FILED

August 19, 1998

Cecil W. Crowson

Appellate Court Clerk

JEROME R. HERBISON and )

MARGARET H. HERBISON, ) Davidson Circuit

) No. 96C-2636

Plaintiffs/Appellants, )

)

VS. )

)

HANSEN CHRYSLER-PLYMOUTH, ) 

INC., ) Appeal No.

) 01A01-9710-CV-00594

Defendant/Appellee. )

IN THE COURT OF APPEALS 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 Avenue South

Nashville, Tennessee 37204

ATTORNEYS FOR PLAINTIFFS/APPELLANTS

Gareth S. Aden, #2371

GULLETT, SANFORD, ROBINSON & MARTIN, 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, MIDDLE SECTION

CONCURS:

WILLIAM B. CAIN, JUDGE

CONCURS IN RESULT:

WILLIAM C. KOCH, JR., JUDGE
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JEROME R. HERBISON and )

MARGARET H. HERBISON, ) Davidson Circuit

) No. 96C-2636

Plaintiffs/Appellants, )

)

VS. )

)

HANSEN CHRYSLER-PLYMOUTH, ) 

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-Plymouth, Inc., for injuries

received by Mr. Herbison on the premises of the defendant when he tripped on a metal strip

imbedded in the concrete floor on the premises of defendant.

The defendant is an automobile dealer with a large shop for servicing and repairing

automobiles. The parts department is located in the shop. The outside entrance to the shop is

equipped with 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 procure parts from the parts department. As he

entered the shop, he noticed that the parts department had been moved and was looking for it as

he tripped on the protruding track. He testified that the track 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, 891

S.W.2d 587, in which the Supreme Court recognized the “open and obvious” rule in respect to
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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 plaintiffs’ suit without stating a

reason, but it is clear that the open and obvious rule was the reason.

The only issue on appeal is the correctness of the summary judgment.

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

request for admissions, the deposition of the injured plaintiff, and the depositions 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 doorways 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 doorway, that if he had been looking at his path he would have seen the

yellow metal ridge, but he was 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 enter bay, walk in Service Entrance” with arrow pointing to another door,

and “Service Entrance” beside the other door, but that he thought the signs referred to service

customers and not parts customers.

The parties stipulated that the metal strip protruded 15/16 inch to 1-1/8 inch above the

concrete floor.
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Plaintiffs’ response to the interrogatory admitted that the metal strip did not violate any

building code.

The injured plaintiff’s deposition stated that the entrance where he was injured could be

made safer for pedestrians by welding strips on either side of the imbedded strip so as to form

a sloping ramp and by painting said ramps with yellow paint.

In his deposition, the service manager admitted that pedestrians do use the vehicle

entrance and that, other than the 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 rule had 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 jurisdictions, 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

rise to a duty to act with due care if the foreseeable

probability and gravity of harm posed by a defendant’s

conduct outweigh the burden upon the defendant to engage

in alternative conduct that would prevent the harm. McCall

v. Wilder, 913 S.W.2d 150 (Tenn. 1995). Applying this

analysis, if the foreseeability and gravity of harm posed by

the defendant’s conduct, even if “open and obvious,”

outweigh the burden upon the defendant to engage in

alternative conduct, the defendant has a duty to act with

reasonable care and the comparative fault principles 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 activity or condition on the land whose

danger is known or obvious to them, unless

the possessor should anticipate the harm

despite such knowledge or obviousness.

- - - -

Such reason to expect harm to the visitor

from known or obvious dangers may arise,

for example, where the possessor has reason

to expect that the invitee’s attention may be

distracted, so that he will not discover what is
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obvious, or will forget what he has

discovered, or fail to protect himself against

it. Such reason may also arise where the

possessor has reason to expect that the

invitee will proceed to encounter the known

or obvious danger because to a reasonable

man in his position the advantages of doing

so would outweigh the apparent risk.

Moreover, the open and obvious rule is inconsistent

with our cases which analyze duty by balancing

foreseeability and gravity of harm with feasibility and

availability of alternatives that would have avoided the harm.

In accordance with the directive of the Supreme Court, this Court has evaluated the

nature of the danger, the duty of a reasonably prudent user of the premises and have

concluded that the controller of the premises performed its duty and the sole cause of the

injury was the culpable inattention of the injured party.

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

for the parts department, he had adequate opportunity to familiarize himself with the nature

of his pathway in his previous visits and, on the day of his injury as he approached the

doorway from the parking lot. This conclusion renders unnecessary any consideration of

comparative negligence.

The judgment of the Trial Court is affirmed. Costs of this appeal are assessed to the

appellants. The cause is remanded to the Trial Court for necessary further proceedings.

AFFIRMED AND REMANDED.

_________________________________

HENRY F. TODD

PRESIDINGJUDGE,MIDDLE SECTION

CONCURS:

_____________________________

WILLIAM B. CAIN, JUDGE

CONCURS IN RESULT:

_____________________________

WILLIAM C. KOCH, JR., JUDGE
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