# FILED

March 30, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA TION HAZEL MAXINE COLN and ) husband, CARL F. COLN, ) Filed: March 30, 1998 ) Appellants, ) ) HARDIN LAW Vs. ) ) ) HON. JULIAN P. GU INN, JUDGE CITY OF SAVANNAH, TENNE SSEE, ) ) Appellee. ) No. 02-S-01-9702-C V-00008 and DEBBIE VANCLEAVE, ) ) Appellant, ) ) MADISON LAW Vs. ) ) MATTHEW MARKOWSKI and ) HON. WHIT LAFON, JUDGE wife, DIANE MARKOWSKI, ) ) Appellees. ) No. 02-S-01-9704-C V-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 Cu riae, Tennessee For Amicus Cu riae, Tennessee Trial Lawyers Association: Municipal Attorneys A ssociation: John A. Day Todd Moore Donald Capparella HAYNES & FREEMAN, PLC Nashville, Tennessee Goodlettsville, Tennessee and Jeffrey A. Garrety Jackson, Tennessee 

## O P I N I O N

COLN: COURT OF APPEALS REVERSED AND TRIAL COURT JUDGMENT REINSTATED. VANCLEAVE: COURT OF APPEALS REVERSED AND CASE RE MANDED TO TR IAL COURT. ANDERSON, C.J.1 We have consolidated these cases pursuant to Tenn. R. App. P. 16(b), because t hey contai n a common question of law. -2-

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 i njured as a result of an open and obvious dan ger continues to be vi able after the adoption of comparative fault in McIntyre v. Balenti ne , 833 S.W.2d 52 (Ten n. 1992). 1

In the first premises liabi lity case, Coln v. City of Sav annah , the trial judge implicitly found a landowner duty and, applying comparative fault principles, found that the inju red plaintiff, who tripped ov er brick pavers ins

talled in the sidewalk by the City, was 30 per cent negligent and the Ci ty was 70 percent negligent, and awarde

d damages accordingly . The Court of Appeals rever sed, implicitly acknow

ledging a duty ow

ed by the City but findi ng that the plaintiff was at least 50 percent negligent because “the condition of the si dewalk was obvi ous to the extent that a reasonably prudent person should have r ecognized the potential hazard that it presented.”

In the second case, Vancleave v. Markowski , the trial judge, implicitly finding no landowner duty, gr anted summary judgment to the l andowner after finding that the opening i n a pool deck on which the p laintiff fell and was injured was “clear

ly visible and not concealed and that anyone wa lking on the premises should have been abl e to observe it.” The Cour t of Appeals affirmed.

After reviewing the two cases before us, the ex tensive literature, our Tenn essee cas es on the subject, and case s from ot her jurisd ictions, 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 ri sk is unreasonable and gi ves rise to a duty t

o act with due-3- care if the foreseeable probability and gravity of harm posed by a defen dant’s conduct outweigh t he burde n upon th e defen dant to e ngage in al ternative conduct that would prev ent the harm. McCall v. Wilder , 913 S.W.2d 150 (Tenn. 1995). Applying this

analysis, if the foreseeabil ity and gravity of harm posed by the defendant’s conduct, even if “ope n and obvious,” outwei gh the burden upon the defendant to engage in alternative conduct, the de fendant has a duty to act with reasonable care and the comparative fault principles apply under McIntyre v. Balentine , supra
.

After re viewing the r ecord in e ach case a nd applyin g this rule , we reverse the Court of Appeals’ judgment in Coln v. City of Sav annah and reinstate the judgment of the trial court awarding damages. We also rev erse the Court of Appeals’ summary judgment i n Vancleave v. Markowski and remand to the trial court for proceedings consi stent with this opinio n.

