F IL ED

O c t ober 14, 1998

C eci l W . C r o w son

A ppel l a t e C our t

C l e r k

LUCY L. BOND, )

 ) Davidson Circuit

Plaintiff/Appellant, ) No. 96C-4542

 )

VS. )

 )

BELLE MEADE FUND PARTNERS, ) Appeal No.

L.P.; BRANCH PROPERTY, L.P., ) 01A01-9802-CV-00059

BRANCH PROPERTY LTD. )

PARTNERSHIP, )

 )

Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

HONORABLE THOMAS W. BROTHERS, 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 North

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
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LUCY L. BOND, )

 ) Davidson Circuit

Plaintiff/Appellant, ) No. 96C-4542

 )

VS. )

 )

BELLE MEADE FUND PARTNERS, ) Appeal No.

L.P.; BRANCH PROPERTY, L.P., ) 01A01-9802-CV-00059

BRANCH PROPERTY LTD. )

PARTNERSHIP, )

 )

Defendants/Appellees. )

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 fact has been

raised by the plaintiff/appellant, so as to warrant this cause to

be tried on its merits.

The appellees-defendants presented the following issues:

1. Whether the trial court properly granted summary

judgment to the defendants based on the plaintiff’s failure,

after adequate time for discovery, to establish the existence of

any evidence that the defendants created or had actual or

constructive notice of an alleged defective condition on the

premises that caused Ms. Bond’s fall.

2. Whether the trial court abused its 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 December 19, 1995, LUCY L.

BOND, traveled to the Kroger Co. Grocery store located at

4500 Harding Road,Nashville, 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 complicated medical

problems.

That the hole in the parking lot was a hazardous,

dangerous condition unknown to the Plaintiff and is indicative
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of failure on the part of the Defendants to properly maintain

the premises for patrons of the store.

That the Defendants knew or should have known of

the dangerous and hazardous conditions of the parking lot, but

failed to properly maintain and repair such.

The motion for summary judgment states:

The undisputed facts establish that the defendants

neither 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 defendants exercised

reasonable care in maintaining the 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 when 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 deep it was?

A. Two or three inches.

- - - -

Q. My question is: Do you remember looking at

the hole right after you fell?

A. No.

2. The affidavit of defendants’ manager that, every 3 or 4 weeks, she inspected the

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

3. An “on site maintenance person” was instructed to inspect the parking lot daily

for defects and to repair defects found.
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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 that the 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 “concrete 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 about 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 duty to report same is not conclusive evidence that there were no potholes.

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 must be resolved by a trial rather than by summary judgment. Barber v. Ralston

Purina Co., Tenn. App. 1991, 825 S.W.2d 96.
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What constitutes reasonable care on the part of a parking lot in providing for the safety

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 fall” 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 and obvious 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 an invitee or licensee 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 Court said: 

After reviewing the two cases before us, the extensive

literature, our Tennessee cases on the subject, and cases from

other jurisdictions, 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 risk is unreasonable and gives rise to a duty

to act with due care if the foreseeable probability and gravity

of harm posed by 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 defendant’s conduct, even if

“open and obvious,” outweigh the burden upon the defendant

to engage in alternative 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

contends that the open and obvious rule does not preclude

finding a duty owned by the defendant landowner and 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.

- - - -

We granted and consolidated these 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
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of care or whether it merely is considered in assessing the

comparative fault of the parties.

A negligence claim requires proof of the following

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

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 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 of the harm or

injury occurring; the possible magnitude of

the potential harm or injury; the importance or

social value of the activity engaged in by

defendant; the usefulness of the conduct to

defendant; the feasibility of alternative, safer

conduct and the relative costs and burdens

associated with that conduct; the relative

usefulness of the safer conduct; and the

relative 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 gravity of the potential

harm against the burden imposed in preventing that harm.

McClung v. Delta Square Lt. Partnership, 937 S.W.2d 891,

901 (Tenn. 1996). Assuming a duty of care 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 defendant has conformed to the applicable standard

of care, which is generally reasonable care under the

circumstances. “Ordinary, or reasonable, care is to be

estimated by the risk entailed through probable dangers

attending to the particular situation and is to be commensurate

with the 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 particular case, as well as the other

elements of 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 holding that a plaintiff’s

contributory negligence no longer would bar recovery against

a tortfeasor and adopting a system of 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 tortfeasor may now recover damages
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reduced by a percentage of the plaintiff’s own negligence.

833 S.W.2d at 54.

- - - -

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).

- - - -

(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.

- - - -

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 reject the defendants’ contentions that restriction

of the open and obvious danger rule will preclude the trial

court from applying mechanisms such as summary judgment

and directed verdict to evaluate cases. By retaining the

separate analysis of duty, and not totally subsuming all cases

by applying comparative fault, the mechanisms of summary

judgment and directed verdict remain viable to evaluate cases

at preliminary stages in the proceedings. 

The evidence presented by defendants in support of their motion is not sufficiently

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
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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 asist the trier of fact in reaching an accurate and just conclusion. TRE

Rule 702.

It was error to exclude the affidavit for lack of qualification. Upon trial, his

testimony, if offered, should be heard.

The summary judgment in favor of defendants is reversed and vacated. Costs of the

appeal are taxed against the defendants-appellees. The cause is remanded to the Trial Court

for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

_________________________________

HENRY F. TODD

PRESIDINGJUDGE,MIDDLESECTION

CONCUR:

____________________________

WILLIAM C. KOCH, JR., JUDGE

____________________________

WILLIAM B. CAIN, JUDGE