# FILED August 19, 1998 Cecil W. Crowson Appellate Cou rt Clerk JEROME R. HERBISON and ) MARGARET H. HERBISON, ) Davidson Circuit ) No. 96C-2636 Plaintiffs/Appellants

, )

) VS. ) ) HANSEN CHRYSLER-P LYMOUTH, ) INC., ) Appeal No. ) 01A01-9710-CV-00594 Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE BARBARA N. HAYNES, JUDGE

Robert L. Whittaker, #17209 1712 Parkway Towers 404 James Robertson Parkway Nashville, Tennessee 37219 John E. Herbison, #12659 2016 Eighth Avenu

e South Nashville, Tennessee 37204 ATTORNEYS FOR PLAINTIFF S/APPELLANTS Gareth S. Aden, #2371 GULLETT , SANF ORD, R OBINSO N & MAR TIN, PLLC 230 Fourth Avenue North, 3rd Floor P.O. Box 198888 Nashville, Tennessee 37219-8888 ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCURS: WILLIA M B. CAIN, JUDGE CONCURS IN RESULT: WILLIA M C. KOCH, JR., JUDGE-2-

JEROME R. HERBISON and ) MARGARET H. HERBISON, ) Davidson Circuit ) No. 96C-2636 Plaintiffs/Appellants

, )

) VS. ) ) HANSEN CHRYSLER-P LYMOUTH, ) INC., ) Appeal No. ) 01A01-9710-CV-00594 Defendant/Appellee. )



## O P I N I O N
The plaintiffs, Jerome R. And wife Margaret Herbison, have appealed from the summary dismissal of their suit against the defendant, Hansen Chrysler-Ply mouth, Inc., for injuries
rece ived by Mr. Herbison on the premises of the defendant when he tripped on a met al stri p imbedded in the con

crete floor on th

e premises of def

endant.

The defendant is an automobile dealer with a large shop for servicing and repa iring automobiles. The p

arts department is located in the shop. The outside entra nce to the shop is equippedwith doors which close against a metal strip which protrudes from 15/16 inch to 1-1/8 inch above the level of the concrete floor.

Mr. Herbison operates his own auto repair shop and occasionally

enters defendant’s shop through the described door way in order to pro cure part s from the parts department. As he entered the shop, he noticed that the parts department had beenmoved and was looking for it as he tripped on the prot

ruding track. H

e testif ied that the t rack could have been made safe for pedestrians by welding additional metal on each side of

the track to create a beveled slope, rather than an abrupt change of elevation.

The defendant moved

for summary

judgment upon the deposition of Mr. Herbison stating the above facts. The memo supporting the motion cited Eaton v. McLain , Tenn. 1994, 8 91 S.W.2d 587, in which the Supreme Court recognized the “open and obvious” rule in respect to-3-

premises liability despite the adoption of “comparative fault” in McIntyre v. Ballentine , Tenn. 1992, 833 S.W.2d 52.

The Trial Court sustained the motion and dismissed p laint iffs’ suit without s tating a reason, but it is clear that the open and obvious rule was the reason.
The only issu

e on appeal is the c

orrectness of th

e summary ju

dgment.

Defendant’s motion for summary judgment was supported by plaintiffs’ responses

to a request for admissions, the deposition of the injured plaintiff, and t he depositi ons of Dennis Hansen and Erik A. Olson.

The responses of the plaintiffs and the deposition of the injured plaintiff established that he had operated an auto repair shop for 23 years, that he visited defendants premises three or four times a year to purchase repair parts, that he almost always entered the shop of the defendant through the doorway

s used for moving

vehicles into

the shop, that,

on July 24, 1995, he parked in the parking lot and walked to the doorway he ordinarily used, that he tripped on a yellow metal ridge in the floor of

the doo rway, that if he had been looking at his path he would have seen the yellow metal ridge, but hewas looking ahead for the parts department which had been moved to a different part of

the shop. He admitted that there were signs at the scene which read “Do not
use vehicle doors to e

nter bay, w

alk in Service Entrance” with arrow pointing to another door, and“Servi ce Entr ance” beside the other door, but that he thought the signs referred to service customers and not p

arts customers.