BACKGROUND Coln v. City

of Savannah In June o f 1992, the City of Savannah (“City”) con tracted t o have decorative brick pav

ers installed in front of the entr ance of its City Hall building. The brick pavers were installed on top of a bed of sand in an area app roximately 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 tow

ard the entrance of the building and tripped on the lip of the concrete sidewalk adjacent to the brick pavers. She fe ll, injuring her left wr

ist and arm. Coln conceded that the weather had been clear2 The plaint iff acknowl edged that she suf fered from severalmedical ail ments, some of which resul ted in occasi onal fai nting or dizzi ness. She did not testi fy 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. 19 97)(governmentalimmunity) and Tenn. Code Ann. § 29-20-203(a)(Supp. 1997)( removal of immunity for “defect ive, unsaf e, or dangerous condition of any street, alley , sidewalk or highway....”). -4- and sunny, and that nothing pr evented her from seeing the br ick pavers or the sidewalk. 2

William Gilchrist, the landscape designer who installed the brick pavers, testified that ther e was a deviation appr oximately three-eig hths of an inch between the pavers and sidewalk when the pavers were installed. Gilchrist testified that the deviation w as due to the settling of sand benea th the pavers, as well as a hump in the concrete sidewalk. When he installed the brick pavers, Gilchrist told Bill

Fox, the assistant manag er for the City, that a dev iation existed and that half of the pavers woul d have to be replaced to cor rect the deviation.

Fox testified that he knew about the deviation between the pavers and the sidewalk, but felt tha t it was acceptable and s hould 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 w alkway material. There was als o evidence that the siz

e of the deviation was sev eral inches greater at the ti me the plaintiff was injured.

The plaintiffs alleged that the City “had negligently and carelessly left [th e area of the new bri ck pavers] defecti ve and in di srepair” a nd that t he City had created “a dangerous condi tion for the plaintiff and any other person walking down said sidewalk.” The trial court rej ected the City’s rel iance on government immunity provisions 3 after finding that the sidew alk was defective, unsafe, and dangerous: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. -5- [The defendant] surprisingly knew of [the deviation] in its inception, but accepted i t and made no attempt to correct it. . . .They created and maintained the defective, unsafe and dangerous con dition and . . . this condition was the p roximate cause of the injuri es suffered or experienced by the Plaintiff wife.
Accordingly, the tr

ial court apportioned 30 perc ent of the negligence to the plaintif f and 70 percent t o the City.

On appeal, the City contended that the trial court err ed 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 Appea ls noted th at the “op en and ob vious” rule traditio nally remo ved any dut y 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 comparat ive fault system adopted in McIntyre v. Balenti ne , supra . Thus, the court held:

We adhere to the concept that there is no li ability on the person or en tit y in control of premises if a person lawfullythereon fails to exercise reasonable care for his or her own saf ety o r for dangers that are obvious, reasonably apparent, or as well known to the injured party as to the owner, oper ator or person in control of the premises, so long as the plaintiff’s negligence is equal to or greater thanthe 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 co mpa red to the negligence of the tortfeasor. . . .

The court then concluded that plai ntiff Coln was at least 50 per cent negligent under the facts of this case, and rev ersed the judgment. 4

Vancleave v. Marko

wski-6- In October of 1993, the plaintiff, Debbie Vancleave, was a g uest at the home of the defendant s, Matthew and Diane Markowski. According to their depositions, Vancleave and Diane Markowski went into the backyard to the deck area around a swimming poo l, where they w alked, talked and survey ed the landscaping in the yar

d. Vancleave, who w

as walking behind M arkowski, fell into an opening in the deck area tha t was eighteen inches wide and three feet long. The opening normally contai ned a skimmer used for cleaning the pool, but it had been removed for the fall and wi nter months. Vancleave’s r ight knee went into the opening, and she also inj ured her left ankle.

The plaintiff filed suit alleging negligence, and the landow ners 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, findi ng that “the plaintiff was injured on an opening in the deck which was cl early 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 g ranting summary judg ment to the defendants.

