# 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, J

AMES OATES, ) ) SEVIER CIRCU IT Plaintiffs-Appellants, ) ) HON. RICHARD R. VANCE, v. ) JUDGE ) GLEN STON E LOD GE, IN C., d/b/a ) DAYS INN-GLENSTONE LODGE, ) ) VACATED AND Defendant-Appellee. ) REMANDED

JOHN K. HAR BER, PRYOR, FLY NN, PRIEST & HA RBER, Knoxville, for Plaintiffs-Appellants. R. KIM BUR NETT E, ARN ETT, D RAPE R & H AGO OD, K noxville, fo r Defen dantAppellee.

O P I N I O N
Franks, J.
In this act

ion, the plai

ntiff brought sui

t for damages for pers onal injuries sustained when she fel

l on defendant’s pr

emises. The Trial

Court, responding t

o a Motion for Summary Judgment, dismissed the act ion on the basis t

hat the sit

us of plaintiff’ s fall was an open and obvious condition, wit

h no duty on the par

t of the2

proprietor to warn invitees.

On De cember 1 2, 1993, pla intiff was a guest of the Glenston e Lodge , in Gatlinburg. Outsi

de the front entr

ance to the hotel

was a drive-through ar ea for loading and unloa ding passengers an d luggage. Def endant had con structed a short concrete ramp in t

his area so that

guests could rol

l luggage from the st

reet level t

o the sidewalk. The ramp, as well as the sidewalk was covered with all-weather carpeti ng. Plaintiff and some frien ds were e xiting the ho tel to a conv ention site down the street fr

om the front entrance. She was talking t o one of her friends who
was wa lking beside her, and ac cording to p laintiff, this con versation m omentarily distract ed her, and as she st

epped off the curb and int o the drive-t

hrough area, her l

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

On eva luating a m otion for su mmary judg ment, the T rial Court sh ould consider “(1) whethe

r a factual

dispute exists; (2) whether the disputed fact is material to the outcome of the case; and (3) whether t he disputed fact c

reates a genuine issue for a trial .” Byrd v. H all , 847 S.W.2d 208, 214 (Tenn. 1993) . If there i s no genuine issue asto an

y mat eri al f act , the mova

nt i s ent itl ed to judgment

as a matt

er of law. Id. at 215. No presum ption of correctness attaches to decisions granting sum mary judgm ent bec ause th ey involv e only qu estions o f law. Hemb ree v. State , 925 S.W.2d 513 (T enn. 19 96); Te nn.R.A pp.P. 1 3(d).

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

opponent of the motion and al l legiti mate conclusions of fa

ct must be drawn in favo r of the o ppone nt. Gray v. Amos , 869 S .W.2d 925 (T enn.A pp. 199 3).

After the trial court grant ed summary judgment in t his case, t

he Tennessee Supreme Court released its opini on in Coln v. City of Savannah , 19 98 WL 139096 (Tenn.). In Coln , the court hel d that the “open and obvious” rule is not3

necessarily a complete bar to recov ery in premises liability actions. Under Coln , the open or o bvious na ture of a da nger “do es not, ipso f acto, relieve a defenda nt of a duty of care.” Id. at *9. Rath er, “the duty issue must be an alyzed with re gard to foreseeabili

ty and gravi

ty of harm, and t

he feasibili

ty and availability

of alternati

ve conduct that would have pr evented the harm.” Id. The ex istence o f a duty is a questio n of law
. Blair v. Ca mpbell , 924 S.W.2d 75 (Tenn. 1996). Only after a duty

has been establi shed does comparative fault be come part of t he ana lysis. Coln , 1998 WL 139096 at *7. Thu s, it is first necessary t

o determine if t

he defendant owed any duty to plainti

ff. If defendant owed no duty, t

hen summary judgment may be appropriate.Id., at *9. There is mater ial evide nce esta blishing a duty on defen dant in th is case. Generally,premises owners owe invit ees a duty of r

easonable care under

all of the circum stances . Eaton v. M cLain , 891 S.W.2d 58 7, 593 (Tenn.199 4). Business own ers genera lly have a d uty to mai ntain the ir prem ises in a r easona bly safe c onditio n. Id. As part of this dut

y, the owners must

either remove or warn aga inst any dange

rous condition on the pr

emises of which they

are aware or should have bee n aware though the exe rcise of reason able dilig ence. Id. 593-94. G enerally, “[a] risk is u nreasona ble and gives rise to a duty to ac t with due c are if the for eseeable p robability and g ravity of harm posed by defendant ’s conduct outweigh t he burden upon defendant to engage in altern ative co nduct th at wou ld have preven ted the h arm.” McCall v. Wilder, 913 S.W.2d 150, 15 3 (Tenn. 1995).

In Coln , the Supreme Court endorsed the principl es contained in t

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

(1) A possessor of la

nd is not lia

ble to his i

nvitees for physical harm caused to them by any activi

ty or condit

ion on the land whose danger is known or obvious to t hem, unless the possessor4 should antici

pate the harm despi

te such knowledge or obviousness. Thus, a premises owner may owe a duty to invi

tees if the owner ca

n anticipate ha rm, even if a hazard is o pen and o bvious. “S uch reaso n to expec t harm to the visit or from known or obvious dangers may arise, for

example, where the possessor has reason to expect that the invitee ’s attent

ion may be dist

racted, so t

hat he will not disco ver wha t is obvious, o r will forget w hat he has d iscovered, o r fail to protect h imself a gainst it.” Restate ment (S econd ) of To rts, § 343 (A) (co mmen t f). These principles

relate to t

he foreseeabili

ty questi on and are more meaningful tha n simply lab eling a c onditio n as op en and obviou s. Coln, 1998 WL 139096 at *7.

Although the evidence sugge sts that t he ramp was an open and obvious condition, summary judgment was inappropr iate in this case. The defendant off ered the aff idavits o f an em ployee, P amela J oyce, and John H ungerf ord, a sa fety engin eer. These af fidavits state th at the area w as well-lighte d and that th ere were n o defects in the carpeting.Although these factor s may favor the defe

ndant in apportioning negligenc e, they do not w arrant a find ing of no duty. The def endant’s ag ents obviously kn ew abo ut the presen ce of the ra mp, and th e ramp w as in front o f the main entrance to the

hotel, where defendant invited and expect

ed pedestrian t

raffic. Motor vehicles drove t

hrough this area as well. Since t he ramp was in a main area used for loading and unloadi

ng, it is f oreseeable that

persons enteri

ng and leaving the hot

el could be distracted, either by vehicular or o ther pedestrian traffic. More over, defendant could have pla ced a warning sign, r

ailing or ot

her device by t

he ramp at little cost. Accordingly, we conclude tha t the Trial Court erred in granting s ummary judgment and we remand for further proceedings consistent with thi s opinion. The costs of the app eal are assess ed to defe ndant.5 __________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

.

___________________________ Charles D. Susano, Jr., J.