The parties stipulated that the metal strip protruded 15/16 inch to 1-1/8 inch above the concrete floor.-4- Plaintiffs’ response to

the interrogat

ory admitted

that the metal strip

did not violate any building code.

The injured plaintiff’s deposition stated that the entrancewhere he was injured could be made safer for pedestrians by welding strips on either side of t

he imbedded strip s

o as to form a sloping ramp an

d by painting

said ramps with y

ellow paint.

In his deposition, the s

ervice manag

er admitted that pe

destr ians do use the vehicle entranceandthat, other than th e signs, they have not been forbidden or prevented form doing so.

At the time of the decision of the Trial Court, the open and obvious rul e ha d been recognized

as the law of Tennessee. However, on March 30, 1998, the Supreme Court released its opinion in Coln v. City of Savannah , for publication, in which the Court said:

After reviewing the

two cases before use, the extensive literature, our Tennessee cases on the subject, and cases from other jurisdi

ctions, we conclude that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability . As in any negligence

action, we think

a risk is unreasonable and gives riseto a duty to ac

t with due care if

the foreseeabl

e probability

and gravity

of harm posed by

a defendant’ s conduct outweigh the burden

upon the defenda

nt to engage in alternativeconduct

that would prevent the harm. McCall v. Wilder , 913 S.W.2d 150 (Te nn . 1995). Apply ing this a nalysis, if the foreseeability and gravity of harm posed

b y t he defendant’s conduct, even if “open and obvi ous, ” outweigh the burden upon the defendant to en ga ge in alternative co nduct, the defen dant has a duty

to act with reasonable

care and the co

mparative fault p

rinciples apply under McIntyre v. Balentine, supra
. - - - - (1) A possessor of land is not liable to his invitees for physical harm caused to them by any acti vity or condi

tion on the land whos

e danger is known or obvio us to them, unless the possessor s h ould anticipate the harm despite such knowl

edge or obviousn

ess . - - - - Such reason to expect harm to the vi sitor from kn ow n or obvious dangers may arise, for example, where thepossessor has reason to expect that the invi tee’s attention may be distracted, so that he will not discover w hat is-5- obvious, or will forget what he h as discovered, or f

ail to protect himself a

gainst it. Such reason may also arise w her e the possessor has reason to ex pectthat the invitee will proceed

to encounter the known or obvious danger be cause to a reaso nable man in his po sit ion the advantages of doing so would outweigh the apparent risk. Moreover, the open and obvious rule is inconsistent withour cases which analyze duty by balancing foreseeability

and gravity of harm with feasibility and availability

of alternatives that would h aveavoided the harm.
In accordance with the directive of the Supreme Court, this

Court has evaluated the nat ure of the danger,

the duty of a

reasonably

prudent user of th

e premis es and hav e concluded

that the controller of the p remises performed its duty and the sole cause of the inj ury w as t he cu lpa ble ina tte nti on o f th e injur ed p art y.

Even though the attention of the injured party may have been diverted by his search for the parts departmen

t, he had adequat

e opportunity

to familiarize himself with the nature of his pathway in his previous visits and, on the day of his injury as he approa ched the doorway from the park

ing lot. This conclusion renders unnecessary any consideration of comparative negligence.

The judgment of the T

rial Court is affir

med. Costs of this appeal are assessed to the appellants. The c

ause is remanded

to the Trial Court f

or necessary

further procee

dings. 

### AFFIRMED AND REMANDED.

_________________________________ HENRY F. TODD P RESID ING JUDGE, MIDDLE SECT IO N CONCURS:

_____________________________ WILLIA M B. CAIN, JUDGE
CONCURS IN RESULT:

_____________________________ WILLIA M C. KOCH, JR., JUDGE-6-