d at 54.
----
In premises liability cases, application of duty
principles resulted in imposing a duty on an owner or
possessor of premises to exercise reasonable care under the
circumstances to a guest (licensee) or business invitee. The
duty includes the responsibility of either removing or warning
against any latent or hidden dangerous condition on the
premises of which one was aware or should have been aware
through the exercise of reasonable diligence. Eaton v.
McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Smith v. Inman
Realty Co., 846 S.W.2d 819, 823 (Tenn. App. 1992).
----
(1) 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.
----
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 invitee’s attention may be
distracted, so that he will not discover what is
obvious, or will forget what he has
discovered, or 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.
----
Moreover, the open and obvious rule is inconsistent with our
cases which analyze duty by balancing foreseeability and
gravity of harm with feasibility and availability of alternatives
that would have avoided the harm.
----
We reject the defendants’ contentions that restriction
of the open and obvious danger rule will preclude the trial
court from applying mechanisms such as summary judgment
and directed verdict to evaluate cases. By retaining the
separate analysis of duty, and not totally subsuming all cases
by applying comparative fault, the mechanisms of summary
judgment and directed verdict remain viable to evaluate cases
at preliminary stages in the proceedings.
The evidence presented by defendants in support of their motion is not sufficiently
conclusive to entitle them to dismissal as a matter of law. Any doubt as to the existence of a
genuine issue of fact must be resolved against the moving party. Barber v. Ralston Purina
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Co., Tenn. App. 1991, 826 S.W.2d 96. Generally, what constitutes negligence on the parking
lot is a question for the jury. Mumford v. Thomas, Tenn. App. 1980, 603 S.W.2d 154.
Complaint is made of the exclusion of the affidavit of a witness with 15 years
experience in the installation, maintenance and repair of asphalt surfaces. It is not necessary
for an “expert” who expresses an opinion to have any particular qualification except
knowledge of the subject matter which is not possessed by an ordinary person which
information would asist the trier of fact in reaching an accurate and just conclusion. TRE
Rule 702.
It was error to exclude the affidavit for lack of qualification. Upon trial, his
testimony, if offered, should be heard.
The summary judgment in favor of defendants is reversed and vacated. Costs of the
appeal are taxed against the defendants-appellees. The cause is remanded to the Trial Court
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
____________________________
WILLIAM C. KOCH, JR., JUDGE
____________________________
WILLIAM B. CAIN, JUDGE
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