JEROME R. HERBISON and )
MARGARET H. HERBISON, ) Davidson Circuit
) No. 96C-2636
Plaintiffs/Appellants, )
)
VS. )
)
HANSEN CHRYSLER-PLYMOUTH, )
INC.,
Defendant/Appellee.
)
)
)
Appeal No.
FILED
01A01-9710-CV-00594
August 19, 1998
IN THE COURT OF APPEALS OF TENNESSEE
Cecil W. Crowson
AT NASHVILLE
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE BARBARA N. HAYNES, JUDGE
Robert L. Whittaker, #17209
1712 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219
John E. Herbison, #12659
2016 Eighth Avenue South
Nashville, Tennessee 37204
ATTORNEYS FOR PLAINTIFFS/APPELLANTS
Gareth S. Aden, #2371
GULLETT, SANFORD, ROBINSON & MARTIN, PLLC
230 Fourth Avenue North, 3rd Floor
P.O. Box 198888
Nashville, Tennessee 37219-8888
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
WILLIAM B. CAIN, JUDGE
CONCURS IN RESULT:
WILLIAM C. KOCH, JR., JUDGE
JEROME R. HERBISON and )
MARGARET H. HERBISON, ) Davidson Circuit
) No. 96C-2636
Plaintiffs/Appellants, )
)
VS. )
)
HANSEN CHRYSLER-PLYMOUTH, )
INC., ) Appeal No.
) 01A01-9710-CV-00594
Defendant/Appellee. )
OPINION
The plaintiffs, Jerome R. And wife Margaret Herbison, have appealed from the summary
dismissal of their suit against the defendant, Hansen Chrysler-Plymouth, Inc., for injuries
received by Mr. Herbison on the premises of the defendant when he tripped on a metal strip
imbedded in the concrete floor on the premises of defendant.
The defendant is an automobile dealer with a large shop for servicing and repairing
automobiles. The parts department is located in the shop. The outside entrance to the shop is
equipped with doors which close against a metal strip which protrudes from 15/16 inch to 1-1/8
inch above the level of the concrete floor.
Mr. Herbison operates his own auto repair shop and occasionally enters defendant’s shop
through the described door way in order to procure parts from the parts department. As he
entered the shop, he noticed that the parts department had been moved and was looking for it as
he tripped on the protruding track. He testified that the track could have been made safe for
pedestrians by welding additional metal on each side of the track to create a beveled slope, rather
than an abrupt change of elevation.
The defendant moved for summary judgment upon the deposition of Mr. Herbison stating
the above facts. The memo supporting the motion cited Eaton v. McLain, Tenn. 1994, 891
S.W.2d 587, in which the Supreme Court recognized the “open and obvious” rule in respect to
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premises liability despite the adoption of “comparative fault” in McIntyre v. Ballentine, Tenn.
1992, 833 S.W.2d 52.
The Trial Court sustained the motion and dismissed plaintiffs’ suit without stating a
reason, but it is clear that the open and obvious rule was the reason.
The only issue on appeal is the correctness of the summary judgment.
Defendant’s motion for summary judgment was supported by plaintiffs’ responses to a
request for admissions, the deposition of the injured plaintiff, and the depositions of Dennis
Hansen and Erik A. Olson.
The responses of the plaintiffs and the deposition of the injured plaintiff established that
he had operated an auto repair shop for 23 years, that he visited defendants premises three or four
times a year to purchase repair parts, that he almost always entered the shop of the defendant
through the doorways used for moving vehicles into the shop, that, on July 24, 1995, he parked
in the parking lot and walked to the doorway he ordinarily used, that he tripped on a yellow metal
ridge in the floor of the doorway, that if he had been looking at his path he would have seen the
yellow metal ridge, but he was looking ahead for the parts department which had been moved
to a different part of the shop. He admitted that there were signs at the scene which read “Do not
use vehicle doors to enter bay, walk in Service Entrance” with arrow pointing to another door,
and “Service Entrance” beside the other door, but that he thought the signs referred to service
customers and not parts customers.
The parties stipulated that the metal strip protruded 15/16 inch to 1-1/8 inch above the
concrete floor.
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Plaintiffs’ response to the interrogatory admitted that the metal strip did not violate any
building code.
The injured plaintiff’s deposition stated that the entrance where he was injured could be
made safer for pedestrians by welding strips on either side of the imbedded strip so as to form
a sloping ramp and by painting said ramps with yellow paint.
In his deposition, the service manager admitted that pedestrians do use the vehicle
entrance and that, other than the signs, they have not been forbidden or prevented form doing so.
At the time of the decision of the Trial Court, the open and obvious rule had been
recognized as the law of Tennessee. However, on March 30, 1998, the Supreme Court released
its opinion in Coln v. City of Savannah, for publication, in which the Court said:
After reviewing the two cases before use, 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.
----
(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
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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.
In accordance with the directive of the Supreme Court, this Court has evaluated the
nature of the danger, the duty of a reasonably prudent user of the premises and have
concluded that the controller of the premises performed its duty and the sole cause of the
injury was the culpable inattention of the injured party.
Even though the attention of the injured party may have been diverted by his search
for the parts department, he had adequate opportunity to familiarize himself with the nature
of his pathway in his previous visits and, on the day of his injury as he approached the
doorway from the parking lot. This conclusion renders unnecessary any consideration of
comparative negligence.
The judgment of the Trial Court is affirmed. Costs of this appeal are assessed to the
appellants. The cause is remanded to the Trial Court for necessary further proceedings.
AFFIRMED AND REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
_____________________________
WILLIAM B. CAIN, JUDGE
CONCURS IN RESULT:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
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