# FILED
January 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JAMES DILLARD and wife, ) THELMA DILLARD, ) ) Plaintiffs/Appell

ants, )

) Davidson Circuit VS. ) No. 95C-1880 ) THE VANDERBILT UNIVERSITY ) Appeal No. and CENTRAL PARKING SYST EM, ) 01A01-9706-CV-00265 INC., ) ) Defendants/Appel

lees. )



### APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE THOMAS W. BROTHERS, JUDGE

For Plaintiffs/Appel

lants : For Defendants/A ppell ees : Anthony E. Hagan Joseph F. Welborn, III Lebanon, Tennessee Bass, Berry & Sims Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal c oncer ns a woman who was injured when she tripped over a brightly painted concrete ti re stop in a hospital parking garage. The woman and her husband filed a negligence action in the Circui t Court for Davidson

County against the owner and operator of the parking garage. The trial court granted the de fendants’ motionfor summary jud gment, and the plaintiffs ha ve appealed. We affirm the summary judgment because the def endants did not have a du ty to protect patrons from the tire stop.
I.
Thelma Dillard underwent a cornea transplan t at Vanderbilt Un iversity Medi ca l Center in early 1994. Several months later, on June 29, 1994, she re turned to the hospital for a checkup with her opthamologist. F

ollowing her appointm

ent, Ms. Dillard and her husband

returned to the par

king garage

adjacent to the hospital where they had parke d their car. As Ms. Dillard w alked toward her car, she heard a lo ud engine noise behind her and, fearing that she w

as i n the pa th of an on-coming car, stepped to her left without looking where she was going. Ms. Dillard tripped over a brightly painted concrete ti re stop approximate

ly six inches high, five inches wide, and six feet long. She injured her eye, arm, hip , pelvis, and head in h er fall.
The tire stop over whic

h Ms . Dillard tripped was located on the inside of a curvein the parking garage adjacent to where

the vehicles drove a

nd patrons walked. Itwas out of the normal flow of vehicular and pedestrian traff i c and was placed on adiagonal at the end of a r ow of parking space s, apparently to pre vent cars from parking near enough

to the turn to block vehicular traffic. The tire stop was painted bright yellow, and the fl

oor area around it w

as also marked wit

h bright yellow cross

hatched lines.
Ms. Dillard and her hus

band sued Vanderbilt

University, the ow

ner of the garage, and Republic

Parking System, Inc., the lessee of the garage, alleging that they were negli gent in placing the tir e stop in a common wa

lkway used by pedestr

ians.-3-

Both Vanderbilt and Rep

ublic Parking moved for summary judgment. The trial court granted the motions, reasoning that Vand erbilt and Republic P

arking did

not have a duty to warn pedestria

ns of the tire stop or to re

move it because

the tire stop was open and obvious and because inj uries such as those sus t ained by Ms. Dillard wer e not reasonably

foreseeable. T

he Dillards argu

e on appea l that granting the summary judgment was improper beca

use Ms. Dillard r

eacted to a sudden e

merge ncy and because the risk of h arm to pedestrians was foreseeable.
II.
The standards for revi

ewing summary judgm

ents on appeal no

longerrequire lengthy elaboration. Because summary judgme nts d o not enjoy a presumptio n of correctness

on appeal, see City

of Tullahoma v. Be

dford County , 938 S.W.2d 408, 412 (Tenn. 1997); McClung v. Delta Square Ltd. Partner

ship , 937 S.W.2d 891,

894 (Tenn. 1996), appellate c

ourts must

make a fresh determination concerning whether the requirements of Tenn. R. Ci v. P. 56 have been met. See Hunt er v. Brown , 95 5 S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). Summary judgments are ap propriate only when there are no genuine material disputes regarding the relevant facts and when the moving party is ent itled to a judgment

as amatter of law. See Tenn. R. Civ. P . 56.03; Bain v. Wel ls , 936 S .W.2d 618, 622 (Tenn. 1997); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).
Courts considering summary judgments must view t

he evid ence i n the light most favorable to the nonm

oving party and must als o draw all reasona bl e fa ctual inferences in the nonmoving pa rty’s favor. See Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); Mike v. Po Group, Inc. , 937 S.W.2d 790, 792 (Tenn. 1996). Thus, using standards akin to motions for direc ted verdict , the courts should gr ant a summary judgment only when the undis puted facts reasonably su pport one conclusion

