Coln v. City of Savannah

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

FOR PUBLICATION
HAZEL MAXINE COLN and )
husband, CARL F. COLN, ) Filed: March 30, 1998
)
Appellants, )
) HARDIN LAW
Vs. )
)
) HON. JULIAN P. GUINN, JUDGE
CITY OF SAVANNAH, TENNESSEE, )
)
Appellee. ) No. 02-S-01-9702-CV-00008

and
FILED
DEBBIE VANCLEAVE, )
) March 30, 1998
Appellant, )
) MADISON LAW
Vs. ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
MATTHEW MARKOWSKI and ) HON. WHIT LAFON, JUDGE
wife, DIANE MARKOWSKI, )
)
Appellees. ) No. 02-S-01-9704-CV-00026

For Appellants, Coln: For Appellee, City of Savannah:
Edward L. Martindale, Jr. James A. Hopper
DREW AND MARTINDALE Savannah, Tennessee
Jackson, Tennessee

For Appellant, Vancleave: For Appellees, Markowski:
James H. Bradberry Russell E. Reviere
JAMES H. BRADBERRY Bradford D. Box
& ASSOCIATES RAINEY, KIZER, BUTLER, REVIERE
Dresden, Tennessee & BELL, P.L.C.
Jackson, Tennessee

For Amicus Curiae, Tennessee For Amicus Curiae, Tennessee
Trial Lawyers Association: Municipal Attorneys Association:
John A. Day Todd Moore
Donald Capparella HAYNES & FREEMAN, PLC
Nashville, Tennessee Goodlettsville, Tennessee
and
Jeffrey A. Garrety
Jackson, Tennessee

OPINION

COLN: COURT OF APPEALS REVERSED AND
TRIAL COURT JUDGMENT REINSTATED.

VANCLEAVE: COURT OF APPEALS REVERSED
AND CASE REMANDED TO TRIAL COURT. ANDERSON, C.J.
 We granted permission to appeal in two premises liability cases to

determine a common question to both - whether and to what extent the

traditional open and obvious rule eliminating a landowner’s duty to one injured as

a result of an open and obvious danger continues to be viable after the adoption

of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).1

In the first premises liability case, Coln v. City of Savannah, the trial

judge implicitly found a landowner duty and, applying comparative fault

principles, found that the injured plaintiff, who tripped over brick pavers installed

in the sidewalk by the City, was 30 percent negligent and the City was 70 percent

negligent, and awarded damages accordingly. The Court of Appeals reversed,

implicitly acknowledging a duty owed by the City but finding that the plaintiff was

at least 50 percent negligent because “the condition of the sidewalk was obvious

to the extent that a reasonably prudent person should have recognized the

potential hazard that it presented.”

In the second case, Vancleave v. Markowski, the trial judge,

implicitly finding no landowner duty, granted summary judgment to the landowner

after finding that the opening in a pool deck on which the plaintiff fell and was

injured was “clearly visible and not concealed and that anyone walking on the

premises should have been able to observe it.” The Court of Appeals affirmed.

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

1
We have consolidated these cases pursuant to Tenn. R. App. P. 16(b), because they
contain a common question of law.

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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.

After reviewing the record in each case and applying this rule, we

reverse the Court of Appeals’ judgment in Coln v. City of Savannah and reinstate

the judgment of the trial court awarding damages. We also reverse the Court of

Appeals’ summary judgment in Vancleave v. Markowski and remand to the trial

court for proceedings consistent with this opinion.

BACKGROUND

Coln v. City of Savannah

In June of 1992, the City of Savannah (“City”) contracted to have

decorative brick pavers installed in front of the entrance of its City Hall building.

The brick pavers were installed on top of a bed of sand in an area approximately

thirteen and one-half feet wide by sixteen and one-half feet long; the surface of

the pavers when installed was below the level of the adjacent concrete sidewalk

that led to the door of the City Hall building.

On November 2, 1992, the plaintiff, Hazel Coln, who was 68 years

of age, walked across the brick pavers toward the entrance of the building and

tripped on the lip of the concrete sidewalk adjacent to the brick pavers. She fell,

injuring her left wrist and arm. Coln conceded that the weather had been clear

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and sunny, and that nothing prevented her from seeing the brick pavers or the

sidewalk.2

William Gilchrist, the landscape designer who installed the brick

pavers, testified that there was a deviation approximately three-eighths of an

inch between the pavers and sidewalk when the pavers were installed. Gilchrist

testified that the deviation was due to the settling of sand beneath the pavers, as

well as a hump in the concrete sidewalk. When he installed the brick pavers,

Gilchrist told Bill Fox, the assistant manager for the City, that a deviation existed

and that half of the pavers would have to be replaced to correct the deviation.

Fox testified that he knew about the deviation between the pavers

and the sidewalk, but felt that it was acceptable and should not be corrected.