SUMMARY

In each of these premises liabil ity 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 ob vious danger is merel

y a factor for consideration in determining comparative fault under McIntyre v. Balenti ne . The landowner defendants in both cases maintain tha t 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 i n Coln also contends that the plainti ff was at least 50 percent negligent, barring recovery under comparative fault. The Court5 The Court ini tial ly i ndicated t hat the open and o bvious rul e 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-00 182 (Tenn. App., W.S., Dec. 30, 1994). Subsequent decisions i ndicated t hat the open and o bvious rul e 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-00 159 (Tenn . App., W .S., Aug. 27 , 1996); Shope v. Radio Shack , No. 03A01-9508-CV-00288 (Tenn. App., E.S., Dec. 7, 1995). -7- of Appeals’ analysis in eac h 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 r esolve 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 w hether it merely is c

onsidered 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 th e defendant to the plaintiff; (2) conduct by the defendant falling below the standar d of care amounting to a breach of that duty; (3) an injury or loss; (

4) causation in fact; and (5) proximate or legal c ause. Bradshaw v. Daniel , 854 S.W.2d 865, 86 9 (Tenn. 1993).

The initial requirement, the existence of a legal duty, is a question of law for the court whi ch requires considera tion of whether “such a rel ation exists between the par ties that the community w ill impose a legal obli gation upon one for the benefit of others -- or, mor e simply, whether the interest of the plaintiff which has suffered inv asion was entitled to l egal 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)).-8- 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 grav

ity of harm posed by defendant’s conduct outweigh the burden u pon def endant t o engage in alternat ive condu ct that wou ld have prevented the harm.” Among the factors for consideration are

the foreseeable probability of the harm or injury occurring; the possibl e magnitude of the potential harm or injury; the impor tance or social value o

f the activity engag ed in by defendant; the usefulness of the conduct to defendant; the feasibilit y of alternative, safer conduct and the relativ e costs and burdens associated with that conduct; the relative usefulness of the safer conduct; and the relativ e 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 gr avity of the potential har m against the burden imposed in preventing th at harm. McClung v. Delta Square Ltd. Partnership , 937 S.W.2d 891, 901 (Tenn. 1996). Assuming a duty of ca re 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 defend ant has conformed to the applicable standard of care, which is generally reasonabl e care under the circumstanc es. “Ordinary, or reaso nable, care is to be estimated b y the risk entailed through probable dangers attending to the particular situati on 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 establis hing the defendant’s duty in a particular case, as

well as the other element s of the negligence claim, the trier o f fact mus

t apply the pri nciples

of McIntyre v. Balenti ne , supra . In that case we joined nearly every jurisdiction in holding that a plaintiff’s contributory negligence no lon ger would bar recovery aga inst a tortfea sor and adoptin g a6 We have since distingu ished comparativ e negligence from comparative faul t. 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 ti me, there was a dist incti on in the dut y owed to a l icensee as opposed t o an invitee. This distinction ha s since b een ab olished. Hudson v. Gaitan , 675 S.W.2d 699 (Tenn. 1984). -9- system of comparative neg ligence in which the plaintiff’s negligence i s compared to the fault of the defendan t 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 negli gence. 833 S.W.2d at 54.

Our holding in McIntyre was a fundamental change in negligence law in Tenn essee. It was based o n conside rations o f fairn ess and co nsistenc y, as well as to avoid the inconsistent and often harsh results to plaintiff s whose negligenc e was far le ss than th at of a de fendan t or defe ndants. Although we have since analyze

d 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 r isk), we now addres

s for the firs

t time its effect on the traditional “ope n and obvious” danger doc trine.

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 respons ibility of either remov ing or warning a

gainst any latent or hidden dangerous conditi on on the premises of which one was aware or should have been aware thr ough the exercise of reaso nable diligence. Eaton v. McLain , 891 S.W.2d 587, 594 (Tenn. 1994); Smith v. Inman Realty C o. , 846 S.W.2d 819, 823 (Tenn. App. 1992).-10- Because the rationale for the impos ition of this duty was partly the “owner’s superior knowledge of a perilous c ondition on his premises,” a rule of no-liability also was derived: that a pr emises owner has no liabi lity 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. Pay ne , 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 t o warn or protect agai nst a known or obvious danger. Other jurisdi ctions analogized the open and obv ious rule to contributory negligence or assumpti on of risk, doctrines that als o barred a plaintiff’s recov ery for negligence. See Keeton, Personal Injuries Resulting From Open and Obviou s Conditions , 100 U. Pa. L. Rev. 629 (1952). R egardless of the terminolog y, the result was the same:

no recove ry.

