# FILED
November 9, 1998 Cecil W. Crowson Appellate Court Cle rk LUCY L. BOND, ) ) Davidson Circuit Plaintiff/Appellant, ) No. 96C-4542 ) VS. ) ) BELLE MEADE FUND PAR TNERS, ) Appeal No. L.P.; BRANCH PROPERTY, L.P., ) 01A01-9802-CV-00059 BRANCH PROPERTY LTD. ) PARTNERSHIP, ) ) Defendants/Appelle

es. )
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE APPEAL FROM THE CIRC UIT COURT OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE HONORABLE THOMAS W. BROT HERS, JUDGE

Keith Jordan, BPR #3000 222 Second Avenue

, North Suite 360-M Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLANT M. Bradley Gilmore, #13804 PARKER, LAWRENCE, CANTRELL & DEAN 200 Fourth Avenue N

orth Fifth Floor Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCURS: WILLIAM C. KOCH, JR., JUDGE WILLIAM B. CAIN, JUDGE-2-

LUCY L. BOND, ) ) Davidson Circuit Plaintiff/Appellant, ) No. 96C-4542 ) VS. ) ) BELLE MEADE FUND PAR TNERS, ) Appeal No. L.P.; BRANCH PROPERTY, L.P., ) 01A01-9802-CV-00059 BRANCH PROPERTY LTD. ) PARTNERSHIP, ) ) Defendants/Appelle

es. ) 

## O P I N I O N

The plaintiff sued for injury suffered when she stepped into a hole in the asphalt surface of a parking lot provided

for customers of Kroger Company. Kroger was dismissed by nonsuit, and the remaining defendants were dismissed by summary judgment. Plaintiff appealed and presented the following issue:

I. Whether

a genuine issue of

material f

act h as been raisedby the plaintiff/appell ant, so as to warrant th

is cause to be tried on its meri

ts. The appellees-

defendants pre

sented the followi

ng issues: 1. Whether

t he trial court properly granted summary judgmentto the defendants based on the plain

tiff’s failur e, after adequate time for discovery, to establish the existence of any evidence that the

defendants c

rea ted or had actual or constructive notice of an alleged defective condi tion on the premises that cau

sed Ms. Bond’s fall. 2. Whether

th e tri al court abused it s discretion in excluding the affidavits of James Vance under Tenn.R.Evid. 702 and 703. Pertinent portions of the complaint are:

That on or about Dece mbe r 19, 1995, LUCY L. BOND, travele d to t he Kroger Co. Grocery store located at 4500 Harding Roa d, Na shville, Davidson County, Tennessee. That while stepping out of her vehicle, she

fell as a result

of a sizeable hole in the pavement of the parking lot, resulting in a fractured ankle and other serious and complicatedmedical problems. That t he hole in the park ing lot was a haza

rdous, dangerous c ondition unknown to the Plaintiff and is indica tiv e-3- of failure on the part of

the Defendants t

o properly mainta

in the premises for patrons of the store. That the Defendants knew or should have known of the dangerous and hazardous conditions of the par king lot, but failed to properly maintain and repair such.
The motion for summa

ry judgment states: The undisputed facts e

stablish that the de

fendants ne it her created the condition nor had actual or constructive notice of it. The undisputed facts further establish that before the date of the plaintiff’s accident, the defend an ts exercised reasonable ca

re in maintaining th

e parking lot. Evidence submitted in support of the motion consisted of the following: 1. The deposition of plaintiff containing the following:

Q. And when you got out of your van, you got out the driver’s side? A. Yes.

- - - - Q. Did you step down right into the hole? A. Yes. Because whe n I stepped down into the hole, that first step I was into the hole and I think I was on the ground.

- - - - Q. Can you describe the hole that you fell in? A. I mean, it wasn’t like a big crater hole. It was like a -- I mean, it was just a -- like it was not smooth. It was just a hole. You know, it was -- Q. Do you know how dee p it was? A. Two or three inch es.
- - - - Q. My question is: Do you remember looking at the hole right afte

r you fell? A. No.
2. The affidavit of

defendants’ man

ager that, ever

y 3 or 4 weeks,

she inspected the parking lot for defects, including potholes and had any discovered defects repaired.