Paul Lebovitz, a landscape architect, testified that it is reasonable to expect

some deviation between the two surfaces when pavers are installed near a

concrete sidewalk but that pavers are accepted in the industry as a safe walkway

material. There was also evidence that the size of the deviation was several

inches greater at the time the plaintiff was injured.

The plaintiffs alleged that the City “had negligently and carelessly

left [the area of the new brick pavers] defective and in disrepair” and that the City

had created “a dangerous condition for the plaintiff and any other person walking

down said sidewalk.” The trial court rejected the City’s reliance on government

immunity provisions3 after finding that the sidewalk was defective, unsafe, and

dangerous:

2
The plaintiff acknowledged that she suffered from several medical ailments, some of
which resulted in occasional fainting or dizziness. She did not testify that she had such a spell on
the day an d time in q uestion.

3
See Tenn. Code Ann. § 29-20-201(a)(Supp. 1997)(governmental immunity) and Tenn.
Code Ann. § 29-20-203(a)(Supp. 1997)(removal of immunity for “defective, unsafe, or dangerous
condition of any street, alley, sidewalk or highway....”).

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 [The defendant] surprisingly knew of [the deviation] in
its inception, but accepted it and made no attempt to
correct it. . . .They created and maintained the
defective, unsafe and dangerous condition and . . .
this condition was the proximate cause of the injuries
suffered or experienced by the Plaintiff wife.

Accordingly, the trial court apportioned 30 percent of the negligence to the

plaintiff and 70 percent to the City.

On appeal, the City contended that the trial court erred in finding

that the sidewalk was defective, unsafe, or dangerous, and that the trial court

should have found that the plaintiff was at least 50 percent negligent because

the condition of the sidewalk was “open and obvious.” The Court of Appeals

noted that the “open and obvious” rule traditionally removed any duty owed by a

defendant to a plaintiff who is injured as a result of dangerous conditions that are

open and obvious, but said that the rule was subsumed by the comparative fault

system adopted in McIntyre v. Balentine, supra. Thus, the court held:

We adhere to the concept that there is no liability on the
person or entity in control of premises if a person
lawfully thereon fails to exercise reasonable care for his
or her own safety or for dangers that are obvious,
reasonably apparent, or as well known to the injured
party as to the owner, operator or person in control of
the premises, so long as the plaintiff’s negligence is
equal to or greater than the defendant’s negligence. . ..
Otherwise stated, we are of the opinion that the duty of
the plaintiff has not been changed but plaintiff’s failure
to meet her duty must be compared to the negligence
of the tortfeasor. . . .

The court then concluded that plaintiff Coln was at least 50 percent negligent

under the facts of this case, and reversed the judgment.4

Vancleave v. Markowski

4
The Court of App eals therefore did not address the defenda nt’s contentions with regard
to the gov ernm ental im mun ity provisions o f the Te nness ee Go vernm ent To rt Liability Act.

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 In October of 1993, the plaintiff, Debbie Vancleave, was a guest at

the home of the defendants, Matthew and Diane Markowski. According to their

depositions, Vancleave and Diane Markowski went into the backyard to the deck

area around a swimming pool, where they walked, talked and surveyed the

landscaping in the yard. Vancleave, who was walking behind Markowski, fell into

an opening in the deck area that was eighteen inches wide and three feet long.

The opening normally contained a skimmer used for cleaning the pool, but it had

been removed for the fall and winter months. Vancleave’s right knee went into

the opening, and she also injured her left ankle.

The plaintiff filed suit alleging negligence, and the landowners filed

a motion for summary judgment on the basis that the opening in the deck was an

open and obvious condition. The trial court agreed, finding that “the plaintiff was

injured on an opening in the deck which was clearly visible and not concealed

and that anyone walking on the premises should have been able to observe it.”

The Court of Appeals affirmed the order granting summary judgment to the

defendants.

SUMMARY

In each of these premises liability cases, the plaintiff contends that

the open and obvious rule does not preclude finding a duty owed 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. The Court

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of Appeals’ analysis in each case reflects the conflicting views about duty and

comparative fault it has expressed in a series of its unpublished decisions. 5

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 of care or whether it merely is considered in assessing the

comparative fault of the parties.

NEGLIGENCE PRINCIPLES

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).

The initial requirement, the existence of a legal duty, is a question

of law for the court which requires consideration of whether “such a relation

exists between the parties that the community will impose a legal obligation upon

one for the benefit of others -- or, more simply, whether the interest of the

plaintiff which has suffered invasion was entitled to legal protection at the hands

of the defendant.” Id. at 870 (quoting, W. Page Keeton, Prosser & Keeton on the

Law of Torts, § 37 at 236 (5th ed. 1984)).

