FILED

July 27, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

BOBBY RAY SEARS, )

)

Plaintiff/Appellant, )

) Davidson Circuit

VS. ) No. 95C-1570

)

METROPOLITAN NASHVILLE ) Appeal No.

AIRPORT AUTHORITY and ) 01A01-9703-CV-00138

REPUBLIC PARKING SYSTEMS, )

INC., )

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE THOMAS W. BROTHERS, JUDGE

For Bobby Ray Sears: For Metropolitan Nashville 

Airport Authority:

Mike W. Binkley

Nashville, Tennessee D. Kirk Shaffer

Nancy A. Vincent

Stokes & Bartholomew

Nashville, Tennessee

For Republic Parking Systems, Inc.:

Gerald C. Wigger

Nashville, Tennessee

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1Most of the material facts in this case are undisputed. Accordingly, since the trial court

granted summary judgment, our recitation of the facts is based on the view of the evidence that is

most favorable to Mr. Sears. See Robinson v. Omer, 952 S.W.2d 423, 424-25 (Tenn. 1997).

2

In fact, the last time Mr. Sears had been at the airport was 1986.

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O P I N I O N

This appeal involves a motorcycle rider who was injured by the descending

wooden arm of a traffic control device at an exit from the short term parking area of

the Nashville International Airport. The motorcyclist filed suit in the Circuit Court

for Davidson County against the Metropolitan Airport Authority and the operator of

the airport parking facilities, alleging that they had failed to adequately warn him of

the potentially dangerous condition at the exit. The trial court granted the defendants’

motions for summary judgment, and the rider appealed. We have determined that the

defendants are not entitled to a judgment as a matter of law based on this record and,

therefore, vacate the summary judgment order and remand the case for further

proceedings.

I.

Bobby Ray Sears is a sixty-year-old heating and air conditioning technician

who has worked for the Metropolitan Government for thirty years.1

 He lives in

Nashville with his wife, his step-daughter, and his wife’s mother. Mr. Sears has been

riding motorcycles for pleasure since 1979 and, at the time of his injuries, owned a

1984 full size Honda motorcycle.

On May 21, 1994, Mr. Sears drove his motorcycle to the Nashville

International Airport to meet his step-daughter who was returning from a visit to New

Jersey. His wife drove to the airport separately in order to give her daughter a ride

home. Upon arriving at the airport, Mr. Sears began looking for an appropriate place

to park his motorcycle. Because he was not an habitué of the airport,2

 he followed

the signs stating “Passenger Pick-up Use Short Term Parking.” Accordingly, Mr.

Sears entered the covered short term parking garage through its designated entrance

and parked his motorcycle in a space normally used by automobiles.

After greeting his step-daughter and wife in the baggage claim area, Mr. Sears

returned to the short term parking garage, got on his motorcycle, and proceeded to
3Mr. Sears explained: “I don’t know anything about out there, you know. I was just – all I

did was follow signs.”

4Concrete curbs on each side of the exit prevent visitors from circumventing the traffic

control device.

-3-

CAUTION

AUTOS ONLY

NO

MOTORCYCLES,

BICYCLES

OR

PEDESTRIANS

leave the airport. He followed the posted signs as he left the parking lot.3

 These

signs led him to an exit controlled by a traffic control device that maintained the rate

at which visitors left the short term parking area. This device consists of a bright

yellow mechanical stanchion to which a wooden arm painted with diagonal black and

white stripes was attached. When the wooden arm is at rest, it is parallel to the

ground and blocks the exit from the short term parking area.4 As vehicles approach,

the stanchion automatically raises the arm long enough for one vehicle to pass. The

stanchion is on the curb to the left of the visitors leaving the short term parking lot.

A sign on the side of the stanchion facing the persons leaving the parking lot states:

This sign is, however, largely obscured from the view of persons leaving the parking

lot by a large, yellow cylindrical post anchored in the concrete in front of the

mechanical stanchion in order to protect the stanchion from damage by passing

vehicles. 

Several vehicles were ahead of Mr. Sears as he approached the exit.

