# FILED

July 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

BOBBY RAY SEARS, ) ) Plaintiff/Appell

ant, )

) Davidson Circuit VS. ) No. 95C-1570 ) METROPOLITAN NASHVILLE ) Appeal No. AIRPORT AU

THORITY and ) 01A01-9703-CV-00138 REPUBLIC PARKING SYST EMS, ) INC., ) ) Defendants/Appel

lees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

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

For Bobby Ray Sears : For Metropolitan N ashville Airport Authority : Mike W. Binkley Nashville, Tennessee D. Kirk Shaffer Nancy A. Vince

nt Stokes & Bartholomew Nashville, Tennessee
For Republic Parking Systems, Inc. : Gerald C. Wigger Nashville, Tennessee



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Most of the material fact s in this case are undisputed. Accordingly, since the trial court grantedsummary judgment, o ur recitation of t

he 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. -2- 

## O P I N I O N

This appeal involves a m otorcycl e rider who was i njured by the descendi

ng wooden arm of a traffic

control device at a

n 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 A irport Authority and

the operator of the airport parking facilities, alleging thatthey had failed to ad equately warn him

of the potentially dangerous condition at the

exit. The trial court granted the de fendants’ motions for summary judgmen t, and the rider appealed. We have determined that the defendants are not entitled to a judgment as a matter of law b ased on this record a nd, therefore, vacate the summar y judgmen t order and remand the case for further proceedings.

I.
Bobby Ray Sears is a sixty-year-o ld heatin g and air conditioning technician who has worked for the

Metropolitan Gover

nment f or t hirty 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.

O n May 21, 1994, Mr. Sears drove his moto rcycle to the Nash

ville International Airport to meet his step-daughter who

was returning fro

m a visit toNew Jersey. His wife drove to the airport separately in order

to give her daughter a

ride home. Upon arriving at the airport, Mr. S ears began looking for an appropriate place to park his motorcycle . Because he wa s not an habitu é of the ai rport, 2 he followed the signs stating “Pa ssenger Pi ck-up Use Short Term Parking.” Accordingly, Mr. Sears entered the cover

ed short term parkin

g garage through its designated entrance and parked his motorc

ycle in a space norm

ally used by automobile s. After greeting his step-daughter and w ife in the baggage cl

aim area, Mr. Sears returned to the short term par king garage, got on his

motorcycle, and pr

oceede d to3 Mr. Sears explained: “I don’t know anything about out there, you know. I was just – all I did was follow signs.”

4 Co ncrete curb s on each side of th e exit prevent vis

itors from circum

venting the traff

ic control device. -3- 

### CAUTION A UTOS O NLY N O M OTORCYCLES , B ICYCLES OR P EDESTRIANS leave the ai r port. He followe d the posted signs as he l eft the parking lot. 3 These signs led him to an exit cont rolled by a traffic

control device that maintained the rate atwhich visitors left the short term parkin g area. Th is device co nsists of a bright yellow mechanical stanch ion to which a wooden arm painted with diagonal black and whitestripes was attac

hed. When the wooden ar m is at rest, it is pa rallel to the groundand blocks the exit fr om the short term par

king area. 4 As vehicles approa ch, the stanchion automatically raises the arm long enough for one vehi cle to pass. The stanchion is on the curb to the left of the visitors leavi ng the short term parking l ot. A sign on the side of the

stanchion

facing the persons le

aving the parking lot st

ates:

This sign is, however, largely obscured fr om the view of pers ons leaving the parking lot by a la rge, y ellow cylindrical post anchored in the c oncrete in front of

the mechanical stanchio n in orde r to protect the stan chion from damage by

passing vehicles.

Several vehicles were ahead of Mr. Sear s as he ap proached the exit. Accordingly, he stopped and waite d while they exited t

hr ough the traffic control device. Mr. Sears saw the mechanical arm rise for

the vehicle immedia

tely in front of him and then descend

to its original position a

fter the vehicle le

ft. His view of the mechanical stanchion and the sign was blocked first by the vehicle in front of him and then by the yellow protec

tive post. Mr. Se

ars slowly

approached the

mechanical arm and paused to give it time to rise. When the a rm moved up, he began to drive through the exit. Before he

could drive through, the arm ca me back down, driv

ing the motorcycle’s windshield into his face and dra gging him off his motorcycle. Mr. Sears landed in a nearby f lowerbed with the motorcycle on top of him. A visitor in

a vehicle behind Mr. Sears assisted in r ighti ng th e motorcycle and in s ummoning5 Republic Parking’s relatio

nship to th

is 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 Pa rking “was trans

acting business in N

ashville, Davidso

n Co unt y, Tennessee on or about M ay 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 theAirport Authority. However, Republic Parking’s posture in the case remains to be proved with competent evidence. -4- airportsecurity personnel w ho prepared a repor

t o f 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 injur ies to his right knee a

nd neck.

On May 16, 1995, Mr. Sears filed a Go vernmental Tort L

iability Act suit in th

e Circuit Court for Davidson Co unt y against the Metropolitan Nashville Airport Au t hority (“Airport Author ity”) and Republic P

arking System, Inc . (“Republic Parking”). 5 He characterized the mechanical stanchion and wooden control arm as “ahidden or concealed peril.” He also alleged that both the Airpo rt Authority and Republic Parking had failed to warn motorcycli sts of the potential danger

of the exit gate and that they had failed to properly maintain th

e existing warning si

gns. He also asserted that the Airport A uthority’s and Republi

c’s negligence had c

reated a “dangerous condi tion at the exit area.”