5
The Court initially indicated that the open and obvious rule was subsumed by
com parative fa ult principles. Broyle s v. C ity of Kn oxville , No. 03A 01-950 5-CV- 00166 (Tenn . App.,
E.S., Aug . 30, 1995 ); Cooperwood v. Kroger Food Stores Inc., No. 02A01-9308-CV-00182 (Tenn.
App., W.S., Dec. 30, 1994). Subsequent decisions indicated that the open and obvious rule was
not c han ged by McI ntyre’s adoption of com parative fa ult. Tracy v. Exxon Corp., No. 02A01-9512-
CV-00 277 (T enn. Ap p., W .S., Dec. 3 1, 1996) ; Jones v. Exxon Corp., No. 02A01-9507-CV-00159
(Tenn . App., W .S., Aug. 27 , 1996); Shope v. Radio Shack, No. 03A01-9508-CV-00288 (Tenn.
App., E.S., Dec. 7, 1995).

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 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 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 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 Const. 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

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system of comparative negligence in which the plaintiff’s negligence is compared

to the fault of the defendant or defendants. 6 A plaintiff whose negligence is less

than that of a tortfeasor may now recover damages reduced by a percentage of

the plaintiff’s own negligence. 833 S.W.2d at 54.

Our holding in McIntyre was a fundamental change in negligence

law in Tennessee. It was based on considerations of fairness and consistency,

as well as to avoid the inconsistent and often harsh results to plaintiffs whose

negligence was far less than that of a defendant or defendants. Although we

have since analyzed the effect of adopting comparative fault on a number of

common law negligence doctrines, see, e.g., Perez v. McConkey, 872 S.W.2d

897 (Tenn. 1994)(implied assumption of risk), we now address for the first time

its effect on the traditional “open and obvious” danger doctrine.

OPEN AND OBVIOUS DOCTRINE

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.7 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).

6
We have since distinguished comparative negligence from comparative fault. The
form er is th e m eas ure o f the p laintiff ’s neg ligenc e in pe rcen tage term s tha t redu ces the p laintiff ’s
recovery. The latter encompas ses the determination of how to ap portion damage rec overy
amo ng m ultiple or joint tortfe asors a ccordin g to the pe rcentag e of fault attribu table to eac h.
Owens v. Truckstops of America, 915 S.W .2d 420, 425 n. 7 (Tenn. 1996).

7
At one time, there was a distinction in the duty owed to a licensee as opposed to an
invitee. This distinction ha s since b een ab olished. Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.
1984).

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 Because the rationale for the imposition of this duty was partly the

“owner’s superior knowledge of a perilous condition on his premises,” a rule of

no-liability also was derived: that a premises owner has no liability for injuries

sustained from dangers that were “obvious, reasonably apparent, or as well

known to the invitee [or licensee] as to the owner.” Kendall Oil Co. v. Payne, 293

S.W.2d 40, 42 (Tenn. App. 1955); see also McCormick v. Waters, 594 S.W.2d

385, 387 (Tenn. 1980). In many jurisdictions, this so-called “open and obvious”

rule was frequently explained in terms of duty, that is, a defendant has no duty to

warn or protect against a known or obvious danger. Other jurisdictions

analogized the open and obvious rule to contributory negligence or assumption

of risk, doctrines that also barred a plaintiff’s recovery for negligence. See

Keeton, Personal Injuries Resulting From Open and Obvious Conditions, 100 U.

Pa. L. Rev. 629 (1952). Regardless of the terminology, the result was the same:

no recovery.

Despite its traditional application by many courts, the open and

obvious doctrine was widely criticized for producing arbitrary results and being

“wrong in policy.” James, Tort Liability of Occupiers of Land: Duties Owed to

Licensees and Invitees, 63 Yale L.J. 605, 628 (1954). As one commentator said:

[T]here is perhaps no condition the danger of which is
so obvious that all [persons] under all circumstances
would necessarily see and realize the danger in the
absence of contributory negligence, and this is
particularly true if the further principle so often
repeated is accepted that the customer or business
invitee is entitled to assume that the premises are
reasonably safe for his use.

Keeton, supra, 100 U. Pa. L. Rev. at 642. Another writer observed that the open

and obvious rule failed to consider all the relevant circumstances:

An undeniable legal error is committed every time a
court bars recovery to an injured person based solely
on the fact that the perilous nature of the alleged
cause of harm was ‘apparent to all,’ without any

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 consideration of the multitude of other factors which
may justify or excuse the plaintiff’s conduct.

Phillips, Assumption of the Risk Returns in Disguise as the Open and Obvious

Doctrine Defense, 30 ISBA Tort Trends 4 at 10 (1995).

In addition to these criticisms, the adoption of comparative fault

principles led numerous jurisdictions to reconsider the open and obvious rule and

to conclude that it should not automatically preclude recovery. 8 As the

Mississippi Supreme Court observed:

Emerging from other jurisdictions is a modern trend
toward holding that the obviousness of a danger does
not necessarily relieve the owner’s duty of care.
Moreover, many states have limited the use of this
doctrine by holding that a plaintiff’s knowledge or the
obviousness of a dangerous condition does not
preclude recovery, and, some instances, states have
expressly abolished the open and obvious doctrine
after the adoption of comparative negligence.

