FILED

June 19, 1998

Cecil W. Crowson

Appellate Court 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/Appellees, )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT

AT NASHVILLE, TENNESSEE

HONORABLE WALTER C. KURTZ, JUDGE

Cleve Weathers, #2418

BRUCE, WEATHERS, CORLEY, DUGHMAN & LYLE

First American Center

Suite 2075

315 Deaderick Street

Nashville, Tennessee 37238-2075

ATTORNEY FOR PLAINTIFF/APPELLANT

William B. Jakes, III, #10247

HOWELL & FISHER

Court Square Building

300 James Robertson Parkway

Nashville, Tennessee 37201

ATTORNEY FOR DEFENDANT/APPELLEE

VACATED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

WILLIAM C. KOCH, JR., JUDGE

WILLIAM B. CAIN, JUDGE
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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/Appellees, )

O P I N I O N

The appellant, Kathleen M. Lyle, has appealed 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 the leasehold premises.

The judgment of the Trial Court states:

Based on the motion of the defendants, the deposition

of the plaintiff and the affidavits filed by both parties and

their witnesses and the briefs and arguments of counsel, the

Court finds that the defect or dangerous condition complained

of by the plaintiff was equally obvious to both parties and that

the plaintiff is therefore barred by her own negligence. It is

therefore ORDERED that the plaintiff’s complaint be

dismissed at the costs of the plaintiff.

It has been held that the controller of a premises is not liable for injury resulting from a

condition of the premises which is open and obvious. McCormick v. Waters, 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 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
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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.

- - - -

Accordingly, while we restrict the once broad

application of the “open and obvious” doctrine, we stress that

duty remains a separate component of a plaintiff’s negligence

action. As we said in Blair v. Campbell, 924 S.W.2d 75

(Tenn. 1996), “our adoption of the principles of comparative

fault did not alter the analysis applicable to the common law

concept of duty ... and it is beyond dispute that duty is a

question of law for the trial court’s determination.” Thus,

only after a duty is established does comparative fault come

into play.

- - - -

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 states in the proceedings.

The judgment of the Trial Court, quoted above, is based specifically and 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 consistent with the latest ruling of the Supreme

Court.
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The judgment of the Trial Court is vacated, and the cause is remanded for further

appropriate proceedings. Costs of this appeal are taxed against the appellees.

VACATED AND REMANDED

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

______________________________

WILLIAM C. KOCH, JR., JUDGE

______________________________

WILLIAM B. CAIN, JUDGE