Accordingly, he stopped and waited while they exited through the traffic control

device. Mr. Sears saw the mechanical arm rise for the vehicle immediately in front

of him and then descend to its original position after the vehicle left. His view of the

mechanical stanchion and the sign was blocked first by the vehicle in front of him and

then by the yellow protective post. Mr. Sears slowly approached the mechanical arm

and paused to give it time to rise. When the arm moved up, he began to drive through

the exit. Before he could drive through, the arm came back down, driving the

motorcycle’s windshield into his face and dragging him off his motorcycle. Mr.

Sears landed in a nearby flowerbed with the motorcycle on top of him. A visitor in

a vehicle behind Mr. Sears assisted in righting the motorcycle and in summoning
5Republic Parking’s relationship to this dispute and to the Airport Authority cannot be

reliably determined from this record. Mr. Sears’ complaint alleges, and Republic Parking’s answer

admits, only that Republic Parking “was transacting business in Nashville, Davidson County,

Tennessee on or about May 21, 1994.” For the purpose of this appeal, we are assuming that

Republic Parking was operating or managing the parking facilities at the airport, under either license

or contract, and thus was an agent of the Airport Authority. However, Republic Parking’s posture

in the case remains to be proved with competent evidence. 

-4-

airport security personnel who prepared a report of the incident. Even though Mr.

Sears was shaken by his fall, he drove his motorcycle home. Later, he was treated at

an emergency room for a cut lip and injuries to his right knee and neck.

On May 16, 1995, Mr. Sears filed a Governmental Tort Liability Act suit in the

Circuit Court for Davidson County against the Metropolitan Nashville Airport

Authority (“Airport Authority”) and Republic Parking System, Inc. (“Republic

Parking”).5 He characterized the mechanical stanchion and wooden control arm as

“a hidden or concealed peril.” He also alleged that both the Airport Authority and

Republic Parking had failed to warn motorcyclists of the potential danger of the exit

gate and that they had failed to properly maintain the existing warning signs. He also

asserted that the Airport Authority’s and Republic’s negligence had created a

“dangerous condition at the exit area.”

Both the Airport Authority and Republic Parking denied liability. In July

1996, they moved for summary judgment on the grounds (1) that they were immune

from suit under the Governmental Tort Liability Act because they did not have actual

or constructive notice of the alleged “dangerous condition at the exit area” and (2)

that the condition and operation of the traffic control device was open and obvious

and that Mr. Sears had been inattentive for failing to read the warning signs posted

both at the entrance and exit of the short term parking area. The trial court granted

both motions for summary judgment. It found as a matter of law (1) that the traffic

control device was not a defective, unsafe, or dangerous condition, (2) that the

Airport Authority had no notice of the condition, (3) that the Airport Authority and

Republic Parking owed no duty to Mr. Sears because the condition and operation of

the traffic control device were open and obvious, and (4) that the obstruction or

misplacement of the warning signs could not have caused Mr. Sears’ injuries because

he admitted that he did not look at the signs. Mr. Sears has appealed from the trial

court’s decision.

II.
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We begin with the well-settled standards governing appellate review of

summary judgments. Summary judgments are proper in virtually any civil case that

can be resolved on the basis of legal issues alone. See Byrd v. Hall, 847 S.W.2d 208,

210 (Tenn. 1993); Tomlinson v. Kelley, 969 S.W.2d 402, 405 (Tenn. Ct. App. 1997).

They are not, however, appropriate when genuine disputes regarding material facts

exist. See Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only

when the undisputed facts, and the inferences reasonably drawn from the undisputed

facts, support one conclusion – that the party seeking the summary judgment is

entitled to a judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,

529 (Tenn. 1998); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997). A summary judgment should not be

granted if any reasonable doubt exists with regard to the conclusions to be drawn

from the evidence. See Chrisman v. Hill Home Dev., Inc., 978 S.W.2d 535, 538

(Tenn. 1998). 

Unlike other dispositions by a trial court without a jury, a summary judgment

does not enjoy a presumption of correctness on appeal. See Nelson v. Martin, 958

S.W.2d 643, 646 (Tenn. 1997); City of Tullahoma v. Bedford County, 938 S.W.2d

408, 412 (Tenn. 1997). Accordingly, reviewing courts must make a fresh

determination concerning whether the requirements of Tenn. R. Civ. P. 56 have been

satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Mason v.

Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). We must consider the evidence in the

light most favorable to the nonmoving party, and we must resolve all inferences in

the nonmoving party’s favor. See Terry v. Niblack, 979 S.W.2d 583, 585 (Tenn.

1998); Robinson v. Omer, 952 S.W.2d at 426. When reviewing the evidence, we

must determine first whether factual disputes exist. If a factual dispute exists, we

must then determine whether the fact is material to the claim or defense upon which

the summary judgment is predicated and whether the disputed fact creates a genuine

issue for trial. See Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank

Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998). 

III.
6

See Act of May 14, 1973, ch. 345, 1973 Tenn. Pub. Acts 1243, codified as amended, Tenn.

Code Ann. §§ 29-20-101, -407 (1980 & Supp. 1998).

-6-

Even before the enactment of the Tennessee Governmental Tort Liability Act

in 1973,6

 local governmental entities had a duty to use reasonable care to keep their

streets, sidewalks, and other public improvements safe for their reasonably

foreseeable uses by members of the public. See City of Winchester v. Finchum, 201

Tenn. 604, 609, 301 S.W.2d 341, 343 (1957); Flannagan v. Lee, 56 Tenn. App. 600,

603, 409 S.W.2d 385, 387 (1966). Because the duty to maintain streets and sidewalks

in reasonably safe condition was viewed as a proprietary, as opposed to a

governmental, function, see Shepherd v. City of Chattanooga, 168 Tenn. 153, 155,

76 S.W.2d 322, 323 (1934), the courts repeatedly held that local governmental

entities could be held liable for the damages caused by their negligent failure to

maintain their streets and sidewalks in reasonably safe condition. Thus, the liability

of local governmental entities for injuries occurring on sidewalks or streets or in other

public improvements was governed by the same principles that governed the liability

of private individuals. See Johnson v. City of Jackson, 194 Tenn. 20, 22, 250 S.W.2d

1, 2 (1952) (holding that the tort liability of a municipality acting in its proprietary

capacity is the same as the tort liability of an individual). 

The Tennessee Governmental Tort Liability Act eliminated the distinction

between governmental and proprietary functions, see Fretwell v. Chaffin, 652 S.W.2d

755, 756 (Tenn. 1983); Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d

771, 776 (Tenn. Ct. App. 1983), and defined the circumstances in which local

governmental entities could be subject to suits for damages. See Hawks v. City of

Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997). Consistent with the earlier

precedents, the Act authorized civil actions for damages against local governmental

entities for the “defective, unsafe, or dangerous condition of any street, alley,

sidewalk or highway” and for the “dangerous or defective condition of any public

building, structure, dam, reservoir or other public improvement” owned and

controlled by a local governmental entity. See Tenn. Code Ann. §§ 29-20-203(a),

-204(a) (1980 & Supp. 1998). For these purposes, the terms “street” and “highway”

include traffic control devices installed by the local governmental entity. See Tenn.

Code Ann. § 29-20-203(a).

These statutes are directly applicable to the case at hand. The Airport

Authority is a “governmental entity” as defined in Tenn. Code Ann. § 29-20-102(3)
7The Metropolitan Airport Authority Act states that the “airport authorities created pursuant

to this chapter shall be public and governmental bodies acting as agencies and instrumentalities of

the creating and participating municipalities.” See Tenn. Code Ann. § 42-4-102(a) (1993). These

authorities are created by a resolution adopted by the municipality’s local governing body and

approved by the executive officer of the municipality. See Tenn. Code Ann. § 42-4-104(c) (1993).

8Authoritative texts state that airports and parking facilities, especially facilities charging a

fee to park, are proprietary activities and that governmental entities may be liable for negligence in

their operation and maintenance. See 18A James Perkowitz-Solheim, et al., McQuillin Municipal

Corporations §§ 53.96, 53.107.10 (3d ed. 1993); 1A Chester J. Antieau & John M. Antieau,

Antieau’s Local Government Law §§ 11.127, 11.128 (1995). Accordingly, the California Court of

Appeals has held that a local governmental entity may be held liable for failing to provide adequate

lighting in an airport parking lot. See Slapin v. Los Angeles Int’l Airport, 135 Cal. Rptr. 296, 298

(App. Ct. 1976). 