Tharp v. Bunge Corp., 641 So.2d at 24. The Illinois Supreme Court agrees that

“[t]he manifest trend of the courts in this country is away from the traditional rule

absolving, ipso facto, owners and occupiers of land from liability for injuries

resulting from known or obvious conditions. . . .” Ward v. K Mart Corp., 554

N.E.2d at 231.

Nearly every jurisdiction has also relied upon the Restatement

(Second) of Torts, § 343A, which states the rule as follows:

(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

8
See Regency Lake Apartments Association, Ltd. v. French, 590 So.2d 970 (Fla. App.
1991); Harrison v. Taylor, 768 P.2d 1321 (Id aho 19 89); Ward v. K Mart Corp., 554 N.E. 2d 22 3 (Ill.
1990); Konicek v. Loomis Brothers, Inc., 457 N.W .2d 614 ( Iowa 19 90); Bertrand v. Alan Ford, Inc.,
537 N .W .2d 185 ( Mich. 19 95); Tharp v. Bunge Corp., 641 So .2d 20 (M iss. 1994 ); Parker v.
Highland Park, Inc., 565 S.W .2d 512 ( Tex. 1 978); Laesch v. L & H Ind., Ltd., 469 N.W.2d 655
(Wis. Ct. App. 199 1).

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 anticipate the harm despite such knowledge or
obviousness.

(Emphasis added). The word “‘known’ denotes not only knowledge of the

existence of the condition or activity itself, but also appreciation of the danger it

involves,” and the word “‘obvious’ means that both the condition and the risk are

apparent to and would be recognized by a reasonable man, in the position of the

visitor, exercising ordinary perception, intelligence, and judgment.” Restatement

(Second) of Torts, § 343A (comment b). The restatement further provides that

the premises owner’s duty exists if the harm can or should be anticipated

notwithstanding the known or obvious danger:

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.

Restatement (Second) of Torts, § 343A (comment f). As the Michigan Supreme

Court has said: “If the risk of harm remains unreasonable, despite its

obviousness or despite knowledge of it by the invitee, then the circumstances

may be such that the [defendant] is required to undertake reasonable

precautions [and] the issue then . . . is for the jury to decide.” Bertrand v. Alan

Ford, Inc., 537 N.W.2d at 187.

Although a few courts have held that comparative fault principles

abrogate the open and obvious rule entirely, 9 the majority follow the Restatement

position and recognize that duty remains a necessary part of the analysis. In

Ward v. K Mart, supra, for example, the Illinois Supreme Court explained:

9
See, e.g., Harrison v. Taylor, 768 P.2d at 1321; Tharp v. Bunge C orp., 641 So.2d at 25.

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 [W]e recognize that the Restatement speaks to the
more general question of liability, and not specifically
to the existence of a duty. But we think the principles
expressed there are consistent with the general duty
of reasonable care owed to invitees and licensees,
and they are relevant to the resolution of whether an
injury was reasonably foreseeable. We emphasize,
however, that since the existence of a duty turns in
large part on public policy considerations, the
magnitude of the burden of guarding against the
injury, and the consequences of placing the burden
upon the defendant, as well as the likelihood of injury
and the possible serious nature of such an injury
must also be taken into account.

554 N.E.2d at 232 (emphasis added). The analysis, therefore, as in any

negligence case, is first upon duty in accordance with the foreseeability and

gravity of harm, and the feasibility and availability of alternatives; if a duty is

imposed, then the surrounding circumstances are analyzed under the principles

of comparative fault.10

TENNESSEE LAW

We agree with the rationale of the majority of courts which have

limited or restricted the traditional “open and obvious” rule in favor of the

Restatement approach. We also agree that attempting to analyze the duty issue

simply by labeling some conditions “open and obvious,” without consideration of

any surrounding circumstances, promotes arbitrary and inconsistent results.

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.

10
See Regency Lake Apartments Association Ltd. v. French, 590 So.2d at 973
(comparative negligence applied where plaintiff tripped over exposed tree roots within apartment
com plex); Ward v. K Mart Corp., 554 N.E.2d at 231 (court applied com parative negligence where
plaintiff walk ed into co ncrete c olum n while ca rrying large o bject from defend ant’s store ); Konicek
v. Loomis Brothers, Inc., 457 N.W .2d at 618 (compa rative negligence where plaintiff’s injury
resulted f rom open an d obviou s hole in roo f); Parker v. Highland Park, Inc., 565 S.W.2d at 517
(court em ployed co mpa rative neg ligence w here plain tiff injured falling o n dark stairway); Laesch v.
L & H Industries, Ltd., 469 N.W.2d at 659 (open and obvious defense rejected under restatement
approa ch); cf. Buech elers v. Ch icago P ark Dis t., 665 N.E.2d 826 (Ill. 1996)(no duty to warn
against diving into open waters).