Despite its traditional application by many co urts, the open and obvious doctrine was

widely criti cized for producing ar bitrary results and being “wrong in policy.” James, Tort Liability of Occupier s 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 [per sons] under all circumstances would necessarily

see and realize the dang er in the absence of contributory negligence, and this is particularly true i

f 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 obser ved 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 natur e of the alleged cause of harm was ‘apparent to all,’ without any8 See Regency Lake Apartments Associ ation, 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 Brot hers, Inc. , 457 N.W .2d 614 ( Iowa 19 90); Bertrand v. Alan Ford, I nc. , 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). -11-

consideration of the multitude of othe r 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 comp arative fault principles led numerous j urisdictions to reconsi der the open and obvious rul e and to conclu de that it should no t automa tically pre clude rec overy. 8 As the Mississippi Supreme Co urt observed:

Emerging from other juri sdictions is a modern trend toward holding that the obviousness of a danger does not necessarily reli eve the owner’s duty of care. Moreover, many states have limited the use of this doctrine by holding that a plaintiff’s knowledg e or the obviousness of a dangerous c ondition does not preclude recovery, a nd, some instance s, states have expressly abolish ed the open and obvious doctri ne after the adoption of comparative neg ligence.
Tharp v. Bunge Corp. , 641 So.2d at 24. The Illinois S upreme Court agrees that “[t]he manifest trend of the courts in this country is away from the traditiona l rule absolving, ipso facto , owners and occupiers of land from liability for in juries resulting from known or obvious conditions. . . .” Ward v. K Mart Corp. , 554 N.E.2d at 231.

Nearly every jurisdiction has also r elied upon the Restatement (Second) of Torts, § 343A, which states the rule as follows:

(1) A possessor of land is not liable to his invi tees for physical harm caused to th em by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should9 See , e.g. , Harrison v. Taylor , 768 P.2d at 1321; Tharp v. Bunge C orp ., 641 So.2dat 25. -12- anticipate the harm despite suc h 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 d anger it involves,” and the word “‘obvious’ means that both the condition and the risk are apparent to and would be recog nized by a reasonable man,in the position of the visitor, exerci sing ordinary perc eption, intelligence, and judgment.” Restatement (Second) of Torts, § 343A (comment b) . The restatement further provi des that the premises owner’s dut y exists if the harm c

an or should be anticipated notwithstanding the known or obvious danger:

Such reas on to expe ct harm to the visito r from kn own or obvious dangers may arise, for example, wh ere 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 w here the possessor has reason to expect that the inv itee will proceed to encounter the known or obv ious danger because to a reasonable man in his positi on the advantages of doing so would outweigh the apparent risk.
Restatement (

Second) of Tor

ts, § 343A (c

omment f). As the Michig an Supreme Court has said: “If the ri sk of harm remains unreasonable, despite its obviousness or despite k nowledge of it by the i nvitee, 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 obvio us rule en tirely, 9 the majority follow the Restatement position and recogniz

e that duty remains a necess ary part of the analysi s. In Ward v. K Mart , supra , for example, the Illinois Supreme Court explained:10 See Regency Lake Apartments Associ ation Lt d. v. French , 590 So.2d at 973 (comparative negl igence appli ed where plai ntiff tripped over exposed tr ee 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 Brother

s, 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 Industri es, Ltd. , 469 N.W.2d at 659 (open and obv ious defense rej ected under rest atement 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). -13-

[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 princi ples expressed there are consi stent with the general duty of reasonable care owed to invitees and licensees, and they are relevant t

o 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 pol icy considerations, the magnitude of the burden of guarding against the injury, and the consequ ences 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 fir

st 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 analy zed under the principles of comparative fault. 10