-7-

(Supp. 1998) because it is an instrumentality of government created by act of the

General Assembly and the Metropolitan Government of Nashville and Davidson

County. See Tenn. Code Ann. §§ 42-4-101, -117 (1993 & Supp. 1998).7

 In addition,

the parking lots at the airport, together with the traffic control devices installed in the

parking lots, amount to streets, sidewalks, and public improvements owned and

controlled by the Airport Authority for the purpose of Tenn. Code Ann. §§ 29-20-

203(a), -204(a).8

IV.

We now turn to the principles governing liability determinations in premises

liability cases involving local governmental entities. Because of their superior

knowledge of the condition of the premises, owners and occupiers of property,

including owners and occupiers of public property, owe persons lawfully on their

property the duty of reasonable care under all the circumstances. See McCormick v.

Waters, 594 S.W.2d 385, 387 (Tenn. 1980); Jones v. Exxon Corp., 940 S.W.2d 69,

71 (Tenn. Ct. App. 1996). This duty includes the duty either to remove dangerous

conditions on their premises or to warn persons about dangerous conditions that the

owner knows or should know about. See Blair v. Campbell, 924 S.W.2d 75, 76

(Tenn. 1996); Eaton v. McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994). It does not

include the duty to remove or to warn about conditions from which no unreasonable

risk could be anticipated or conditions that the owner or occupier neither knew about

nor could have reasonably discovered. See Rice v. Sabir, 979 S.W.2d 305, 309

(Tenn. 1998).

Premises liability claims against local governmental entities have four basic

ingredients: (1) proof that the governmental entity owns and controls the premises
-8-

where the injury occurred; (2) proof that a dangerous or defective condition, or in the

case of sidewalks and streets an unsafe condition, caused the injury; (3) proof that the

governmental entity had “constructive and/or actual notice” of the condition; and (4)

proof that the governmental entity breached its duty either to remove or eliminate the

dangerous condition or to provide adequate warnings of the condition’s existence.

See Tenn. Code Ann. §§ 29-20-203(b), -204(b); Burgess v. Harley, 934 S.W.2d 58,

63 (Tenn. Ct. App. 1996). 

The requirement of actual or constructive notice reflects the understanding that

a property owner’s duty stems from its superior knowledge of the condition of the

premises. The proof of actual or constructive notice may take two forms. First,

actual knowledge can be proved by demonstrating that the owner or occupier, or an

agent of the owner or occupier, was responsible for causing or creating the condition.

Second, if the owner or occupier, or their agent, did not cause or create the condition,

constructive notice can be proved by demonstrating that the condition existed for a

sufficiently long length of time that the owner or occupier, or their agent, in the

exercise of reasonable care, should have become aware of the condition. See Martin

v. Washmaster Auto Ctr., U.S.A., 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996). This

court has applied these principles in premises liability cases brought under the

Tennessee Governmental Tort Liability Act. See McCorkle v. County of Dyer, No.

02A01-9701-CV-00020, 1998 WL 155437, at *2-3 (Tenn. Ct. App. Apr. 6, 1998)

(Tenn. R. App. P. 11 application dismissed); Wilson v. City of Lebanon, No. 01A01-

9110-CV-00353, 1992 WL 279863, at *2 (Tenn. Ct. App. Oct. 14, 1992) (No Tenn.

R. App. P. 11 application filed).

V.

It remains to be decided whether the Airport Authority and Republic Parking

are entitled, as a matter of law, to a judgment dismissing Mr. Sears’ negligence

claims against them. They can prevail only if one of two circumstances exist. First,

they are entitled to a summary judgment if they establish conclusively that they have

an affirmative defense to Mr. Sears’ action. Second, they are entitled to a summary

judgment if they affirmatively negate an essential element of Mr. Sears’ case. See

Whitehaven Community Baptist Church v. Holloway, 973 S.W.2d 592, 595 (Tenn.
-9-

1998); Byrd v. Hall, 847 S.W.2d at 215 n.5. In either circumstance, they have

demonstrated that there is no need for a trial.

Neither the Airport Authority nor Republic Parking used their summary

judgment motion to assert an affirmative defense. Rather, they were essentially

asserting that Mr. Sears would be unable to prove all the elements of his cause of

action. As we will demonstrate, the Airport Authority and Republic Parking have not

succeeded. Viewing the evidence in the light most favorable to Mr. Sears, there is

substantial doubt that the facts require a judgment for either the Airport Authority or

Republic Parking as a matter of law.