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 We deem the Restatement approach to be the better reasoned and

more persuasive analysis. The principles stated in the Restatement (Second) of

Torts, § 343(A) relate directly to foreseeability and facilitate consideration of the

duty issue. Whether the danger was known and appreciated by the plaintiff,

whether the risk was obvious to a person exercising reasonable perception,

intelligence, and judgment, and whether there was some other reason for the

defendant to foresee the harm, are all relevant considerations that provide more

balance and insight to the analysis than merely labeling a particular risk “open

and obvious.” In sum, the analysis recognizes that a risk of harm may be

foreseeable and unreasonable, thereby imposing a duty on a defendant, despite

its potentially open and obvious nature.

Accordingly, while we restrict the once broad application of the

“open and obvious” doctrine, we stress that duty remains a separate component

of a plaintiff’s negligence action. As we said in Blair v. Campbell, 924 S.W.2d

75 (Tenn. 1996), “our adoption of the principles of comparative fault did not alter

the analysis applicable to the common law concept of duty . . . and it is beyond

dispute that duty is a question of law for the trial court’s determination.” Thus,

only after a duty is established does comparative fault come into play.

We believe our analysis is consistent with other post-McIntyre

cases. In Perez v. McConkey, supra, we addressed the effect of comparative

fault on the assumption of risk doctrine which, like contributory negligence, had

traditionally barred a plaintiff’s recovery. After discussing the several distinct

types of assumed risks, e.g., express or implied, we held that a plaintiff’s primary

implied assumption of risk, in which a plaintiff assumes a known risk that is

inherent in a particular activity, such as watching a baseball game from an

unscreened seat, should continue to be analyzed in terms of duty. Conversely,

secondary implied assumption of risk, in which a plaintiff unreasonably or

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reasonably confronts a known risk, should be considered under comparative

negligence principles:

[T]he reasonableness of a party’s conduct in
confronting a risk should be determined under the
principles of comparative fault. Attention should be
focused on whether a reasonably prudent person in
the exercise of due care knew of the risk, or should
have known of it, and thereafter confronted the risk;
and whether such a person would have behaved in
the manner in which the plaintiff acted in light of all
the surrounding circumstances, including the
confronted risk.

872 S.W.2d at 905.

We also think our analysis is consistent with Eaton v. McLain,

supra. There, a guest in the defendants’ home awoke during the night and fell

while trying to descend a stairway in the dark. The jury allocated 40 percent of

the negligence to the guest and 60 percent to the homeowners. Although we

cited the traditional rule that the defendant has no duty to warn against a danger

that is open and obvious, we did so in the context of the specific facts of that

case. Our analysis of the duty issue under the facts of the case was consistent

with the above principles:

As indicated in [Doe v. Linder, supra,] the question of
whether the [defendants’] general duty of care
encompasses the duty to guard against the acts set
forth in the complaint involves an analysis of the
foreseeability of the risk to which [the plaintiff] was
exposed. In other words, the issue is whether [the
plaintiff] has made ‘any showing from which it can be
said that the defendants reasonably knew or should
have known of the probability of an occurrence such
as the one which caused [her] injuries.’ Id.

Eaton, 891 S.W.2d at 594 (italics in original). Although we concluded that, under

the specific facts of the Eaton case, no duty should be imposed, our holding

recognized that the result could easily have been different and a duty could have

been imposed:

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 In order for the [defendants] to be charged with the
duty to leave on the light in the hall and to lock the
basement door, they must have been able to
reasonably foresee that [the plaintiff] would get out of
bed in total darkness, walk across the hall, and step
into the basement stairwell, all without turning on any
lighting whatsoever. While our holding would likely be
different if no lighting had been provided or if it had
been inoperative, [the plaintiff’s] failure to turn on any
lights, coupled with her willingness to open the door
and step into an unfamiliar area is such a radical
departure from reasonable conduct under the
circumstances that the [defendants] could not have
reasonably foreseen that conduct and its
consequences.

Id. at 594. Accordingly, although we cited the “open and obvious” rule, we did

not label the dark stairwell an open and obvious danger and then hold that no

duty should be imposed; instead, the duty question was analyzed with respect to

the traditional components of foreseeability and risk of harm as applied to the

facts of the case. Id. at 594.