TEN NES SEE LAW

We ag ree with th e rationa le of the majority o f courts which have limited or restricted the traditional “open and obv ious” rule in favor of the Restatement approach. We also agree that attempti ng to analyze the duty issue simply by labeling

some conditions “open and obv ious,” without consid eration of any surrounding cir

cumstances, promotes arbitrar y and inconsistent resul ts. Moreover, the open and obvious rule is inconsistent with our cases which analyze duty by balancing foreseeability and gravity of harm w

ith feasibility and availability of alte rnatives that would have avoided the harm.-14- We deem the Restatement approach to be the better reasoned and more persuasive analy sis. The principles stat ed in the Restatement (Second) of Torts, § 343(A) relate dir ectly to foreseeability

and facilitate consideration of the duty is sue. Whether

the dang er was

known a nd appreciated b y the pl aintiff, whether the risk w

as obvious to a person ex ercising reasonable per ception, intelligence, and judg ment, and whether there w as some other reason for the defendant to foresee the harm, are all relevant considerations that provide more balance and insight to the anal ysis than merely l abeling a particular r isk “open and obvious.” In sum, the anal ysis recogniz

es that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on a defendant, de spite its potentially open and obv ious nature.

Accordingly, w

hile we restrict the once broad application of the “open and obvious” doctri ne, we stress that duty remains a separate component of a plaintiff’s negligence ac tion. As we said in Blair v. Campbell , 924 S.W.2d 75 (Tenn. 1996), “our adoption of the pr inciples of comparative fault did not alter the analysis applicabl e 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 afte r a duty is es tablishe d does co mparati ve fault c ome into play.

We believe our analysis is cons istent with other post- McIntyre cases. In Perez v. McConkey, supra , we addres sed the e ffect o f compa rative fault on the assumption of risk doctr ine which, like contr

ibutory negligenc

e, 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 kno wn risk that is inherent in a particular activity, such as watching a baseball game from an

unscreen ed seat, should co ntinue t o be anal yzed in term s of duty. Conversely, secondary implied assumpti on of risk, in which a pl aintiff unreasonably or-15- reasona bly confr onts a kno wn risk, sho uld be con sidered u nder com parative 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 circums tances, including the confronted risk. 872 S.W.2d at 905.

We also think our analysis is cons istent 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 al located 40 percent of the negli gence to t he guest a nd 60 per cent to th e homeo wners. Alth ough we cited the traditional rul e that the defendant has no duty to w arn against a danger that is open and obvious, w e did so in the context of the specific facts of that case. Our analysis of the duty issue under the facts of the c ase 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 guar d against the acts set forth in the complaint invol ves an analysis of the foreseeability of the risk to which [the plaintiff] w as exposed. In other wor

ds, 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 th e one whic h cau sed [her] injur ies. ’ Id

.
Eaton , 891 S.W.2d at 594 (italics in origi nal). Although we con cluded that, under the specific facts of the Eaton case, no duty should be impos ed, our holding recognize d that th e result co uld easil y have been differ ent and a duty could have been imposed:-16- In order for the [defendants] to be char ged with the duty to leave on the li ght in the hall and to lock the basement door, they must have been able to reasonably foresee that [the pl aintiff] would get out of bed in total darkness, w alk across the hall, and s tep into the basement stairwel l, all without turni ng on any lighting whatsoev

er. While our holding would li kely be different if no lighting had been p rovided or if it had been inoperative, [the plai ntiff’s] failure to turn on any lights, coupled with her willingnes s to open the door and step into an unfamiliar area i s such a radical departure from reasonable conduct und er the circumst ances th at the [d efenda nts] coul d 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 stairw ell an open and obvious dang er and then hold that no duty should be imposed; inste ad, the duty question w as analyzed with respect to the traditional components of foreseeabi lity and risk of harm as applied to the facts of the case. Id . at 594.

