# FILED
December 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHV ILLE

LINDA BRAGG, ) ) Plaintiff/Appellee, ) Davidson Law No. 92C-2533 ) vs. ) ) Appeal No. 01A01-9703-CV-00111 METROPOLITAN GOVERNM ENT OF ) NASHVILLE AND DAVIDSON ) COUNTY, ) ) Defendant/Appe

llant. )

APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE

For the Defendant/Appellant : For the Plaintiff/Appellee : James L. Murphy, III Nancy K. Corley William Michael Safley V. Michael Fox Nashville, Tennessee Kelley A. Sauls Nashville, Tennessee

AFFIRMED

HOLLY KIRBY LILL

ARD, J.
CONCUR: ALAN E. HIGHERS, J

. DAVID R. FARMER, J.OPINION

This is a slip and fall case unde r the Go vernmental Tort Liability Act. The heel of the plaintiff’s shoe c

aught in a hole as she descended the stairs of a government build

ing, resulting in injuries. The trial co urt found the defendant to be 100% negligent and awarded damages to the plaintiff. The defendant appeals, contending t ha t the hole in the steps was not a dangerous and defective condition or, in the alternative, that it was open and obvious. We affirm. In October 1991, Pla

intiff/Appellee L

inda Bragg (“Bra

gg”) left h

er office building in downtown Nashville around two o’clock in theafternoonand drove to the Howard Office School Building, (“Howard buildin g”) to purchase

car license tags. Bragg parked h er car in the vic

inity of the Howard

building and walked up the front sidewalk to its main entrance. In front of the building

are sever al steps leading up to three pairs o f doors. At this time,

there were only

two handrails, locatedover forty feet apart, along the length of the stairs. Bragg walked up the stairs and entered the building. Once in the building, she found that she needed to return to her car in order to get more money for the lic ense tags. Bragg walked down the stairs and returned to her car. She then reentered the building by walking up the same stairs. After purchasingthe license tags, Bragg exited the building and began to descend the stairs. Not including the top landing, six steps lead up to the building. As Bragg stepped off thefirst step, the heel of her shoe caught in a hole along the front edge of the first step. T

his caused her to f

all forward. Bra

gg sustained a variety o f injuries to her knee and back, w

ith significant med

ical expenses an

d lost wages. Br agg then filed this action in the Circuit Court of Davidson County a gainst th e Metropolitan Government of Na shville and Davids

on County

(“Metro”), pursuant to the Tennessee Governmental Tort Liability Act, Tennessee Code Annotated §§ 29-20-204 and 205. She sought damages for her

injuries, including

medical expense

s and lost wages. At the bench trial, it was undisputed that the hole measured two inches by two a

nd one-half inches (2" x 2.5") and was located in a seam where two large marble sections were joined together at the front of the step. The hole was directly in front of the middle set of doors. Sam McPherson, Metro’s Director

of General Services, testified at trial that this was a “high traffic area.” McPherson stated that Metro’s rec

ords i ndi cated that they had never received any complaint concerning the hole, nor had they received any complaint about anyone falling on the steps as a result of a

defect in the steps. McPherson also stated that a Metro employee, Charlie Rhode s, was an “on-site maintenance person” for the Howard building and had the authority to initiate repairs to the Howard2

building. At trial, Metro contended that Bragg was in a hurry and could have used the handrails on either side of the steps. Metro argued that the hole in the steps was not a “defecti ve, unsafe, or dangerous condition,” under Tennessee Code Annotated § 29-20-203, and would not give rise to a duty by Metro to repair it . Metro also

argued that the hole was “open and obvious,” and that Metro therefore had no duty to repair it or warn those entering or exiting the building. After the trial, t

he trial court fou

nd the following: 1) Metro was 100% negligent and the affirmative defense of comparative negligence does not apply; 2) The steps to the Howard building were defective and dangerous and the dangers were not open and obvious to Bragg; 3) Bragg proved that Metro had constructive notice of the defective and dangerous condition of the steps: the crack between the two segments of the concrete steps was unfilled, and the concrete had obviously deteri orated a nd disappeared over a long period of time; therefore, Metro should have had notice of the hole; The trial court entered an ord e r of judgment for Bragg in the amount of $130,000. Metro now appeals this decision. On appeal, Metro argues that the trial court erred in finding that the hole in the steps which caught Bragg’s heel constituted a dangerous and defective condition thereby imposing upon Metro

a duty to warn or repair. Metro also contends that the hole constituted an “open and obviou s condition,” which relieved Metro of the duty to repair or warn those entering or exiting the building. Our review of this ca

se is de novo upon the record w ith a presumption of correctness of the findings of fact by the trial court. Absent error of law, the trial court’s decision will be affirmed, unless the evidence preponderates against the factual findings. Tenn. R. A pp. P. 13(d). No presumption of

correctness attaches to the trial court’s conclusions of law. See Carvell v. Bott oms , 900 S.W.2d 23, 26 (Tenn. 1995). In Tennessee, a m

unicipali ty is liable for foreseeable injuries resulting from defects and obstructions that cause injuries to pedestrians using a street or sidewalk in the usual and customary

manner. See City of Knoxville v. Baker , 150 S.W.2d 224, 228 (Tenn. App. 1940). The obstruction

or defect must be dangerous and the danger mu st be one that a re

asonably prudent

person would have anticipated as a natural and pro bable r esult of allowing th e obstruction or de

fect to exist. Forresterv. City of

Nashville , 179 Tenn. 682, 169 S.W.2d 860, 861 (Te

nn.1943); Batts v. City of Nashville , 22 Tenn. App. 418, 123 S.W.2d 1099, 1102-1103 (1938). A risk is for eseeable if a3