To summarize, we join those jurisdictions that have limited the

open and obvious doctrine in favor of the Restatement approach. That a danger

to the plaintiff was “open or obvious” does not, ipso facto, relieve a defendant of

a duty of care. Instead, the duty issue must be analyzed with regard to

foreseeability and gravity of harm, and the feasibility and availability of alternative

conduct that would have prevented the harm. The factors provided in the

Restatement (Second) of Torts, § 343(A) relate directly to the foreseeability

question; in short, if the foreseeability and gravity of harm posed from a

defendant’s conduct, even if “open and obvious,” outweighed the burden on the

defendant to engage in alternative conduct to avoid the harm, there is a duty to

act with reasonable care. The circumstances of the case are then analyzed

under comparative fault.

We reject the defendants’ contentions that restriction of the open

and obvious danger rule will preclude the trial court from applying mechanisms

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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. A

summary judgment remains appropriate, for example, where the plaintiff has not

produced sufficient evidence to meet the “duty” component, or any other

component of a negligence claim, as a matter of law. Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993). A directed verdict, on the other hand, remains appropriate if

the court evaluates the evidence in a light most favorable to the plaintiff and

determines that reasonable minds could not differ in finding that the fault of the

plaintiff was equal to or greater than the fault of the defendant. Eaton, 891

S.W.2d at 590.

APPLICATION

Coln v. City of Savannah

Although the trial court did not apply a separate analysis of the duty

requirement, it implicitly found that the defendant, City of Savannah, owed a duty

of reasonable care to the plaintiff, and it applied comparative fault principles in

assessing 70 percent of the negligence to the City and 30 percent of the

negligence to the plaintiff. In reversing the judgment, the Court of Appeals also

applied comparative fault analysis, but found that the plaintiff was at least 50

percent negligent, barring recovery.

Our review of the trial court’s determination of duty, a question of

law, is de novo. Our review of the trial court’s findings of fact, on the other hand,

is “de novo upon the record of the trial court, accompanied by a presumption of

the correctness of the finding, unless the preponderance of the evidence is

otherwise.” Tenn. R. App. P. 13(d).

-17-
 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.11

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.

Having found a duty existed under the facts of this case, we think

that the trial court correctly analyzed the conduct of the plaintiff and City under

comparative fault principles. In Eaton we said that relevant factors for

consideration include but are not limited to: (1) the relative closeness of the

causal relationship between the conduct of the defendant and the injury to the

plaintiff; (2) the reasonableness of the party’s conduct in confronting a risk, such

as whether the party knew of the risk, or should have known of it; (3) the extent

to which the defendant failed to reasonably utilize an existing opportunity to

avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring

a hasty decision; (5) the significance of what the party was attempting to

accomplish by the conduct, such as to save another’s life; and (6) the party’s

particular capacities, such as age, maturity, training, education, and so forth.

891 S.W.2d at 892.

11
We believe these facts distinguish this case from the pre-McIntyre cases cited by the
defendant for the proposition that a city or municipality has no duty or liability to ensure against
injuries from crack s or im perfec tions in side walks. See, e.g., City of Knoxville v. Hood, 97 S.W.2d
446 (Tenn. App. 193 6).

-18-
 A trial court acting as trier of fact “has considerable latitude in

allocating percentages of fault to negligent parties . . . [and] appellate courts may

alter these findings if they are clearly erroneous.” Wright v. City of Knoxville, 898

S.W.2d 177, 181 (Tenn. 1995). After evaluating the evidence, the trial court

assessed the negligence as 30 percent to the plaintiff and 70 percent to the City.

In our view, given the evidence in the record, and the presumption of correctness

afforded, the trial court’s findings were not clearly erroneous. The Court of

Appeals therefore erred in reversing the judgment.

Although not addressed by the Court of Appeals, the City maintains

its reliance on immunity under the Governmental Tort Liability Act:

Except as may be otherwise provided in this chapter,
all governmental entities shall be immune from suit
for any injury which may result from the activities of
such governmental entities wherein such
governmental entities are engaged in the exercise
and discharge of any of their functions, governmental
or proprietary.

Tenn. Code Ann. § 29-20-201(a)(Supp. 1997). As noted by the trial court, such

immunity may be removed under certain circumstances, including “any injury

caused by a defective, unsafe, or dangerous condition of any street, alley,

sidewalk or highway, owned and operated by such governmental entity.” Tenn.

Code Ann. § 29-20-203(a)(Supp. 1997). Removal of immunity under this

section, however, requires that “constructive and/or actual notice to the

governmental entity of such condition be alleged and proved. . . .” Tenn. Code

Ann. § 29-20-203(b)(Supp. 1997).

The question of whether a particular site is defective, unsafe, or

dangerous for the purpose of removing governmental immunity is a question of

fact. Helton v. Knox County, Tennessee, 922 S.W.2d 877 (Tenn. 1996). The

trial court found:

-19-
 The threshold issue in this case is the question of
notice or the absence of notice and this Court finds
that the Defendant City through its relationship with
William Gilchrist created a defective, unsafe and
dangerous condition. They surprisingly knew of it in
its inception, but accepted it and made no attempt to
correct it. . . . [T]he City then allowed this condition to
exist in an ever worsening position or condition as it
settled for a period of at least three months
depending upon the precise date when this portion of
the project was completed and perhaps a period of as
much as four months or in excess of four months.
That is sufficient to avoid that notice that’s required
under Tenn. Code Ann. 29-20-203[b]. They created
and maintained the defective, unsafe and dangerous
condition and [] this condition was the proximate
cause of the injuries suffered. . . .