A.

OWNERSHIP AND CONTROL OF THE PREMISES

There is no real dispute regarding the ownership and control of the short term

parking lot at the airport. The Airport Authority owns and controls this parking lot.

While undoubtedly Republic Parking has some control over the operation of the

parking lot, there is no evidence that it exercises exclusive control over the parking

lot or that it is not acting as the Airport Authority’s agent with regard to the operation

and maintenance of the parking lot. There is likewise no proof that Republic Parking

is somehow independently responsible for installing and maintaining the traffic

control device at issue in this case.

B.

THE EXISTENCE OF A DANGEROUS CONDITION

The Airport Authority asserts in its brief that “the condition of the exit arm

cannot be deemed ‘dangerous’” as a matter of law. However, in negligence cases, the

jury is ordinarily left to decide whether a condition is dangerous when some

competent evidence of hazard exists. See Helton v. Knox County, 922 S.W.2d 877,

882 (Tenn. 1996); Ogilvie v. Metropolitan Gov’t, No. 01A01-9709-CV-00466, 1998

WL 272793, at *2 (Tenn. Ct. App. May 29, 1998) (No Tenn. R. App. P. 11

application filed); City of Knoxville v. Ferguson, 34 Tenn. App. 585, 590, 241 S.W.2d

612, 614 (1951). This record contains competent evidence from which a reasonable
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fact-finder could conclude that the traffic control device at the exit to the short term

parking lot was dangerous or unsafe.

The very manner in which Mr. Sears was injured provides an indication of how

dangerous the traffic control device can be to persons who are not riding in vehicles

with roofs. The arm closed directly on Mr. Sears because his motorcycle had no roof,

roll bar, or other similar protection. In addition, the fact that the Airport Authority

and Republic Parking decided to post cautionary signs directed to pedestrians,

bicyclists, and motorcyclists provides some evidence that the operation of the traffic

control device might pose a danger to persons on foot or riding motorcycles or

bicycles.

C.

KNOWLEDGE OF THE EXISTENCE OF THE CONDITION

Both the Airport Authority and Republic Parking knew of the existence and

manner of operation of the traffic control device at the exit from the short term

parking lot. Because they were responsible for the device’s installation and

maintenance, it is reasonable to presume that they understood how it was designed

to operate and how it was operating in May 1994. The fact that they placed a warning

sign on the stanchion cautioning motorcyclists, bicyclists, and pedestrians not to pass

through the device indicates that they understood that the device, even when

operating normally, could present a danger to persons who were not riding in

vehicles.

D.

BREACH OF THE DUTY TO REMOVE OR WARN

Owners or occupiers of property may discharge their duty to keep their

premises safe for its reasonably expected use in one of two ways. They may either

remove or eliminate the dangerous condition, or they may warn persons lawfully on

the property of the existence of the dangerous condition. The purpose of the warning

is to enable persons lawfully on the premises to avoid the dangerous condition.

Removing the allegedly dangerous condition was not an option in this case because

the traffic control device was an integral part of the short term parking lot.

Accordingly, the duty implicated in this case is the duty to warn.
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 Municipal corporations, like other owners or occupiers of property, have a

duty to warn persons of dangers on their property. See Coln v. City of Savannah, 966

S.W.2d at 39; accord Galati v. Lake Havasu City, 920 P.2d 11, 16 (Ariz. Ct. App.

1996); Welsh v. Metropolitan Dade County, 366 So.2d 518, 521 (Fla. Dist. Ct. App.

1979); Schweizer v. City of Maplewood, 784 S.W.2d 842, 843 (Mo. Ct. App. 1990);

Roberts v. City of Grapevine, 923 S.W.2d 169, 171-72 (Tex. App. 1996); Smith v.

Acme Paving Co., 558 P.2d 811, 814-15 (Wash. Ct. App. 1976). When this duty

exists, questions arise concerning the nature and extent of the warning that should be

required.

