IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
December 5, 1997
FREDRIKA A. STEINER, )
) Cecil W. Crowson
Plaintiff/Appellant, ) Appellate Court Clerk
) Appeal No.
) 01-A-01-9705-CV-00233
VS. )
) Davidson Circuit
) No. 94C-2468
THE PARMAN CORPORATION, )
)
Defendant/Appellee. )
CONCURRING OPINION
I concur in the result reached in Judge Todd’s opinion. My only reason
for writing separately is to focus on what I perceive to be decisive in this case: the fact
that the defendant did not violate a duty to the plaintiff. In that way, I avoid the
nagging problem of the court apportioning fault in a case in which the plaintiff was
entitled to a jury trial.
I start from the point that everybody owes to everybody else a duty of
due care under all the circumstances. Doe v. Linder Constr. Co., 845 S.W.2d 173
(Tenn. 1992). For a possessor of property, a duty to take action to prevent injury to
an invitee depends on
“the nature and use of the land, the nature of the
invitation, the nature of the relationship with the invitee,
the opportunity of the possessor and the invitee to know
and avoid existing or probable dangers and any and all
other factors which would challenge the attention of the
possessor and/or invitee to the probability of danger to the
invitee . . . .”
Zang v. Leonard, 643 S.W.2d 657 at 663 (Tenn. App. 1982)(emphasis added).
It naturally follows that a premises owner or operator has no duty to an
invitee whose knowledge of a dangerous condition is as great as the owner or
operator’s. As the Supreme Court said in Eaton v. McClain, 891 S.W.2d 587 (Tenn.
1994): “Although Tennessee law provides that premises owners owe invitees the duty
to warn of latent or hidden dangers, this duty does not arise if the danger is open and
obvious.” 891 S.W.2d at 595.
Assuming that a one and one-half to two inch difference in elevation
between a concrete pad and the surrounding asphalt at a service station is
dangerous, the condition was as apparent to an invitee as it was to the owner.
Therefore, I do not think that the owner had a duty to warn the plaintiff to watch her
step.
I am aware that the other sections of this court have held that the “open
and obvious” rule has gone the way of contributory negligence, remote contributory
negligence and implied assumption of the risk. See Broyles v. City of Knoxville, App.
No. 03A01-9505-CV-00166 (filed at Knoxville, Aug. 30, 1995); Cooperwood v. Kroger
Food Stores, App. No. 02A01-9308-CV-00182 (filed at Jackson, Dec. 30, 1994). But,
it seems to me that my colleagues have drawn that conclusion where the open and
obvious rule is asserted as an absolute bar to a claim against an otherwise negligent
defendant.1 In that context, I would agree that the negligence of the plaintiff and the
defendant should be compared, but there is nothing to compare where the defendant
did not violate a duty to the plaintiff.
I am comfortable with what I have said so far. I become uncomfortable
when I am asked to apportion fault in a case where the plaintiff has a right to a jury
trial. Where there is some evidence on both sides of the issue, I am not so sure that
the court can say as a matter of law that the plaintiff’s fault exceeds that of the
defendant. In cases tried without a jury, of course, the court as the finder of fact must
1
The Suprem e Court granted permission to appeal in Cooperwood on the question of whether
the open and obvious rule is limited to determining whether a duty of care is owed or whether it also
applies in the assessm ent of relative degrees of fault. The appeal was dismissed, however, and the
Court did not reach that issue.
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make that determination. But the question remains one for the jury in cases where
either party exercises the right to demand a jury.
I also admit to having some trouble with the question of whether it is for
the jury to determine if a condition is open and obvious. It may be. But in this case
I think reasonable minds could reach only one conclusion: that the plaintiff knew as
much about the hazard as the defendant did. She had walked over the place where
the concrete met the asphalt on her way to the store, and the difference in elevation
was plainly visible.
Therefore, I concur in the majority opinion.
_________________________________
BEN H. CANTRELL, JUDGE
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