The evidence in this record, reviewed with the presumption of

correctness, supports the trial court’s finding that the sidewalk was defective,

unsafe or dangerous, as well as the finding that the City had actual notice of the

condition. Tenn. R. App. P. 13(d). Moreover, because we have held that

comparative fault applies to conduct that is broader than negligence, such as

strict liability in tort, see, e.g., Whitehead v. Toyota Motor Corp., 897 S.W.2d 684

(Tenn. 1995), we observe that the trial court’s application of comparative fault

principles under Tenn. Code Ann. § 29-20-203 was entirely consistent with

McIntyre v. Balentine, supra. See Bradford v. City of Clarksville, 885 S.W.2d 78

(Tenn. App. 1994).

Vancleave v. Markowski

Although neither the trial court nor the Court of Appeals indicated

that it was considering the “duty” element, each implicitly found no duty when it

found that the opening in the homeowners’ swimming pool deck was open and

obvious and granted summary judgment to the homeowners as a matter of law.

Summary judgment is appropriate only if the moving party shows

that no genuine and material factual issue exists and he or she is entitled to relief

-20-
as a matter of law. In ruling on such a motion, the court must consider the

evidence in a light most favorable to the non-moving party and must allow all

reasonable inferences in his or her favor. A summary judgment may be

appropriate, therefore, “when there is no dispute over the evidence establishing

the facts that control the application of a rule of law.” Byrd v. Hall, 847 S.W.2d at

214-215; Tenn. R. Civ. P. 56.

Although summary judgment is a proper mechanism with which to

evaluate the “duty” component of a negligence claim, we conclude that the lower

courts erred in their rulings in this case. When reviewed with the applicable

standards, the evidence shows that the homeowners removed the skimmer from

their pool deck thereby creating a large and dangerous opening in the deck

which they did not elect to otherwise cover. The homeowner invited the plaintiff

onto the deck, where they walked in close proximity while talking and looking into

the yard. Although the plaintiff had not previously visited the homeowners, she

was not warned about the opening in the deck. There was a factual issue as to

the proximity and exact distance between the plaintiff and homeowner, their

actions just before the plaintiff fell into the opening, and the existence of conduct

that may have distracted the plaintiff.

In our view, the plaintiff presented sufficient evidence on the issue

of whether the risk of harm was unreasonable despite its open and obvious

nature and whether the foreseeability and gravity of the harm outweighed the

burden imposed in protection against that harm to establish a duty on the part of

the homeowner. Accordingly, the lower courts erred in granting summary

judgment to the homeowners. While we express no view on the relative fault of

the parties, the plaintiff was entitled to proceed with her case.

CONCLUSION

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 We conclude that an open and obvious danger that causes an

injury to a plaintiff does not automatically result in a finding of no duty and no

landowner liability. As in any negligence action, a risk is unreasonable and gives

rise to a duty if the foreseeability and gravity of harm posed by a defendant’s

conduct, even if open and obvious, outweigh the burden upon the defendant to

engage in conduct that would have prevented the harm.

Applying this rule, we reverse the judgment of the Court of Appeals

in Coln v. City of Savannah, and reinstate the judgment of the trial court. We

also reverse the judgment of the Court of Appeals in Vancleave v. Markowski

and remand the case to the trial court for further proceedings consistent with this

opinion. Costs of the appeals in each case shall be paid by the defendants.

________________________________
RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Drowota, Reid and Birch, JJ.
Holder, J. - see separate concurring opinion

-22-
-23-
 IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
HAZEL MAXINE COLN and ) March 30, 1998
husband, CARL F. COLN, )
) HARDIN LAW Crowson, Jr.
Cecil
Appellate C ourt Clerk
Appellants, )
)
)
V. ) HON. JULIAN P. GUINN, JUDGE
)
)
CITY OF SAVANNAH, TENNESSEE, )
) No. 02-S-01-9702-CV-00008
Appellee. )

and

DEBBIE VANCLEAVE, )
) MADISON LAW
Appellant, )
)
)
V. ) HON. WHIT LAFON, JUDGE
)
)
MATTHEW MARKOWSKI and )
wife, DIANE MARKOWSKI, )
) No. 02-S-01-9704-CV-00026
Appellees. )