As a general matter, local governmental entities need only use ordinary care

when they provide warnings of the existence of a dangerous condition. See Bannister

v. Town of Noble, 812 F.2d 1265, 1268 (10th Cir. 1987); Cooper v. City of Fairhope,

83 So.2d 321, 323 (Ala. 1955). The warning must be calculated to bring the danger

to the attention of an ordinary prudent person under the circumstances. See Evridge

v. American Honda Motor Co., 685 S.W.2d 632, 636-37 (Tenn. 1985) (discussing the

adequacy of warnings in product liability cases); Trimble v. Irwin, 59 Tenn. App. 465,

473, 441 S.W.2d 818, 822 (1968). Once a court determines that a duty to warn exists,

it is for the jury to decide whether the actions of the owner or occupier of the property

satisfactorily discharged the duty. See Glenn v. Conner, 533 S.W.2d 297, 302 (Tenn.

1976); see also Bigelow v. City of Ontario, 99 P.2d 298, 301-02 (Cal. Ct. App. 1940)

(stating that the sufficiency of warnings given by the city of a dangerous condition

should be left to determination by the triers of fact).

Courts and legal commentators have written extensively on the content and

formats appropriate to warnings, and we need not catalogue this œuvre here. At this

stage of the proceeding, it is sufficient to note that the sufficiency of a warning may

depend on such things as its placement, its content, the use of color and size of print,

and the employment of symbols used to draw attention to the nature and extent of the

adjunctive danger. See e.g., McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 656

(7th Cir. 1998) (containing a general discussion on warnings); Salvati v. Department

of State Highways, 405 N.W.2d 856, 859, 862-63 (Mich. 1982); David Polin, Failure

to Warn as Proximate Cause of Injury, 8 Am. Jur. Proof of Facts 3d 547 (1990).

Mr. Sears filed a detailed affidavit opposing the motion for summary judgment

and included with the affidavit a videotape made two days after the accident showing
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the route he used to enter and leave the parking lot. He states in his affidavit that on

the day he went to the airport, there was a large blue sign at the entrance to the

parking lot containing information about the price to park. He also states that as he

entered the parking lot, he did not see any sign warning motorcyclists not to park in

the short term parking lot or cautioning them about the danger posed by the operation

of the traffic control device at the exit from the parking lot. In addition, he states that

he observed no warning signs in the portion of the parking garage where he parked.

Finally, Mr. Sears concludes that if signs were present, their size, location, and color

detracted from their prominence and visibility to persons entering and leaving the

parking lot. 

Mr. Sears also states that he was unaware of other exits from the short term

parking lot that would not have required him to pass through a traffic control device

similar to the one that injured him. He added that there were no signs in the parking

lot directing motorcyclists to these exits. He also stated that he did not see the

caution sign on the stanchion as he left the parking lot “because it is relatively small,

painted the same color as the gate post and barrier post, and was obstructed from view

by the barrier post which is at the same approximate height . . .” The videotape

attached to Mr. Sears’ affidavit strongly corroborates Mr. Sears’ testimony. 

After reviewing the evidence both supporting and opposing the summary

judgment motions, we conclude that reasonable minds could differ on whether the

Airport Authority and Republic Parking gave adequate warning that the short-term

parking exit gate arm's operation posed a hazard to motorcyclists. Accordingly, the

Airport Authority and Republic Parking have not affirmatively negated this essential

element of Mr. Sears’ case.

E.

THE CAUSE OF MR. SEARS’ INJURIES

Both the Airport Authority and Republic Parking argued, and the trial court

apparently concluded, that Mr. Sears’ injuries were caused not by the traffic control

device but rather by his inattentiveness. As Republic Parking puts it, Mr. Sears

“admitted during his deposition that he was not paying attention while traveling

through the controlled parking area.” The Airport Authority adds that the undisputed

facts demonstrate that Mr. Sears “could have seen the yellow protective post and
-13-

block from which the arm extended, but he did not see them because he was watching

the arm.”

No negligence claim can succeed unless the plaintiff can prove that the

defendant’s conduct was a cause-in-fact of the plaintiff's loss. See Waste Mgmt., Inc.

of Tenn. v. South Cent. Bell Tel. Co., No. 01A01-9504-CV-00182, 1997 WL 71811,

at *4 (Tenn. Ct. App. Feb. 21, 1997) (No Tenn. R. App. P. 11 application filed). The

plaintiff need not prove that the defendant’s conduct was the sole cause-in-fact of the

loss because a single injury may be the result of more than one cause-in-fact. See

Burgess v. Harley, 934 S.W.2d at 68. To be the cause-in-fact of an injury, the

negligent conduct must have been a substantial factor in bringing about the injury.