To summarize, we join th ose jurisdictions that ha ve limited the open and obvious doctrine i n 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 foresee ability an d gravity of harm, an d the fe asibility a nd availab ility of al ternative conduct that would have pr evented the harm. The factors prov ided in the Restatement (Second) of Torts, § 343( A) relate directly

to the foreseeability question; i n short, if the foreseeabi lity and g ravity o f harm posed fro m a defendant’s conduct, even if “open and obvious,” outweig hed the burden on the defendant to engage in alternati ve conduct to avoid the ha rm, there is a duty to act with reasonable car e. The circumstances of the case ar e then analyzed under comparative fault.

We reject the defendants’ contentions that restr iction of the open and obvious

danger rul e will pr

eclude the tr

ial court fr

om applying

mechanisms-17- such as summary judgment and directed verdict to ev aluate cases. By retain ing the separate analysis of duty, and not totally subsuming all cases by apply

ing comparative fault, the mechanisms of sum mary judgment and directed verdict remain viable to eval uate cases at preliminary stages in the proceedings. A summary judgment remains appr opriate, for example, wher e the plaintiff has not produced sufficient evidence to meet the “duty” component, or any other component of a negligence clai m, as a matter of law. Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993). A directed verdict, on the other hand, rema ins appropriate if the court evaluates the ev idence in a light most fav orable 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.

APPLICA TION Coln v. City

of Savannah Although the trial court did not apply a separate anal ysis of the duty requirement, it implicitly found that the defendant, City of Savannah, owed a duty of reasonable care to the plaintiff, an d it applied comparative fault principles in assessing 70 percent of the neg ligence to the City and 30 percent of the negligence to the plaintiff. In reversing the judgment, the Court of Appe als also applied comparative fault anal ysis, but found that the plaintiff was at least 50 percent negligent , barring re covery.

Our review of the tri al court’s determination of duty, a question of law, is de novo . Our review of the t rial court’s findings of fact, on the other hand, is “ de novo upon the record of the trial c ourt, accompanied by a presumption of the correctness of the finding, unless the prepond erance of the evidence is otherwise.” Tenn. R. App. P. 13(d).11 We believe these fact s disti nguish thi s case from the pre- McIntyre cases cited by the defendant for

the proposi tion t hat a cit y or municipa lit

y has no duty

or li ability to ensure against injuries from crack s or im perfec tions in side walks. See , e.g. , City of Knoxvill e v. Hood , 97 S.W.2d 446 (Tenn. App. 193 6). -18-

We find that the City owed a duty of care und er the facts of this case. The deviation betw een the surface of the brick paver s and concrete sidewalk created a foresee able probability of harm. Although the deviation w as 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 C ity had actual knowl edge of the deviation when the pavers were instal led and was aware of the av ailability of correc

tive action. 11 Despite such knowledg e 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 unr easonable despite its open and obvious nature and the foreseeabi lity and gravit y of harm, therefore, outweig hed the burden imposed in protecting against that harm. See McCall v. Wilder , 913 S.W.2d at 153.

Having found a duty ex isted under the facts of this case,we think that the trial court corr

ectly analyzed the

conduct of the plaintiff and City under comparative fault principl es. In Eaton we said that relev ant factors for consideration include but ar e not limited to: (1) the r elative closeness of the causal relationship betw een 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 k

new of the risk, or shoul d have known of it; (3) the extent to which the defendant failed to re asonably utilize an existing opportunity to avoid the injury to the plaintiff; (4) the exist ence of a sudden emergency req uiring 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 s o forth. 891 S.W.2d at 892.-19- 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 (T enn. 1995). After evaluating the evidence, the trial court assessed the negligence as 30 percent to the plaintiff and 70 per cent to the City. In our view, given the evidence in the record, and the presumption of correctness afforded, the trial court’s findi ngs were not clearl y erroneous. The Court of Appeals therefore erred in rev ersing the judgment.