– that the moving p arty is entitled to a judgment as a matter o f law. See McCall v. Wil d er , 913 S.W.2d 150,

153 (Tenn. 1995); Carvell v. Bottoms , 900 S.W.2d at 26.
To succeed with a negl

igence claim, the

plaintiff must esta

bl ish: (1 ) a duty owed by the defendant to

the plaintiff, (2)

conduct by the

defendant falling be

low the applicable

standard of care,

(3) an injury or loss resulting from the defendant’s breach-4-

of that duty, (4) causat ion in fact, and (5) leg al cause. See Haynes v. Hamilto n County , 883 S.W.2d 606, 611 (Tenn. 199 4) ; Bradshaw v. Daniel , 854 S.W.2d 865, 869 ( Tenn. 1993). The nature and scope of a person’s duty in particular circumstances is a question of law to be

decided by the court s. See Blair v. Cam pbell , 924 S.W.2d 7 5, 78 ( Tenn. 1996). Thus, when th e material facts are undi sputed, a summ ary judgment is an appropriate vehicle for determining the existence of a defendant’s duty. See Nichols v. At nip , 844 S.W.2d 655, 658 (Ten n. 1992).
III.
Vanderbilt

and Republic Parkin

g owed a duty to Ms. D illard to exercise reasonable

care under all the

circumstances to pr

otect her from unr

easonable risks of harm. See Hudson v. Gaitan , 675 S.W.2d 699, 703 (Tenn. 1984); Johnson v. EMPE, Inc. , 837 S.W.2d 62,

65 (Tenn. Ct. A

pp. 1992). That dut

y included maintaining

the premises in a reasonably saf e condition, including

removing or warning of

any latent, dangerous conditions that they w ere aware of or

shouldhave been aware of thr ough reasonable

diligence. See Blair v. Cam pbell , 924 S.W.2d at 76 ; Smi th v. Inman Realty Co. , 846 S.W.2d 819, 823 ( Tenn. Ct. App.1992). It did not incl ude warning her of dangers that were

open and obvious. See Eaton v. McC lain , 891 S.W.2d 587, 595 (Tenn. 1994).
A condition is dangerous i f it is reasonably fo

reseeable that the

condition could probably cause harm or injury. See McCall v. Wilder , 913 S.W.2d at 153; McClung v. Delta Square Ltd. P

artnership , 937 S.W.2d at 901. Foreseeability does not require awarenessof a precise type of injury, but

rather an awareness of a general character of injuries similar to t

hose suffered by the plain tiff. See Dawson v. Sears, Roebuck & Co. , 217 Tenn. 72, 81, 394 S.W.2d 877, 881 (196 5) ; Lancaster v. Monte si , 216 Tenn. 50, 56, 390 S.W.2d 217, 220 (1965). If injuries of the

type that occurred could not have been reasonabl

y foreseen, a duty o

f care never arises. See McCall v. Wilder , 913 S.W.2d at

153; Doe v. Linder Constr. Co. , 845 S.W.2d 173, 178 (Tenn. 1992).

Under the undisputed facts o

f this case, Vand

erbilt and Republic P

arking did not breach its duty to Ms . Dillard because the brightly painted tire stop wa

s not a latent dangerous co ndit ion. Tire stops such as the one involved in this case are-5-

common features of parki

ng l ots. Ms . Dillard conced es that she had been in

the garage before and that she was aw are that these

parking stops were i

n the garage. The incident occurred around noon on a clear and sunny day, and Ms. Dillard’s vision was unimpaired. The tire stop was clearly marked w

ith ye l low paint to contrast it from its surroundings. Because noises from car engines a re common in parking garages, itwould be unreasonabl

e to require Vande

rbilt and Republic Parkin

g to have foreseen that Ms. Dillard, upon hearing a car engine, would step s

uddenly to her left w

ithout looking where she was going and stumbleover a brightly painted tire stop that was plainly visible to anyone lookin g where they were going.
IV.
We aff irm the summary judgment and remand the case

to the trial court f

or whatever further proceedings may be required. We also tax the costs of this a ppeal, jointly and severally, to J ames Dillard and T

helma Dillard for

which executio

n, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

__________________________________ BEN H. CANTRELL, JUDGE