3. An “on site maintena nce person” wa

s instructed to inspe

ct the parking lot d

aily for defects and to repair defects found.-4- 4. A commercial sweeping service swept the lot daily.

If this service had reported any defects they would have been repaired immediately.

5. Business records of the defendants show t hat t he lot “underwent a major improvement in 1988, potholes were patched and the pavement was resealed in 1994.

6. “Parking lot repair” was performed on February 10, 1995, “asphalt repair” was performed

on May 24, 1995, “seal and stripping lots” was performed August 23, 1995, “speed bump repairs” were performed on December 14, 1995, and “concre te island replace” was performed on December 21, 1995.

7. The lot was pressure washed intermittently and swept regularly.

It is significant that, although the defendants’ affidavits indicate that systems and personnel were in place

to assure integrity and safety of the parking lot, no evidence is found that “on or abou t December 19, 1996" or at any time shortly preceding that date, the lot was examined and found to be free of potholes. Moreover, the lack of any report of potholes from those who had the d

uty to report same

is not conclusive e

vidence that ther

e were no pothole

s.

In contrast to the inference to be drawn from the negative evidence

that no pothole was reported, there is the positive deposition of plaintiff that there was a pothole at the time of her injury.

For

purposes of reviewing the summary judgment, this Court must view the evidence of plaintiff in its most favorable light and find that the existence of the pothole was a disputed issue fact which mu st be resolved by a trial rather tha

n by summary judgmen

t. Barber v. Ralston Purina Co ., Tenn. App. 1991, 825 S.W.2d 96.-5- What constitutes reasonable care on the part of a parking lot in provi

ding for the safe

ty of invitees is a question for the jury. Mumford v. Thomas , Tenn. App. 1980, 603 S.W.2d 154.

In the past, some “trip and fa ll” suits have been dismissed under the “open and obvious rule.” Plaintiff

testified that the pothole was not open and obvious to her because her foot went into the hole as she stepped from her vehicle. If her version of the incident is found to be true, then the open andobvious rule might be held to be inapplicable. Moreover, the Supreme Court has recently modified the open and obvious rule and revised the duty of the owner or controller of a premises to a

n invitee or licen

see who is injured

on the premises.

In Coln v. City of Savannah , for publication, March 30, 1988, Tenn. 1998, 966 S.W.2d 34, the Supreme Cou

rt said: After reviewing the two cases before us, the extensive literature, our Tennesseecases on the subject, and cases from other ju risd ictions, we conclude that an open and obvious danger does not automatic

ally result in a fin

ding of no duty and therefore no landowner liability. As in anyneg ligence action, we think a risk is unreasonable and gives rise to a duty to act with due car

e if the foreseeabl

e probability

and gravity of harm posedby 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 defend ant’ s conduct, even if “open and obvious,” outweigh the burden upon the defendant to engage in alter

native conduct,

the defendant

has a duty to act with reasonable

care and the

comparative fault principles apply under McIntyre v. Balentine, supra
. - - - - In each of these premises liability cases, the plaintiff co ntends that the open and obvious rule does not preclud e finding a duty owned by the defendant landowner

and that an open and obvious danger is merely a factor for consideration in determinin

g comparative fault under M cIntyre v. Balentine
. The landowner defe

ndants in both cases maint ain that the rule is intact; tha t there is no duty of care when an open and obvious condition results in injury to the plainti

ff. The City of Savannah in Coln also co ntends th at the plaintiff was at least 50 percent negligent, barring recovery under comparative fa

ult.