Although not addressed by the Court of Appeals, the City maintains its reliance on immunity under the Governmental Tort Li ability Act:
Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury w

hich may result from the acti vities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprie tary.
Tenn. Code Ann. § 29-20-201(a)(Supp. 1997). As not ed by the trial court, such immunity may be removed under certain circumstances, including “any injury caused b y a defect ive, unsaf e, or dang erous con dition of any street , alley, sidewalk or highw

ay, owned and operated by such governmental entit y.” Tenn. Code Ann. § 29-20-203(a)(Supp. 1997). Removal of immu nity under this section, however, r

equires that “construc

tive and/or actual notic e 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 parti cular site is defectiv e, unsafe, or dangerous for the purpose of remov ing governmental immunity is a question of fact. Helton v. Knox County, Tennessee , 922 S.W.2d 877 (Tenn. 1996). The trial court found:-20- The threshold issue in this case is the question of notice or the absence of notice and this Court finds that the Defendant City throug h its relationship with William Gilchrist created a defectiv e, unsafe and dangerous condition. They surprisingly knew of it in its inception, but accepted i t and made no attempt to correct it. . . . [T]he Ci

ty then allowed this

condition to exist in an ever worsening position or condition as it settled for a period of at least thr ee months depending upon the precise date w hen this portion of the project was completed and perhaps a period of as much as four months or in exces s 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 conditi on was the proximate cause of the injuries suffered. . . .

The evidence in this recor d, reviewed with the presumption of correctness, supports the trial court’s finding that the sidewalk wa s defective, unsafe or dangerous, as wel l as the finding that the City had actual notice of the condition. Tenn. R. App. P. 13(d) . Moreover, because w e have held that comparative fault applies to conduct that is broader than neg ligence, 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 comparat ive fault principles under Tenn. Code Ann.§ 29-20-203 was entirel y consistent with McIntyre v. Balenti ne , supra
. See Bradford v. City of Clarksville , 885 S.W.2d 78 (Tenn. App. 1994).

Vancleave v. Marko wski 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 homeown ers’ swimming pool deck was open and obvious and granted summary judgment to the homeowners as a matter of law.

Summary j udgment is approp riate onl y if the mo ving party sh ows that no genuine and material factual issue exists and he or

she is entitled to reli ef-21- as a matter of law. In rul ing on such a motion, the cour t must consider the evidence in a light most favorable to the non-moving party and must allow all reasonable inferences in his o r her favor. A summary judgment may be appropriate, therefore, “w hen there is no dispute over the evidence establishi ng 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” c

omponent of a negligence claim, we conclude that the low er courts erred in their rulings in this case. When reviewed with the applicable standards, the evidence show s that the homeowners remov ed the skimmer from their pool deck thereby creating a large and dangerous opening in the deck which they di d not elect to oth erwise cover. The home owner i nvited

the plai ntiff onto the deck, where they walked in close prox

imity while talk

ing and looking into the yard. Although the pl aintiff had not previously visited the homeowners , she was not warned about the opening in the deck. There w as a factual issue as to the proximity and exact distance between the plaintiff and home owner, their actions just before the plaintiff fe ll into the opening, and the existence of conduct that may have distracted the plaintiff.

In our view, the plai ntiff presented sufficient evidence on the issue of whether the risk of harm w as unreasonable despite its ope n and obvious nature and whether the foreseeabi lity and gravit y 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-22- 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 neglig ence action, a risk is un reasonable and gives rise to a duty if the foreseeability and gravity of harm posed by a defendant’s conduct, even if open and obvi ous, outweigh the burden up on the defendant to engage in conduct that w ould have prevented the har m.

Applying this rule, we reverse the judgment of the Court of Appeals in Coln v. City of Sav

annah , a nd re in stat e t he ju dg me nt

of th e t ri al co ur

t. We also reverse the judg ment of the Court of Appeals in Vancleave v. Markowski and remand the case to the trial court for further proce edings consistent with this opinion. Costs of the appeals in each case shall be paid by the def endants.

