This is a good summary judgment ruling from the Davidson County Circuit Court in a slip and fall case. Boykin v. Moorehead Living Trust, 2015 WL 3455433 (Tennessee Court of Appeals, May 29, 2015). This case came out of Sixth Circuit in Davidson County Tennessee. The Court of Appeal affirmed summary judgment in favor of the property owner after plaintiff tripped and fell on a concrete landing pad in a parking lot.
The facts show plaintiff was running errands in Greenhills when he tripped and fell in a concrete parking area. The parking lot was 4 inches lower than the landing. Plaintiff had previously navigated the parking landing without incident. However, on the way back, plaintiff tripped on the lower landing pad. Plaintiff did not notice the difference in height prior to the fall because he was looking straight ahead rather than looking where he was walking. Plaintiff admitted that if he had been looking down prior to crossing the concrete landing, he would have noticed the difference in height. (One must wonder whether this poor plaintiff was prepared for his deposition.) There were no prior instances of falls in the area. Judge Brothers found plaintiff failed to establish a dangerous or defective condition existed and, therefore, defendant had no duty to warn or correct of the condition. The difference in height was open and obvious and reasonable in the minds could not disagree that plaintiff was at least 50% at fault for not watching where he was going. In affirming Judge Brother’s decision, the Court of Appeals stated:
In a premises liability case, an owner’s liability stems from his superior knowledge concerning the condition of the premises. Nee v. Big Creek Partners, 106 SW.3rd 650, 653 (Tenn. Ct. App. 2002). The owner of the premises “has a duty to exercise reasonable care to prevent injury to persons lawfully on the premises.” Id. This duty includes a responsibility to remove or warn against hidden dangerous or defective conditions of which the owner is aware or should have been aware through the exercise of reasonable diligence. Id. However, owners do not have a duty to remove or warn against conditions that pose an unforeseeable risk or those conditions which the owner “neither knew about nor could have discovered with reasonable care.” Id. (Citing Rice v. Sabir, 979 S.W.2d 305, 308 Tenn. (1998)). Owners also owe no duty to guess with regard to open and obvious conditions, unless the owner “should anticipate the harm despite the guest’s knowledge of the conditions obviousness.” Friedenstab v. Short, 174 S.W.3d 217, 223 (Tenn. Ct. App. 2004).
The defendant did not owe a duty of care to plaintiff regarding the height variation between the level of the concrete parking landing in the parking lot for 2 reasons: (1) it did not pose an unreasonable risk; and (2) it was an open and obvious condition.
In reaching its conclusion, the court relied on the Nee case in which the plaintiff contended the stairs on the side of a golf teeing area was a dangerous or defective condition. The court in Nee concluded that a finding that the steps were defective or dangerous based on the photographs would require the jury to engage in speculation, conjecture and guesswork. The court also found the plaintiff’s testimony insufficient because nothing about his description of the accident permitted a “reasonable inference that the stairs … were defective or dangerous. Like the claimant in Nee, plaintiff in the present case did not present sufficient evidence to demonstrate that the height differential between the concrete parking landing in the parking lot was a dangerous or defective condition. For the jury to conclude that the height differential was dangerous or defective would require “speculation, conjecture, and guesswork.” The court noted that it “stretches the imagination” to conclude the premise owner should have anticipated the guest would use the raised parking landing to access a store on its property, fail to see the elevation difference, and suffer serious injuries. Prior to this incident, there had been no other instances reported to the premise owner and no one had complained of the condition. It also helped plaintiff admitted there was nothing distracting him at the time he was walking and was not paying attention to the elevation change.
If you have any questions regarding the status of premise liability law in Tennessee, please not hesitate to contact me directly at (615) 630-7727.