# FILED
December 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SECTION AT NASHVILLE

FREDRIKA A. STEINER, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9705- CV-00233 VS. ) ) Davidson Circuit ) No. 94C-2468 THE PARMAN CORPORATION, ) ) Defendant/Appellee. )



### CONCURRI NG OPI NI ON
I concur in the resul t reached in Judge Todd’ s opinion. M y only reason forwriting separately isto focus on what I perceive to be decisive in this case: the fa ct thatthe defendant did not v iolate a duty to the plaint iff. In t hat way, I avoid the naggingpr oblem of the court appor tioning fault in a case in w hich the plain tiff was entitled to a jury trial.

I start from the poi nt th at every bod y owes to every body else a duty of due care under all the c ircumstances

. Doe v. Linder Co nstr. Co. , 845 S.W.2d 173 (Tenn. 1992). For

a possessor of property, a duty to take action to prevent injuryto an invitee depends on

“the nature and use of the land, the nature of the invitati on, the nature of the relatio nship with the invite e, the opportunity

of the possessor and the invi tee to know and avoid existing or probable dangers and any and all other factors whi ch would c hallenge the attenti on of t he possessor

and/or invitee to the probabili ty of danger to the invitee . . . .” Zang v. Leonard, 643 S.W .2d 657 at 663 (Ten n. App. 1982)(emph asis added).

It naturally

follows that a premises ow ner or operator has no duty to an in vitee whose know ledge of a danger ous condition i s as great as the owner or operator’s. As the Supreme Cour t said in Eaton v. McClain , 891 S.W.2d 587 (Tenn.1 The S u p r e me Court gr anted per mission t o appeal in Cooperwood on the questi on of whether the open and obvi ous rul e is l imit ed to det erminin g whe thera d uty of care is owed o r whet her i t al so appli es in t he as sessm ent of rel ati ve degrees of faul t. The appeal was dismissed, however, and the Court di d not r each thatissue. - 2 - 1994): “Alth ough Ten ness ee la w provid es th at pr emis es own ers o we invitees the duty to warn of late nt or hidden dang ers, this dut y does not ar ise if the dange r is open and obvious.”891 S.W.2d at 595.

Assuming that a o ne and one-half to two inch difference i n elevation betwe en a concrete pad a nd the surroundi ng asphalt at a service stati on i s dangerous, the condition w as as apparent to

an invite e as it was to the owner. Therefore, I do not think that the owner had a duty

to warn t he plaintiff to watch her step.

I am awa re th at th e oth er se ctio ns of this c ourt have held that the “open and obvious” ru le has gon e the way of contribu tory negl i gence, remote contributory negligence and implied assumption of the r isk. See Broyles v. City of Knoxville , App. No. 03A01-9505-CV- 00166 (filed at Knoxville, A ug. 30, 1995); Cooperwood v. Kr oger Food Stores , App. No. 02A01- 9308-CV-00182 (filed atJackson, Dec . 30, 1994). But, it seems to me that

my colleagues

have draw n that conclusi on where the open and obviousrule is asserted as an absolute bar to a claim against an otherwis e neglig ent defendant. 1 In that contex t, I would ag ree that the negl igence of the pl aintiff and the defendant should be compare d, but there is nothing to compare where the defendant did not v iol ate a

duty to t he pl aint iff.

I am comfortable w ith what I have said so far. I beco me uncomfortable when I am asked to appor tion fault in a case where t h e plainti ff has a right to a jury trial. Where there is some evi dence on both sides of the issue, I am not so sure that the court can say

as a matter of law

that the plaint iff’s fault exceeds that of the defendant. In cases tr ied withou t a jury, of course, the court asthe finder of f act must- 3 -

make that determination. But the question remains one f or the juryin case s where eith er pa rty exe rcise s the right to de man d a ju ry.

I also admit to ha

ving s ome trouble w ith the quest ion of whether it is for the jury to determine if a condition is open and obvious. It may be. But in th is case I think reasonab le minds could reach only one conclusio n: that the plaint iff knew as much about the hazard as the defendant did. She had walked over the place where the concrete met theasphalt on her way tothe store, and t he difference in elev ation was plai nly vi sible.

Therefore, I concur

in the majori ty opinion.

_________________________________ BEN H. CAN TRELL, JUDGE