________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Reid and Birch, JJ. Holder, J. - see separate concurring opinion-23-

# FILED

March 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

HAZEL MAXINE COLN and ) husband, CARL F. COLN, ) ) HARDIN LAW Appellants, )

) ) V. ) HON. JULIAN P. GUINN , JUDGE ) ) CITY OF SAVANNAH, TENNE SSEE, ) ) 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 c

oncur in the

results, Iwrite sep

arately because of my disagreement with this

Court’s expansiv

e use of the term “duty.” This Court has properly, in my opi nion, used a duty analys is to determine that class o f people to whom reasonable care must be e xercised. 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).-25- One commentator has stated that the question o f whether there is a duty has most often seemed helpful in case s where the only real issue is whether the defendant stands "in any such relation to the plaintiff as to create any legally recognized ob ligation of con duct for the pl aintiff’s be nefit." W . Page Keeton, Prosser & Keeton on the Law of Torts, § 42 at 274 (5th ed. 1984). In courts that use "duty" to l imit legal redress w here causation is clear an d direct, the ordinary usage of "duty:"

has been to confine the word "duty " to questions o

f the existe nce of some relation between the defendant and th e plaintiff which give

s rise to the obligati on of conduct in the first instance, and to deal with the connection bet ween that obligation, once it has ar isen, and the consequences which have followed in the language of "proximate c ause."

Id . at 275.

This Court, however,has followed the lead of juri sdictions that have expanded the use of a duty analysis in premises

liability cases. The majority states:

The analysis, therefore, as i n any

negligence case, is first upon duty in accordance with the foreseeabi lity and gravity of harm, and th e feasibility and availability of alternatives; if a duty is imposed, then the surrounding circumstances are analy zed under the principles of comparative fault.-26- I have no quarrel w

ith an examination of foreseeabili ty and the gravity of harm to dete rmine whether a duty ex ists. Where I begin to differ with the majority is in the examination of the following factors as part of the an alysis of duty: whethe r the dan ger wa s known and appr

eciated by the p laintiff; whether the risk w

as obvious to a person ex ercising reasonable per ception, intelligence, and judg ment; and whether there w as some other reason for the defendant to foresee the harm. These factors ar e more properly consider ed by the trier of fact in determining whether a duty has been br eached.

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. A pp. 1991) (holding that whether a hazard i s open and obvious is not r elevant to determine the existence of duty, rather it is relevant to dete rmining if the duty w as breached). I would permit a jury

to decide if a risk is unr easonable. Klopp v. Wackenhut Corp ., 824 P.2d 293, 298 (N.M. 1992) (holding that it is for the jury to decide in virtually eve ry case whether a dangerous condition on the premises involved an unreasonable risk of danger and whether the occupier should reason ably anticipate that the visitor will not discov er or realize the "obv

ious" danger).

Unlike the majority of thi s Court, I would find that the doctrine of "open and obvious" has been subsumed i nto the comparative fault scheme. Once a duty is fo und to ex ist as t o the cl ass of per

sons to w

hich the plainti ff belongs, the obviousness of the danger and the plaintiff's confro ntation of that danger would be but tw o additional factors for the jur y to consider in determi ning the parties' percentages of fault. Only if reasonable minds could not differ should a motion for summary judg ment or directed verdic t be granted. See-27- Hertelendy v. Agway Ins. Co ., 501 N.W.2d 903, 908 (Wis. App. 1993) (holding that the application of open and obv ious 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 obvi ous rule by analyz ing the reasonableness of a party's actions is consistent w ith 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. Louisvil le & N. Terminal Co. , 106 Tenn. 490, 61 S.W. 1029, 1031 (1901) ("This was a dang er that was open and obvi ous to plaintiff the moment he climbed upon the c ar, 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 li ability from dangers that are obvious , or as well

known to the person injured as to th e owner ") (emphasis in origi nal); Park v. Sinclair Refining Co. , 142 S.W.2d 321, 324-25 (Tenn. Ct. App. 1940) (holdi ng no liability is established "when it

appears that the injured pers on's knowledge of the danger surpassed or equal ed that of the defendant").

In these cases, I would find the defendants owed a dut y 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' acti ons and the reasonableness of the plaintiffs' actions in confronting the danger to be decid ed by the trier of fact in-28- comparing the fault of the parties.The relevant inquiry is the conduct of each of the parties and whether that conduct falls below the st andard of care so as to breach the duty owed.

Janice M. Holder, Justice