# FILED April 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE WESTERN SECTION AT JACKSON

BARRY SAWYER, ) ) Plaintiff/Appella

nt, ) Dyer Circuit No. 96-4

) vs. ) ) FIRST TENNESSEE BANK, ) Appeal No. 02A01-9704-CV-00079 DYERSBURG, TENNESSEE and ) SECURITY BANK, ) ) Defendants/App

ellees. )

APPEAL FROM THE CIRCUIT COURT OF DYER COUNTY

AT DYERSBURG, TENNESSEE

THE HONORABLE JOE G. RILEY, JUDGE For the Plaintiff/Appellant : For the Defendants/Appellees : Charles M. Agee, Jr. W. Stanworth Harri s Dyersburg, Tennessee Jackson, Tennessee

REVERSED AND REMAN DED

HOLL Y KIR BY LI LLA RD, J.

CONCUR:
ALAN E. HI GHERS, J.
DAVI D R. FAR

MER, J.OPINION

This is a premises liability case. The plaintiff was injured when he encountered a drop-off betweenthe parking lot

of two banks. The defendant banks filed a motion for s ummary judgment, arguing that the drop-off

was open and obvio

us. The trial court granted the summary judgment motion, from which the plaintiff appeals. We reverse. On Ap ril 3, 1995, the plaintiff, Barry Sawyer (“Sawyer”), exited a cab and entered an Automated Teller Machine (ATM ) locate d in the parking lot o f First Tennessee

Bank (“First Tennessee”) in Dyersburg, Tennessee. This parking lot adjoins another parking lot owned by codefendant,

Security Bank. A cu rb and atwo foot drop-off separate the two lots. After retrieving money from the ATM, Sawyer began walking across the First Tennessee par king l ot toward the adjoining Security

Bank parking lot. Sa

wyer put his money a

nd his ATM card into

his billfold as he walked. As he placed his billfold in his hip pocket, he reached the curb that

separates the Fir

st Tennessee Bank lot from the Security Bank lot. Sawyer looked up just as he stepped over the curb, and was expec ting the ground on the Security Bank lot to be level with the ground where he was standing. Instead of level ground on the other side of the curb, there wa s a two foot drop-off. Sawyer fell and broke his leg in the fall. Sawyer filed a premises liability act ion agains t First Tennessee and Security Bank (collectively, the “Banks”), alleging that the Banks were negligent in constructing the

parking lots in such a manner as to create the illusion that the lots were level, when instead there was a two foot drop-off below the curb se

parating the prop

erties. Sawyer a

lso alleged that the defendants were negligent in failing to post signs warning of the drop-off. T he Banks filed a motion for summary judgment, arguing that the two-foot drop-off betwee n the parking lots was open and obvious to Sa wyer and that the Banks therefore had no liability for Sawyer’s inju rie s. After reviewing the parties’ briefs and photographs of the curb and drop-off betweenthe Banks’ parking lots, the trial court granted the Banks’ motion for summary j udgment. From this order the

plaintiff now appe

als. On appeal, Sawyer argues that the trial court erred in granting the B an ks’ motion for summary judgment. Sawyer p oints to the photogra

phs i n the record of the curb and drop-off betweenthe parking lots, and argues that the photographs demonstrate that there is a genuine issue of material fact as to whether the lots were constructed in a manner that creates the illusion that the two lots are on the same level, when the curb is approached from the direction from which Sawyer2

came. The defendants Banks argue that the drop-o ff is open and obvious, and that the trial court correctly gran

ted the Banks’ motio

n for summary judgm

ent. A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of materia l fact and that the

moving party is

entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The party mov ing for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd v. Hall, 847 S.W.2d 208 , 211 (Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favo r of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. at 210-11. Summary jud gment is only appropriate

when the facts a

nd the legal conc

lusions drawn fro

m the facts reaso

nably permit only

one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Si nce only questions of law

are involved, there is

no presumption of c

orrectness reg

arding a tria

l court' s grant of summary judgment. Id. Therefore, our review of the trial court’s grant of summary judgmen

t is de novo on the record before this Court. Id. In order to establish negligence, the plaintiff must demo

nstrate: “(1) a d

uty of care owed by the defendant to the p

laintiff; (2) conduct falling below the applicable standard of care amounting to a breach of tha

t duty; (3) an injury

or loss; (4) causa

tion in fact; and (5 ) proxima te or le gal cause.” Tracy v. Exxon Corp. , No. 02A01-9512-CV-00277, 1996 WL 741876, at *1 (Tenn. App. Dec. 31, 1996) (citing McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995); Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Te nn. 1993); McClenahan v. Cooley , 806 S.W.2d 767, 774 (Tenn. 1991); Lindsey v. Miami Development Corp. , 689 S.W.2d 856, 858 (Tenn. 1985)). Whether the defendant oweda duty to the plaintiff is a question of law for thetrial court to determine. Id. (citing Bradshaw v. Daniel , 854 S.W.2d at 869). “Liability in premises liability cases stems from superior knowledge of the condition of the premises.” Ogle v. Winn -Dixie Greeneville, Inc. , 919 S.W.2d 45, 46 (Tenn. App. 1995) (citing McCormick v. Waters , 594 S.W.2d 385, 387 (Tenn. 1980)). Tennessee law places a duty on land

owners to warn guests and patron s of “lat ent or hidden dangers.” Eaton v. McLain , 891 S.W.2d 587, 595 (Tenn. 1994).

