FILED

May 19, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

REGINA M. OATES and ) C/A NO. 03A01-9712-CV-00545

husband, JAMES OATES, )

) SEVIER CIRCUIT

Plaintiffs-Appellants, ) 

) HON. RICHARD R. VANCE,

v. ) JUDGE

)

GLENSTONE LODGE, INC., d/b/a )

DAYS INN-GLENSTONE LODGE, )

) VACATED AND

Defendant-Appellee. ) REMANDED

JOHN K. HARBER, PRYOR, FLYNN, PRIEST & HARBER, Knoxville, for

Plaintiffs-Appellants.

R. KIM BURNETTE, ARNETT, DRAPER & HAGOOD, Knoxville, for DefendantAppellee.

O P I N I O N

Franks, J.

In this action, the plaintiff brought suit for damages for personal injuries

sustained when she fell on defendant’s premises. The Trial Court, responding to a

Motion for Summary Judgment, dismissed the action on the basis that the situs of

plaintiff’s fall was an open and obvious condition, with no duty on the part of the
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proprietor to warn invitees.

On De cember 12, 1993, pla intiff was a guest of the Glenstone Lodge , in

Gatlinburg. Outside the front entrance to the hotel was a drive-through area for

loading and unloading passengers and luggage. Def endant had constructed a short

concrete ramp in this area so that guests could roll luggage from the street level to the

sidewalk. The ramp, as well as the sidewalk was covered with all-weather carpeting.

Plaintiff and some friends were exiting the hotel to a convention site

down the street from the front entrance. She was talking to one of her friends who

was wa lking beside her, and ac cording to plaintiff, this conversation momentarily

distracted her, and as she stepped off the curb and into the drive-through area, her left

foot landed on the ramp, and she fell, causing personal injuries.

On evaluating a motion for summary judgment, the Trial Court should

consider “(1) whether a factual dispute exists; (2) whether the disputed fact is material

to the outcome of the case; and (3) whether the disputed fact creates a genuine issue

for a trial.” Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). If there is no genuine

issue as to any material fact, the movant is entitled to judgment as a matter of law. Id.

at 215. No presumption of correctness attaches to decisions granting summary

judgment because they involve only questions of law. Hembree v. State, 925 S.W.2d

513 (Tenn. 1996); Tenn.R.App.P. 13(d). 

On appeal, we are required to review the evidence in the light most

favorable to the opponent of the motion and all legitimate conclusions of fact must be

drawn in favor of the opponent. Gray v. Amos, 869 S.W.2d 925 (Tenn.App. 1993). 

After the trial court granted summary judgment in this case, the

Tennessee Supreme Court released its opinion in Coln v. City of Savannah, 1998 WL

139096 (Tenn.). In Coln, the court held that the “open and obvious” rule is not
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necessarily a complete bar to recovery in premises liability actions. Under Coln, the

open or obvious na ture of a danger “does not, ipso facto, relieve a defendant of a duty

of care.” Id. at *9. Rather, “the duty issue must be analyzed with regard to

foreseeability and gravity of harm, and the feasibility and availability of alternative

conduct that would have prevented the harm.” Id.

The existence of a duty is a question of law. Blair v. Campbell, 924

S.W.2d 75 (Tenn. 1996). Only after a duty has been established does comparative

fault be come part of the analysis. Coln, 1998 WL 139096 at *7. Thus, it is first

necessary to determine if the defendant owed any duty to plaintiff. If defendant owed

no duty, then summary judgment may be appropriate. Id., at *9.

There is material evidence establishing a duty on defendant in this case. 

Generally, premises owners owe invitees a duty of reasonable care under all of the

circumstances. Eaton v. M cLain, 891 S.W.2d 587, 593 (Tenn.1994). Business owners

genera lly have a duty to maintain the ir premises in a reasonably safe condition. Id. As

part of this duty, the owners must either remove or warn against any dangerous

condition on the premises of which they are aware or should have been aware though

the exercise of reasonable diligence. Id. 593-94. Generally, “[a] risk is unreasonable

and gives rise to a duty to act with due c are 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.” McCall v. Wilder, 913

S.W.2d 150, 153 (Tenn. 1995).

In Coln, the Supreme Court endorsed the principles contained in the

Restatement (Second) of Torts § 343(A). This section states:

(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
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should anticipate the harm despite such knowledge or

obviousness.

Thus, a premises owner may owe a duty to invitees if the owner can

anticipate ha rm, even if a hazard is open and obvious. “Such reason to expec t 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 wha t is obvious, or will forget what he has discovered, or fail to

protect himself against it.” Restatement (Second) of Torts, § 343(A) (comment f). 

These principles relate to the foreseeability question and are more meaningful than

simply labeling a condition as open and obvious. Coln, 1998 WL 139096 at *7.

Although the evidence suggests that the ramp was an open and obvious

condition, summary judgment was inappropriate in this case. The defendant offered

the affidavits of an employee, Pamela Joyce, and John Hungerford, a safety engineer. 

These affidavits state that the area was well-lighted and that there were no defects in

the carpeting. Although these factors may favor the defendant in apportioning

negligenc e, they do not warrant a finding of no duty. The def endant’s agents

obviously knew about the presence of the ramp, and the ramp was in front of the main

entrance to the hotel, where defendant invited and expected pedestrian traffic. Motor

vehicles drove through this area as well. Since the ramp was in a main area used for

loading and unloading, it is foreseeable that persons entering and leaving the hotel

could be distracted, either by vehicular or other pedestrian traffic. Moreover,

defendant could have placed a warning sign, railing or other device by the ramp at

little cost. Accordingly, we conclude tha t the Trial Court erred in granting summary

judgment and we remand for further proceedings consistent with this opinion.

The costs of the appeal are assess ed to defendant.
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__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

.

___________________________

Charles D. Susano, Jr., J.