- - - - We granted and

consolidated thes

e 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-6- of care or whethe

r itmerely is considered in assessing the comparative fa

ult of the parties. A negligence clai

m requires proof

of the followin g ele ments: (1) a duty of car e owed by the def

endant to th

e plaintiff; (2) conduct by the defendant falling below the standardof

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). In McCall v. Wilder, supra , we explained tha t “a risk is unreasonable and gives rise to a duty to act with due careif 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 o f the harm or injury occurring; the po

ssible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by defendant; the usefulness of the conduc t to defendant; the feasibility of alternative, safer conduct and the r e lative costs and burdens associat ed with that conduct; the relative us efulness

of the safer conduct; and th e relative safety

of alternative c

onduct. 913 S.W.2d at 153. The determination of whether a duty is owed requires a balancing of the foreseeability and g ravi ty of the potential harm against the burden impo s ed in preventing th at harm. McClung v. Delta Square L t. Partn ers hip , 937 S.W.2d 891, 901 (Tenn. 1996). Ass

uming a duty of car

e is owed, be it a duty to refrain from creating a danger or a duty to warn against an existing dang er, it must then be determined whether a defendant has conformed to the applicable standard of care, w hich is generally reasonable care under the circumstances.

“Ordinary , o r reasonable, care is to be estimated by the risk entailed thr ough probable dangers attending to the particular situa tion and is to be comm

ensurate withthe risk

of injury.” Doe v. Linder Constr. Co., Inc ., 845 S.W.2d 173, 178 (Tenn. 1992). If the plaintiff meets the burden of establishing the defendant’s duty in a particu la r case, as well as the other elementsof

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 h oldi ng that a plaintiff’s contributory negligence no longer would bar recovery against a tortfeasor and adopting a systemof comparative negligence in which the plaintiff’s negligence is compared to the fault of the defendant or

defendants. A plaintiff whose negligence is less than that of a tortf easor may now recover damages-7- r ed ucedby a percentage of the plaintiff’s own negligence. 833 S.W.2d at 54.

- - - - In premises li ab ility cases, applic ation of duty p rinciples resulted in imposing a duty on an own er o r possessor of pr emises to exercise reasonable care under the circumstances to a guest (licens ee) or business invitee. The duty includes the responsibi l ity of either removing or warning against any latent or

h idden dangerous condition on the premises of which one was aware or should have been aware through the exercise of reasonable d iligence. Eaton v. McLain , 891 S.W.2d 587, 594 (Tenn. 199 4); Smith v. Inman Realty Co ., 846 S.W.2d 819, 823 (Tenn. App. 1992).

- - - - (1) A possessor of lan

d is not li ab le to his invitees for physi cal harm caused to them by any activity or conditi

o n on the land whose dan ger is known or obvious to them, un les s the possessor should ant icipate the harm despite such knowl

edge or obviousne

ss . - - - - Such reason to expect harm to the visitor from known or obvious danger s m ay ar ise, for example, where the posses s or has reason to expect that the i nv itee’s attention may be distracted, so that he will notdiscover what is obvious, or will forget what he has discovered, or

fail to protect

himself against it. Such reason may also ar ise where the possessor has reason to expect that

the invitee w ill proceed to encounter the known o r obvious danger because

to a reasonable

ma n in his position the advantage s of doing so would outweigh the apparent risk.

- - - - Moreover, the open and obvious rule is inconsistent with our cases which analyze duty by balancing fores ee ability and gravi ty of harm with feasibility and availability of alternative s that would have av

oided the harm.

- - - - We reject the defendants’ contentions that restriction of the open and obviou

s danger rule

w ill preclude the trial court from applying mechanisms such as summary judgment an d dir ected verdict to evaluate cases. By retaining the separate analysis of

duty, and not totally

subsuming all cases by applying comparative fault, themechanisms of summary judgmentand directed

verdict remain v

iable to evaluate cases at preliminary stages in the proceedings. The evidence pr

esented by defe

ndants in support of

their motion is not suf

ficiently conclusive to entitle them to dismissal as a matter of law. Any doubt as to the existence of a genuine issue of fact must be resolved against the moving party. Barber v. Ralston Purina-8-