See Boling v. Tennessee State Bank, 890 S.W.2d 32, 36 (Tenn. 1994). Cause-in-fact

issues are ordinarily questions of fact for the jury. See Eaton v. McLain, 891 S.W.2d

at 590.

Persons operating moving vehicles, including motorcycles, are required to

observe those things which, in the exercise of ordinary care, are there to be seen. See

Ferrer v. City of Memphis, Shelby Law No. 5, 1988 WL 55741, at *2 (Tenn. Ct. App.

June 2, 1988) perm. app. denied (Tenn. Aug. 22, 1988); Shew v. Bailey, 37 Tenn.

App. 40, 46, 260 S.W.2d 362, 364-65 (1951); King v. Tennessee Cent. Ry. Co., 36

Tenn. App. 192, 201, 253 S.W.2d 202, 206 (1952). Mr. Sears' statements in his

deposition and affidavit do not necessarily lead to the conclusion that he was

inattentive to visible hazards in his path. He stated that he watched the arm rise and

descend when the automobile in front of him left the parking lot, and he added that

he could not see the stanchion of the traffic control device where the caution sign was

affixed because the automobiles ahead of him blocked his view until the last

automobile passed the traffic control device.

Mr. Sears watched the movement of the arm on the traffic control device when

his time came to leave the parking lot. When the arm did not rise as quickly as he

expected, Mr. Sears was required to bring his motorcycle to almost a complete stop.

He proceeded through the traffic control device only after he believed that the arm

had ascended to its maximum height. Based on this evidence, we cannot say, either

as a finding of fact or conclusion of law, that Mr. Sears was inattentive or that he

would not have been injured had he been paying more attention to the stanchion as

opposed to the moving arm on the traffic control device. If anything, a reasonable
-14-

finder-of-fact might be more apt to conclude that a person who did not watch the

moving arm on the traffic control device was inattentive.

The Airport Authority and Republic Parking attach a great deal of significance

to the caution sign on the stanchion of the traffic control device at the exit from the

parking lot. However, the impact of this sign on persons leaving the parking lot is

diluted by the fact that it is largely obscured by the yellow post in front of it. A

reasonable fact-finder could conclude that the partially obscured sign would fail to

provide any meaningful warning, even to persons looking in the sign's general

direction.

Causation questions are fact-sensitive and require that the evidence be

reviewed in light of logic and common sense. See Burgess v. Harley, 934 S.W.2d at

68-69. It is not our prerogative at this stage of the proceeding and in light of this

record to conclude that Mr. Sears’ conduct was the sole cause-in-fact of his injuries.

The evidence concerning causation does not entitle the Airport Authority or Republic

Parking to a judgment as a matter of law. What part, if any, Mr. Sears' inattentiveness

played in his injuries should be left to the fact-finder's determination under principles

of comparative fault. 

VI.

The trial court also based its decision to grant the Airport Authority and

Republic Parking summary judgments on its conclusion that the operation and

condition of the traffic control device was open and obvious. The trial court arrived

at this conclusion before the Tennessee Supreme Court determined that owners and

occupiers of premises were not relieved of their duty to remove or to warn of a

dangerous condition simply because the danger was “open and obvious.” See Coln

v. City of Savannah, 966 S.W.2d at 43. Now that the “open and obvious” doctrine

has been subsumed in the comparative fault analysis, we doubt that the trial court

would have dismissed Mr. Sears’ complaint solely on the basis that the operation and

condition of the traffic control device was open and obvious.

VII.
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We vacate the summary judgment and remand the case to the trial court for

further proceedings consistent with this opinion. We also tax the costs of this appeal

in equal proportions to the Metropolitan Nashville Airport Authority and Republic

Parking Systems, Inc. for which execution, if necessary, may issue. 

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________

HENRY F. TODD,

PRESIDING JUDGE, M.S.

_________________________________

WALTER W. BUSSART,

 SPECIAL JUDGE