CONCURRING OPINION

Although I concur in the results, I write separately because of my

disagreement with this Court’s expansive use of the term “duty.” This Court has

properly, in my opinion, used a duty analysis to determine that class of people to

whom reasonable care must be exercised. See, e.g., Bradshaw v. Daniel, 854

S.W.2d 865 (Tenn. 1993). In my opinion, however, this Court has also

improperly used a duty analysis to determine whether a party has failed to use

reasonable care. See, e.g., Eaton v. McCLain, 891 S.W.2d 587 (Tenn. 1994).
 One commentator has stated that the question of whether there is

a duty has most often seemed helpful in cases where the only real issue is

whether the defendant stands "in any such relation to the plaintiff as to create

any legally recognized obligation of conduct for the plaintiff’s benefit." W . Page

Keeton, Prosser & Keeton on the Law of Torts, § 42 at 274 (5th ed. 1984). In

courts that use "duty" to limit legal redress where causation is clear and direct,

the ordinary usage of "duty:"

has been to confine the word "duty" to
questions of the existence of some
relation between the defendant and the
plaintiff which gives rise to the obligation
of conduct in the first instance, and to
deal with the connection between that
obligation, once it has arisen, and the
consequences which have followed in
the language of "proximate cause."

Id. at 275.

This Court, however, has followed the lead of jurisdictions that

have expanded the use of a duty analysis in premises liability cases. The

majority states:

The analysis, therefore, as in any
negligence case, is first upon duty in
accordance with the foreseeability and
gravity of harm, and the feasibility and
availability of alternatives; if a duty is
imposed, then the surrounding
circumstances are analyzed under the
principles of comparative fault.

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 I have no quarrel with an examination of foreseeability and the

gravity of harm to determine whether a duty exists. Where I begin to differ with

the majority is in the examination of the following factors as part of the analysis

of duty: whether the danger was known and appreciated by the plaintiff;

whether the risk was obvious to a person exercising reasonable perception,

intelligence, and judgment; and whether there was some other reason for the

defendant to foresee the harm. These factors are more properly considered by

the trier of fact in determining whether a duty has been breached.

The existence of a duty should not be confused with a breach of

that duty. See Shaw v. Petersen, 821 P.2d 220, 222 (Ariz. App. 1991) (holding

that whether a hazard is open and obvious is not relevant to determine the

existence of duty, rather it is relevant to determining if the duty was breached). I

would permit a jury to decide if a risk is unreasonable. Klopp v. Wackenhut

Corp., 824 P.2d 293, 298 (N.M. 1992) (holding that it is for the jury to decide in

virtually every case whether a dangerous condition on the premises involved an

unreasonable risk of danger and whether the occupier should reasonably

anticipate that the visitor will not discover or realize the "obvious" danger).

Unlike the majority of this Court, I would find that the doctrine of

"open and obvious" has been subsumed into the comparative fault scheme.

Once a duty is found to exist as to the class of persons to which the plaintiff

belongs, the obviousness of the danger and the plaintiff's confrontation of that

danger would be but two additional factors for the jury to consider in determining

the parties' percentages of fault. Only if reasonable minds could not differ

should a motion for summary judgment or directed verdict be granted. See

-26-
Hertelendy v. Agway Ins. Co., 501 N.W.2d 903, 908 (Wis. App. 1993) (holding

that the application of open and obvious danger doctrine amounts to a

determination that the plaintiff's negligence in confronting an open and obvious

danger exceeds the defendant's negligence as a matter of law).

Approaching the open and obvious rule by analyzing the

reasonableness of a party's actions is consistent with the history of the open and

obvious rule in Tennessee. In the early history of "open and obvious," precluding

recovery required analyzing the reasonableness of the actions of the plaintiff in

confronting a risk or danger. The earlier cases focused on the plaintiff’s prior

knowledge of the danger. See Baker v. Louisville & N. Terminal Co., 106 Tenn.

490, 61 S.W. 1029, 1031 (1901) ("This was a danger that was open and obvious

to plaintiff the moment he climbed upon the car, and, having assumed the risk of

icing the car under such conditions, he cannot be heard now to complain");

Illinois Central R.R. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213, 218 (1938)

("And, hence, there is no liability from dangers that are obvious, or as well known

to the person injured as to the owner") (emphasis in original); Park v. Sinclair

Refining Co., 142 S.W.2d 321, 324-25 (Tenn. Ct. App. 1940) (holding no liability

is established "when it appears that the injured person's knowledge of the

danger surpassed or equaled that of the defendant").

In these cases, I would find the defendants owed a duty to their

respective plaintiffs. Once it has been determined that the plaintiffs fall within

the foreseeable class of persons, I would require the evaluation of the danger,

the reasonableness of the defendants' actions and the reasonableness of the

plaintiffs' actions in confronting the danger to be decided by the trier of fact in

-27-
comparing the fault of the parties. The relevant inquiry is the conduct of each of

the parties and whether that conduct falls below the standard of care so as to

breach the duty owed.

Janice M. Holder, Justice

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