Co ., Tenn. App. 1991, 826 S.W.2d 96. Generally, what constitutes negligence on the parking lot is a question for the jury. Mumford v. Thomas , Tenn. App. 1980, 603 S.W.2d 154.
Complaint is made of the exclusion of the affidavit of a witness with 15 years experience in the installation, maintenance and repair of asphalt surfaces. It is not necessary for an “expert” who expresses an opinion to have any particular qualification except knowledge of the subject matter which is not possessed by an ordinary person which information would a

ssist the trier of f

act in reaching a

n accurate and

just conclusion. TRE Rule 702.
Mr. Vance’s affidavit makes a prima facie showing that he is qualified to render an opinion concerning the deterioration of asphalt based on his knowledge, experience, and training gained from working with asphalt for fifteen years. Thus, the trial court erred, to the extent that it excluded Mr. Vance’s affidavit based on his lack for more formal education or qualifications.
We also find that the trial court erred by striking Mr. Vance’s affidavit on the ground that it lacked trustworthiness because Mr. Vance’s opinion was based on Ms. Bond’s description of the

pothole or becau

se Mr. Vance did n

ot explain how he a

rrived at his conclusion that a pothole of the size described by Ms. Bond “would have taken numerous months to develop.”

These are cer

tainly appropria

te consideration

s when the trial co

urt is performing its “gate keeper” function at trial, but the same standards do not apply at the summary judgment stage.
The courts customarily treat the papers of a party opposing a motion for summary judgment more indulgently than the papers of the party seeking the summary judgment. The evidence suppor

ting and opposing a s

ummary judgment wil

l be considered in

the light most favorable to the opposing party, see Speaker v. Cates Co. , 879 S.W.2d 811, 813 (Tenn. 1994), and the nonmoving party is also entitled to all favorable inferences that can be-9-

reasonably drawn from the proof. See Byrd v. Hall , 847 S.W.2d 208, 210-11 (Tenn. 1993). The court’s indulgence may extend to technically defective papers that inform the court of important relevant evidence that the nonmoving party can and will introduce at trial. See 6 James A. Moore, e

t al., Moore’s Federal Practice § 56.22[1] (2d ed. 1995); 10A Charles A. Wright, et al., Federal Practice and Procedure

§ 2738, at 485 (2d ed. 1983).

Mr. Vance’s affidavit should not have been stricken because it did not contain a description of how Mr. Vance arrived at his opinion. Tenn. R. Civ. P. 56.06 provides that the adequacy of expert affidavits should be measured by the requirements of the rules of evidence. Tenn. R. Evid. 705 permits experts to give an opinion without prior disclosure of the underlying facts or data. Thus, Mr. Vance’s affidavit was competent. It does not necessarily follow, however, that Mr. Vance will be able to give an expert opinion at trial. Like any other expert witness, Mr. Vance may be subjected to cross-examination concerning the basis of his opinion, and the trial court, acting as gate keeper, may exclude Mr. Vance’s opinion if it determines that the opinion will not substantially assist the trier of fact or that the facts, data, or m

ethodology on whic

h the opinion is base

d indicates a lac

k of trustworthine

ss.
The summary judgment in favor of defendants is reversed and vacated. Costs of the appeal are taxed against the defendants-appellees. The cause is remande d to the Trial Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

_________________________________ HENRY F. TODD P RESIDING JUDGE , MIDDLE SECTIO N-10-

CONCUR:

____________________________ WILLIAM C. KOCH, JR., JUDGE

____________________________ WILLIAM B. CAIN, JUDGE

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
LUCY L. BOND, ) ) Davidson Circuit Plaintiff/Appellant, ) No. 96C-4542 ) VS. ) ) BELLE MEADE FUND PAR TNERS, ) Appeal No. L.P.; BRANCH PROPERTY, L.P., ) 01A01-9802-CV-00059 BRANCH PROPERTY LTD. ) PARTNERSHIP, ) ) Defendants/Appelle

es. )

JUDGMENT In accordance with the opinion of the Court filed herein, the judgment of the Trial Court is reversed. Costs of this appeal are adjudged against the defendants-appellees. The cause is remanded to the Trial Court for necessary further proceedings consistent with the opinion of this Court.

__________________________________ HENRY F. TODD, PRESIDING JUDGE, M .S.

____________________________________ WILLIAM C. KOCH, JR., JUDGE

____________________________________ WILLIAM B. CAIN, JUDGE