# FILED
September 14, 1998 Cecil W. Crowson Appellate Cou rt 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/Appellee

s. )

IN THE COURT OF AP PEALS 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 PLAINTIF F/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 WILLIA M B. CAIN, JUDGE-2-

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/Appellee

s. ) 

## O P I N I O N

This is a premises liabi

lity case in w

hich the plaintiff

, Doris Keown, sue

d the defendants ,
owner and tenant, for injuries sustained by plaintiff in a fall allegedly caus ed by a 3 inch rise from a parking are

a to the concrete

walkway at the entrance of a hotel. The Trial Judge re ndered summary judgment for the defendants, and plaintiff appealed . The so le 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 decorativebrick pavers installed in front of the entrance of its Ci

ty Hall building. The brick pavers were installed on t op of a be d of sand in an are a 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 c

oncrete sidewalk that ledto the door of the City Hall b uilding. On November

2, 1992, the plaintiff, Hazel Coln, who was 68 years of age, walked ac ross the brick pavers toward the entrance of t he buildin g a nd tripped on the lip of the concrete sidewalk adjace

nt to the brick pave

rs. She fell, injuring her left wrist and arm. C oln 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 lan dscape desi

gn er who installed the brick pavers, testified that there was a deviation approximately

three-eigh ths of an inch between the pavers andsi dewa lk when the paver s were installed.

Gilchrist testified that the deviation was due to the settl ing of sand beneath the pav ers. G ilchrist told Bill Fox, the assistant-3- 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 dev iation between the pavers and the sidewalk, but felt that it was acceptable and should not be corrected. PaulLebovit z, a landscape ar

chitect, testified t hat it is reasonable to expect some deviation betweenthe tw o su rfaces 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 p laintiffs alleg

ed that the City

“had neglige

ntly andcarelessly left [the area of the new brick paver

s] defective and i n disrepair” and that the City had created “a dang erous condition for the plaintiff and any other person walking down said sidewalk.

- - - - In each of these pr

emises liability

cases, the plaintiff contends tha t the open and obvious rule does not preclude finding a duty owned b y the de fendant landowner that an open and obvious dang

er is merely

a factor for

consideration in determining comparat

ive fault under McI

ntyre v. Balentine

. The landowner defe

ndants in both cases maintain that the rule is intact; that there is no d uty of care when an open and obvious condition re

sults in injury to the

plaintiff. The City of Savannah in C oln also contends that the plaintiff was at least 50 percent negligent, barring recovery under compar ative fault. The Court of Appeals’ analysis in each case reflects the co nflic ting views about duty and comparative fault it has expressed in a ser

ies of its unpublishe

d decisions.

- - - - A negligence claim requires proof of t h e following elements: (1) a duty of care owned by the defendant to the plaintiff; ( 2) c onduct by the defendant falling below the standardof carea mounting 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, app lica tion of duty principles resulted in imposing a duty on an owner or possessor of pre mi ses to exercise reasonable care under the c ircumstances to a guest (lice nsee) or business

invit ee. Th e duty includes the responsibility of either removing or warning against any latent

or hid den dangerous condition on the premises of which one was aware or should have been aware through the exercise of r easonable d iligence. Eaton v. McLain , 891 S.W.2d 587, 594 (Tenn. 1994); Smithv. Inman Realty Co ., 846 S.W.2d 819, 823 (Tenn. App. 1992). Because the rat iona le for the impositio n of this duty was partly the “

owner’s sup erior knowledge of a perilous-4- condition on his premise s,” a rule of no-liability also was derived: that a premises owner h as no liability for injuries sustained from dangers that were “obvious, r easonably apparent,or as well known to the invitee [or li censee} as to the owner.” Kendall Oil Co. V. Payne , 293 S.W.2d 40, 4 2 (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 state s the rule as follows: (1) A possessor of land is not l iable to his invitees for phy sic al harm caused to them by any activity or c

ondition on the land w

hose danger is known or obvious to them, unless th e p ossessor should anticipate the harm despite such knowl

edge or obviousn

ess.

- - - - Such reason to

expect harm

to the visitor from known or obvious dangers may arise, for example, where the pos s essor has reason to expect that th e in vitee’s attention may be distracted, so that he will

not discover what

is obvious, or will forget wh at he has discovered, or fail to protect himself against i

t. Such reason may also arise whe r e the possessor has reasonto expect that the invitee will proceed to en cou nter the known or obvi ous danger because to a reasonable man in his position the advantages of doin g so would outweigh the apparent risk.