The justification f

or this rule is the pr

emise that landown

ers a re u sually familia r with hidde n dangers that a visitor to the premises may not anticipate. Kendall Oil Co. v. Payne , 41 Tenn. App. 201, 293 S.W.2d40, 42 (Tenn. App. 1955). “[T]his duty does not arise if the3

danger is open and obvious.” Eaton , at 595 (citing Jackson v. Tennesse e Valley Authority , 413 F. Supp. 1050, 1056 (M.D. Te nn. 1976); Odum v. Haynes , 494 S.W.2d 795, 800 (Tenn. App. 1972)). The “open and obv

ious” rule can be

described as fol

lows: The liability of the proprietor of a place of business to which the publ ic is invited is based upon the duty to keep his premises in a reasonably safe condition for all persons who are l

awfully on his pre

mises and in the exe

rcise of due car

e for their own safety. Liability is sustained on the groundof the owner's superior knowledge of a perilous conditi

on on his premises and he is not liable for injuries sustained from dangers that are obvious, reasonably apparent or aswell known to the invitee as to the owner. The invite

e assumes all

normal or obvious r

isks attendant on th

e use of the premises.
Kendall Oil Co. v. Payne , 41 Tenn. App. 201, 29 3 S.W.2d 40, 42 (Ten n. App. 1955). This r

ule originated prior

to Tennessee’s a

doption of compara

tive fault. Since the adoption of c o mparative fault in McIntyre v. Balentin e , 833 S.W.2d 52 (Tenn. 1992), Tennessee courts have attempted to reconcile the open and obvious rule with the doctrine of comparative fault. In Eaton v. McLain , 891 S.W.2d 587, 595 (Tenn. 1994), the

Tennessee Supre

me Courtstated: “[a]lthough Tennessee law provides that premisesowners owe invitees a duty to warn of latent or hidden da

ngers, this duty doe

s not arise if th

e danger is ope n and obvious.” Some intermediate

appellate decisions have stated that the adoption of comparative fa

ult does not impact the open and obvious rule. See Tracy v. Exxon Corp. , No. 02A01-9512-CV-00277, 1996 WL 741876 (Tenn. App. Dec . 31, 1996); Valentine v. Weather ford , No. 02A01-9511-CV-00264, 1996 WL 741878 (Tenn. App . Dec. 31, 1996); Jones v. Exxon Corp. , No. 02A01-9507-CV-00159, 1996 WL 482674 (Tenn. App . Aug. 27, 1996); Shope v. Radio Shack , No. 03A01-9508-CV-00288, 1995 WL 733885 (Tenn. App. Dec. 7, 1995). Other intermediate appellate dec isions ha ve held the open and obvious rule does not bar recovery; rather the trier of fact compares the de fendant’s negligence to the plaintiff’s negligence in failing to exercise reasonable care regarding a danger that is “obvious, reasona bly apparent, or as well known to the injure

d party as to

the owner. . . .” Coln v. City of Savannah , No. 02A01-9507- CV-00152, 1996 WL 544652 at *3 (Tenn. App. Sept. 25, 1996), reversed , No. 02501-9702-CV00008 (slip. op.) (Tenn. March 30, 1998); see also Broyles v. City of Kno xville , No. 03A01-9505- CV-00166, 1995 WL 511904 (Tenn. App. Aug. 30, 1995); Haz elwood v. Certainteed Corp. , No. 02A01-9405-CV-00106, 1995 WL 676042 (Tenn. App. Nov. 1 4, 1995); Cooperwood v. Kroger Food Stores , No. 02A01-9308-CV-00182, 1994 WL 725217 (Tenn. App. Dec. 30, 1994).4

The Tennessee Supreme Court has recently determined the status of the open and obvious ruleafter McIntyre v. Ballenti ne , 833 S.W.2d 52 (Tenn. 1992). See Coln v. City of Savannah , No. 02-S-01-9702-CV-00008 (slip op.) (Tenn. Mar. 30, 1998). However, the Court’s decision in Coln does not affect our conclusion in this case. Sawyer testified in his deposition that this was the first time he hadwalked in that direction from one bank parking lot to the other. He testified that from the direction he was walking the lot

on the other side of the curb “just looked level to me . . . .” The photographs in the record show two parking lots separated by a curb and a drop-off of approximately two feet. From the lower level lot, the rise of approximately two feet at the curb is, of course, obvious. From the direction in which the plaintiff was walking, however, the diffe ren ce in elevation cannot be deemed obvious. The color of the pavement in the

lower lot was dar

ker than the pave

ment i n t he higher lot, obscuring the different levels. From the plaintiff’s testimony and the photographs, and taking the strongest legitimate view of the evidence in favor of the non-moving party, there appears t o be a disputed issue

of fact as to whether the parking lots were constructed in such a manner as to create the illusion that the two lots

were at the same leve l, and whether the difference in elevation would have been noticed by a reasonable

person in the plaintiff’s po sition. Consequently, we conclude that the trial court erred in granting the def

endant Banks’ motio

n for summary judgm

ent. The decision of

the trial court is r

eversed and the

cause is remanded for further proceedings consistent with this Opinion. Costs are assessed against the Appellees, for w hich execution may issue if necessary. HOLLY KIRBY LILLARD, J. CONCUR: ALAN E. HIGHERS, J. DAVID R. FARMER, J.