# FILED
June 19, 1998 Cecil W. Crowson Appellate Cou rt Clerk KATHLEEN M. LYLE, ) ) Davidson Circuit Plaintiff/Appellant, ) No. 96C-4413 ) VS. ) ) Appeal No. MICHELSON ASSET MANAGEMENT, INC., ) 01A01-9710-CV-00549 and ) CREEKSTONE APARTMENTS ASSOCIATES,) L.P. ) and ) CREEKSTONE MANAGEMENT, L.L.C., ) ) Defendants/Appellee

s, )
IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT

AT NASHVILLE, TENNESSEE HONORABLE WALTE R C. KURTZ, JUDGE

Cleve Weathers, #2418 BRUCE , WEAT HERS , COR LEY, DU GHMAN & LYLE First American Center Suite 2075 315 Deaderick Street Nashville, Tennessee 37238-2075 ATTORNEY FOR PLAINTIF F/APPELLANT William B. Jakes, III, #10247 HOWELL & FISHER Court Square Building 300 James Robertson Parkway Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLEE



### VACATED AND REMAND ED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: WILLIA M C. KOCH, JR., JUDGE WILLIA M B. CAIN, JUDGE-2-

KATHLEEN M. LYLE, ) ) Davidson Circuit Plaintiff/Appellant, ) No. 96C-4413 ) VS. ) ) Appeal No. MICHELSON ASSET MANAGEMENT, INC., ) 01A01-9710-CV-00549 and ) CREEKSTONE APARTMENTS ASSOCIATES,) L.P. ) and ) CREEKSTONE MANAGEMENT, L.L.C., ) ) Defendants/Appellee

s, ) 

## O P I N I O N

The appellant, Kathle

en M. Ly le, has appeale

d from a summary judgment dismissing her suit against her landlord, the captioned defendants, for injuries received in a slip and fall on a common area of th

e leasehold prem

ises.
The judgment of t

he Trial Court stat

es: Based on the motion of the defendants, the deposition of the plaintiff and the affidavits filed by both parties a nd their witnesses and the

briefs a nd a rguments of counsel, the Courtfinds that

the defect or dangerous condition complained of by the plaintiff

was equally obvious to both parties and that the plaintiff is the re fore barred by her own neglig

ence. It is thereforeORDERED that the plaintiff ’ s complaint be dismissed at the costs of the plaintiff.
It has been held that the

controller of a p

remises is not liable for injur

y resulting

from a condition of the premises which is open and obvious. McCormick v. W aters , Tenn. 1980, 594 S.W.2d 385; Kendall Oil Co. v. Payne , Tenn. App. 293 S.W.2d 40 (1955).

However, on March

30, 1998, the Supreme Court announced its opinion in the case of Coln v. City of Savannah and Vancleave v. Markowski which states: We agree with the rationale of the majority of c ourts which have limited or re stricted the trad

iti ona l “open and obvious” rulein favor of the Restatement approach. We also agree that attempting to ana lyze the duty issue simply by labeling some conditions “open a nd ob vious,” without consideration of any surro undi ng circumstances, promotes-3- arbitrary and in co nsistent results. Moreover, the open and obvious rule is inconsistent with our cases which ana

lyze duty by balancing for

eseeabilit y an d gravity o

f harm with feasibility and availability

of alternativ

e s that would have avoided the harm.

- - - - Accordi ng ly, while we restrict the once broad application of the “open and obvious ” doctrine, we st

ress that duty remains a separate component of a plaintiff’s negligence action. As we said in Blair v. Camp bell , 9 24 S.W.2d 75 (Tenn. 1996), “our

adoption of the principles of comparative fault did notalter

the analysis applicable to the common law concept of d uty ... an d it is beyond d ispute that duty

is a question of

law for the trial c

ourt’s determina

tion.” Thus, only a ftera duty is esta

blished does compa

rative fault come int o pl ay.
- - - - We reject the defendants’ contentions that restriction of the open and obv ious danger rule will preclude the trial court from applying

mechanisms suchas summary judgment anddirec t ed verdict to evaluate cases. By retaining the separate analysis of duty, and

not totally subsumingall cases b y applying comparative fault, the mechanisms of s ummar y judgment and directed ve

rdict remain

viable to evaluate cases at preliminary

states in the proc

eedings.
The judgment of the T

rial Court, quoted a

bove, is based spe

cifically a nd solely upon the absolute defense of “open and obvious danger,” which was recognized at the time of the rendition of the judgment. However, the opinion of the Supreme Court, quoted above, requires that the judgment of the Trial Court be vacated

without prejudice to further pleadings, evidence, consideration and rulings of the Trial Court consist

ent with the latest ruling of the Supreme Court.-4- The judgment of the Trial Court is vacated, and the cause is remanded for further appropriate pro

ceedings. Costs o

f this appeal are

taxed against the

appellees.



### VACATED AND REMAND ED

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

______________________________ WILLIA M C. KOCH, JR., JUDGE

______________________________ WILLIA M B. CAIN, JUDGE