- - - - TENNESSEE LAW We agree with the rationale of the majority

of courts which have lim

ite d or restricted the traditional “open and obvious”rule in favor

of the Restatemen

t approach. We als

o agree that attempting to

anal yze the duty issue simply by labeling some conditions “ope n and obvious,” without consideration of any surrounding circumstances , pr omotes arbitrary and in co nsistent results. Moreover, the open and obvious ruleis inconsistent with our cases whichanalyze duty by bal anci ng fo res eeab ili ty and gravity of harm with feasib i lity and availability of alternatives that would have avoided the harm. We d eemthe Restatement approach to be the better reasoned and mor

e persuasive an

alysis.

- - - - We find that

the City owned a duty of care unde r the facts of this case. The

deviatio n betwe en the surface of the brick pavers and conc

rete sidewalk cr

eated a forese

eable probability

of harm. Altho ugh 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 acc ess to-5- the City Hall

building. It is also significant that the City had actual knowledge of the d eviation when the pavers were installed and was aware of the availability of corrective action.” Despite su ch knowledge and the foreseeable risk of harm to persons who entered the City Hall building, the

City took no steps to

r emove or warn against the danger. In our view, the risk

of harm was unre

asonable despite

its open and obvious nature and the foreseeabi lity and gr

avity of har

m, therefore, outweighed the b urden imp o sed in protecting against that harm. See McCall

v. Wilder , 913 S.W.2d at 153.

- - - - The evidence in this

rec ord, reviewed with the presumption of

correctness, supports thetrial 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, beca usewe have held that comparative fault applies to conduct that is broad er than negligence, such as strict liab ility in tort, see, e.g., Whitehead v. Toyota Motor Corp ., 897 S.W.2d 684 (Tenn. 1995). W e observe that the trial court’s application of comparative fault principle s under Tenn. Code A nn. § 29-20-203 wa

s entirely consistent with McIntyre

v. Balentine, supra. See Bradford v. City of Clarks

ville , 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 andhe or she is

entitled to relief as a matter of law. In ruling on such a motion , the cou rt 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 the re is n o dispute over the evidence establishing the facts tha t cont rol the application of a r

ule of law.” Byrd v. Ha

ll , 847 S.W.2d at 214-215, Tenn. R. Civ. P. 56.

- - - - CONCLUSION We conclude that an open and obvious danger th at causes an injury to a

plaintiff does not a

utomatically

result in a finding of no duty and no landowner liability. As in any negligence

actio n, a risk is unreasonable and gives rise to a duty if the foreseeability and gravi ty of h arm pos ed b y a defendant’s conduct, evenif open and obvious , outweigh the burden upon the defendant to engage in condu ct t hat would have prevented

the harm.

In the present case

, the Trial Court ma

de no finding of f

act, but the motion of def

endants for summary judgment stated:

Comes now Defendant, JAH, Inc. (Hereinafter “JAH”), pursuant to Ten nessee Rule of Civil Procedure 56, and m oves this Court for a n order grantin

g summa r y judgment in its favor. JAH owed no duty to Plaintiff Keown because the hazard she complains of was open and obvio us.-6- 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 o ff the lobby area of the hotel when Doris Keown fell. I hear d a crash and went quickly to the e nt rance. I saw her head resting ag ainst 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 adjace

nt to it. 6. The sidewalk in front of the entrance is composedof a brown aggregate k no wn as Futura Stone Outdoor Su rface Coveri ng. 7. I have measured

the height

of the sidewalk in front of this particular entrance. It is approximately three a nd one-half inches high.

Plaintiff relied upon a deposition of a consulting engineer that the paving of the parking lotwas a different color from that of the sidewalk and that

the “step up” of a

pproximate

3-1/2 inches was readily

discernable at s

ome distance, but t

hat it was not discernable from a short distance because the color of the vertical face of the sidewalk was thesame as the horizontal face of the sidewalk.

P laintiff’s other expert testified of various “standards” and “codes” which were no t shown to be locally applicable or applicable to the facts of the present ca se.

Neverthel ess, the dec ision of the Supreme Court in Coln v. City of Savannah , quoted above, requires a re-

evaluation of the

summary judg

ment in the light of the law de

clared in Coln and its applicability to the facts of the present case.

Where reasonable minds

might differ as t

o degree of fa

ult, summary j udgment on this issue is not in order.-7- The summary judgment in favor of defendants

is reversed, and

the cause is rema

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

endants.

REVERSED AND REMANDED.

_________________________________ HENRY F. TODD, JUDGE

CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIA M B. CAIN, JUDGE