reasonable

person could foresee

the probability of its occurrence. Doe v. Linder Construction Co., Inc. , 845 S.W.2d 173, 178 (Tenn. 1992). In this case, the hole which caught Bragg’s heel was an abrupt break-off from the edge of the step. “An abrupt break-off or drop in a depression is generally recognized as being more dangerous than one which tapers off gradually.” Batts v . City of Nashville , 123 S.W.2d 1099, 1102 (Tenn. App. 1938). To determine if a condition is dangerous or de

fective, the issu

e is whether a re

asonably prudent per son t raveling along a s

idewalk or highwa

y who unexpected

ly encountered th

e hole would suffer injuries. Ba tts at 1 104; City of Memphis v. McCrady , 124 S.W.2d 248, 249 (Tenn. 1938). The hole in this case was located at the top of the steps, where it is more likely

that serious injury could result from a fall. In addition, the trial judge specifically found that women visiting the Howard building frequently wore high heels, which could get stuck in a hole such as the one at issue in this case. From revi ewin g the record, the evidence presented does not preponderate against the trial court’s finding thatthe hole in the stairs constitu

ted a dangerous a

nd defective co

ndition that could have foreseeably resulted in an injury similar to that which Bragg received. Metro next contends that the trial court erred by not f inding that the hole in the steps constituted an “open and obvious” condition which would have relieved Metro o

f the duty to

repair

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

Tennessee Supre

me Courtstated: “although Tennessee law provides that premises owners owe invitees a duty to warn of latent or hidden dangers, this duty does not ari se if the dange r is open and obviou s.” 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, 19964

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 appe llate dec isions have held the open and obvious rule does not bar

recov ery; rather the trier of fact compares the defendant’s negligence to the plaintiff’s neglige nc e in failing to exercise reasonable care regarding a danger that is “obvious, reasona bly apparent, or as well known to the injured par ty as to the owner. . . .” Coln v. City of Savannah , No. 02A01-9507- CV-00152, 1996 WL 544652 at *3 (Tenn. App. Sept. 25, 1996), perm. to appeal granted , Feb. 3, 1997; See also Broyles v. City of Knoxville , No. 03A01-9505-CV-00166, 1995 WL 511904 (Tenn. App. Aug. 30, 1995); Hazelwood v. Certainteed Corp. , No. 02A01-9405-CV-00106, 1995 WL 676042 ( Ten n. App. Nov. 14, 199 5); Cooperwood v. Kroger Food Stores , No. 02A01-9308-CV00182, 1994 WL 725217 (Tenn. App. Dec. 30, 1994). In this case, regar

dless of the appro

ach adopte

d with respect to the open and obvious rule, the result is unaffected. Bragg testified that the hole was noticea

ble only by intentionally looking at the exact place where the hole was located: Q: [W]henyou went out th e last time, there ’s no question you we re in the vicinity of whe

re this particula

r hole was? A: That’s correct

. Q: And if you were looking, there’s nothing--had you been looking at these steps, there’s no

thing that would hav

e obst ructed your view from the top of the steps from seeing this hole, was there? A: There’s nothing- -You mean like-- to block it? Q: If you were looki

ng you could have s

een it. A: If I would have been like inspecting it like that. But just the normal glance that you give when you walk, you wouldn’t see it. But if you reall y l ooked down to see the hole, once you knew it was there you would definitely se

e it. Q: Wellyou alleged in your complaint, did

you not, Ms. Bragg, that

the hole upon proper inspection was easily noticed? A: Upon inspection. When I looked ba ck a fter I fell to see what had caused me to fall and my heel was in the hole, yes, you co uld see it then but you wouldn’t just see it normally walking. Butif you looked for it, you definite

ly would see it.

***** Q: Ms. Bragg, these pict ures which have b

een entered as Collecti ve Exhibit 16, it’s my understanding this is the top layer. A: Correct. ***** Q: So, if you were holding this like this, that wo uld be as you were looking down the ste

ps as you were he

aded down; is that c

orrect? A: That’s correct

. Q: And it’s your testimony that if you were standing there where whoever was standing there taking this picture, you couldn’t see that hole?5

A: I couldn’t see it. It’s very, ver y evident now bec

ause the contras

t, this white that’s filled in. If I had been l ooking down, if I would have been doing like this , I would have saw [sic] it. Q: In other words, if you were paying a ttention to where you were walking you would ha

ve seen it? A: No sir, that’s not cor rect. If I would

have been looking downlooking for a hole looking to fall, then I would have saw it. But just normal walking, just like you just walked over there, you do not

look at every step in front of your feet. You don’t do that when you walk.   Q: So, it’s your testimony t hen, Ms. Bragg, that you were not looking at the steps as you we

re descending th

e steps? A: No, I was not looking down at the steps. I was looking in front of me to not walk into anybody. That’s more of what I was thinking to not do because peop

le were coming up

and down the steps. ** * Q: Ms. Bragg, you don’t genera lly go down steps with

out looking to

see if there’s something on the steps, do you? A: In a

public place I do because normall y there’s nothing o

n the steps. From our review of the record, regardless of the approach adopted with respect to the open and obvious rule, the e

vidence does not p

reponderate

against the trial court’s conclusion that thehole in the steps was not a

n “open and obviou

s condition,” and th

at Bragg did not fa

il to exercise reasonable

care for her own safety. The evidence preponder at es in favor of the trial court’s determination that Metro was one hundred percent negligent. Consequently, the judgmentagainst Metro must be affirmed. The decision of the trial court is affirmed. Costs on appeal are taxed to Appellant for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J.
CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.