FILED

September 14, 1998

Cecil W. Crowson

Appellate Court Clerk

DORIS KEOWN, )

 ) Davidson Circuit

Plaintiff/Appellant, ) No. 96C-2810

 )

VS. )

 )

FIDDLER’S INN, d/b/a FIDDLERS INN ) Appeal No.

NORTH and JAH, INC., ) 01A01-9712-CV-00730

 )

Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

HONORABLE BARBARA N. HAYNES, JUDGE

David B. Lyons, #11046

601 Woodland Street

Nashville, Tennessee 37206

ATTORNEY FOR PLAINTIFF/APPELLANT

Scott A. Rhodes, #16870

BREWER, KRAUSE & BROOKS

P.O. Box 23890

Nashville, Tennessee 37202-3890

ATTORNEY FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED.

HENRY F. TODD, JUDGE

CONCUR:

BEN H. CANTRELL, JUDGE

WILLIAM B. CAIN, JUDGE
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DORIS KEOWN, )

 ) Davidson Circuit

Plaintiff/Appellant, ) No. 96C-2810

 )

VS. )

 )

FIDDLER’S INN, d/b/a FIDDLERS INN ) Appeal No.

NORTH and JAH, INC., ) 01A01-9712-CV-00730

 )

Defendants/Appellees. )

O P I N I O N

This is a premises liability case in which the plaintiff, Doris Keown, sued the defendants,

owner and tenant, for injuries sustained by plaintiff in a fall allegedly caused by a 3 inch rise

from a parking area to the concrete walkway at the entrance of a hotel. The Trial Judge rendered

summary judgment for the defendants, and plaintiff appealed. The sole issue on appeal is the

correctness of the summary judgment.

Heretofore actions for defective premises have been subject to summary dismissal under

the “open and obvious risk.” However, on March 30, 1998, the Supreme Court revised the rule

in Coln v. City of Savannah, Tennessee, Tenn. 1998, S.W.2d , in which the Court said:

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 and sunny, and that nothing prevented

her from seeing the brick pavers or the sidewalk.

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. Gilchrist told Bill Fox, the assistant
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manager of 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.

- - - -

In each of these premises liability cases, the plaintiff

contends that the open and obvious rule does not preclude

finding a duty owned by the defendant landowner that an

open and obvious danger is merely a factor for consideration

in determining comparative faultunderMcIntyre 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 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.

- - - -

A negligence claim requires proof of the following

elements: (1) a duty of care owned 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).

- - - -

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. 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).

Because the rationale for the imposition of this duty

was partly the “owner’s superior knowledge of a perilous
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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).

- - - -

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 anticipate the harm

despite such knowledge or obviousness.

- - - -

Such reason to expect harm to the visitor from

known or obvious dangers may arise, for

example, where the possessor has reason to

expect that the invitee’s attention may be

distracted, so that he will not discover what is

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.

- - - -

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.

We deem the Restatement approach to be the better

reasoned and more persuasive analysis.

- - - -

We find that the City owned 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
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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.” 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.

- - - -

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).

- - - -

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 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.

- - - -

CONCLUSION

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.

In the present case, the Trial Court made no finding of fact, but the motion of defendants

for summary judgment stated:

Comes now Defendant, JAH, Inc. (Hereinafter

“JAH”), pursuant to Tennessee Rule of Civil Procedure 56,

and moves this Court for an order granting summary

judgment in its favor. JAH owed no duty to Plaintiff Keown

because the hazard she complains of was open and obvious.
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Further, the Court should find Keown’s negligence was fifty

percent or more as a matter of law under the circumstances of

this case.

The affidavit of the hotel manager stated:

5. I was in an office off the lobby area of the

hotel when Doris Keown fell. I heard a crash and went

quickly to the entrance. I saw her head resting against the

door and she was lying on the sidewalk. The entrance where

she fell is located on the east side of the hotel and there are

benches adjacent to it.

6. The sidewalk in front of the entrance is

composed of a brown aggregate known as Futura Stone

Outdoor Surface Covering.

7. I have measured the height of the sidewalk in

front of this particular entrance. It is approximately three and

one-half inches high.

Plaintiff relied upon a deposition of a consulting engineer that the paving of the parking

lot was a different color from that of the sidewalk and that the “step up” of approximate 3-1/2

inches was readily discernable at some distance, but that it was not discernable from a short

distance because the color of the vertical face of the sidewalk was the same as the horizontal face

of the sidewalk. 

Plaintiff’s other expert testified of various “standards” and “codes” which were not

shown to be locally applicable or applicable to the facts of the present case.

Nevertheless, the decision of the Supreme Court in Coln v. City of Savannah, quoted

above, requires a re-evaluation of the summary judgment in the light of the law declared in Coln

and its applicability to the facts of the present case.

Where reasonable minds might differ as to degree of fault, summary judgment on this

issue is not in order.
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The summary judgment in favor of defendants is reversed, and the cause is remanded to

the Trial Court for further proceedings and final disposition. Costs of this appeal are assessed

against the defendants.

REVERSED AND REMANDED.

_________________________________

HENRY F. TODD, JUDGE

CONCUR:

____________________________

BEN H. CANTRELL, JUDGE

____________________________

WILLIAM B. CAIN, JUDGE