Both the Airport Author ity and Republic Par

king denied l iabil ity. In July 1996, they moved for summa ry judgment on the groun ds (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 “dang

erous condition at the exi t area” and (2) t hat the condition and opera tion of the traffic

control device was

open and obvi ou s and that Mr. Sears ha

d been inattentive fo

r failing toread the warning signs posted both at the entrance an

d exit of the short term parking area. The trial court granted both motions for s ummary judgment. It found as a matter of law (1) that the

traffic controldevice was not a defec tive, unsaf e, or dangerous cond

ition, (2) that the Airport Authority had no notice of the condition, (3) that the Airport Authority and Republic Parking owed no duty to Mr. S ears because the c onditionand operation of t he traffic control de

vice were open and

obvious, and (4) that

the obstr uction o r misplacement

of the warning

signs could not

have caused Mr. S ears’ injuries because he admitted that he did no t look at the signs. Mr. Sears has appeal ed from the trial court’s decision.

II.-5- We b egin with the well-set tled standards go verning appellate review o f summary judgments. Summary judgments a re proper in virtua

lly any civil case that

can be resolved on

the basis of legal issu es 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 materi al facts exist. See Tenn. R. Civ. P. 56.04. Thus, a summary j udgment should be grante d only when the undisputed fa cts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the party seek ing the sum mary 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. 199 8); Bain v. Wel ls , 936 S.W.2d 618, 622 (Tenn. 1997). A

summary judgment shoul d not b e granted if a ny reasonab le doubt exists wit h regard to the concl usions to be drawn from the evidence. See Chrisman v. Hill Home Dev., Inc. , 978 S.W.2d 535, 538 (Tenn. 1998).

Unlikeother dispositions by a trial court with

out a jury, a summary judgment does not enjoy a presumption of correctness o

n appeal. See Nelson v. Martin , 958 S.W.2d 643, 646 (Ten n. 1997); City of Tullahoma v. Bedford County , 938 S.W.2d 408, 412 (Tenn. 1997). Accordingly, re viewing courts must m ake a fresh determination

concerning whether

the requirements of T

enn. R. Civ. P.56 have been sati sfied. See Hunter v. Brown , 955 S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). W

e must consider th

e ev idence in the light most favorable to the

nonmoving party, and we must resolve all inf erences in the nonmoving party ’s favor. See Terry v. Niblack , 979 S.W.2d 583, 5 8 5 (Tenn. 1998); Robinson v. Omer , 952 S.W.2d at 42 6. Whe n revie wing the evidence, we

mus t deter mine first whether factu al disputes exist . If a factual dispute exi sts, we must then determine

whether the fact is material to the claim or defense upon which the summary judgment is predicated and

whether the dispute

d fact creates a

genuine issue for trial. See Byrd v. Hall , 847 S.W.2d at 214; Ruther ford v. Polar Tank Trailer, Inc. , 978 S.W.2d 102, 104 (Ten n. 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 t heir r easonably foreseeable

uses by members of th e public. See City of Winches ter 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 c

ondition was viewed a s a proprietary, a s opposed to a governmental, function, see Shepherd v. Cit y of Chattan ooga , 168 Tenn. 153, 155 , 76 S.W.2d 322, 323 ( 1934), the courts re peatedly held that local gove rnmental entities could be held liable f or the damages caused by the ir negligent failur e to maintain their streets and si

dewalks in reasona

bly safe condition. T

hus, the liability of local governmental entiti es for injuries occ

urring on sidewalks or

streets or in other public improvements was g overned by the

same principles thatgoverned the liabilit y of private individuals. See Johnson v. City of Jackson , 194 Tenn. 20, 22, 250 S.W.2d 1, 2 (1952) (holding t

hat t he tort liability of a municipality acting in its proprietary capacity is the same as the tort liability of an individual).

The Tennessee Gover

nmental Tort Lia

bility Act eliminat

ed the distinction between governmental and p roprietary functio ns, see Fretwell v. Chaffin , 652 S.W .2 d 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 governm ental entities could be subject to suits f or damages. See Hawks v. Cit y of Westmoreland

, 960 S.W.2d 10, 14 (Ten n. 1997) . Consistent with the earlier precedents, the Act authorized ci vil actions for damages against local governmental entities for the “defectiv e, unsafe, or da

ngerous condition of an y street, alley, sidewalk or highway” and for

the “dangerous or de

fective condition of

any publi c building, structure, dam, reser voir or other public im provement” owned a

nd controlled by a local governmen tal entity. See Tenn. Code Ann.§§ 2 9-20-203 (a), -204(a) (1980 & Supp. 1998). For these pu rposes, the terms “street” and “highway” includetraffic control de

vices installed by the

local governmental

entity. See Tenn. Code Ann. § 29-20-203(a).

Thesestatutes are directly applicable to the ca se at hand . The Airport Authority is a “governmental e

ntity” as defined in T

enn. Code Ann. § 29- 20-102(3)7 The 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 adopt

ed by the municipal

ity’s l ocal governi ng body and approved by the executive officer of the municipality. See Tenn. Code Ann. § 42-4-104(c) (1993).

8 Authoritative texts state

that airports andparking facilities, especially facilities charging a fee to park, are proprietaryactivities and tha t governmental en

tities may be liable

for negligence i

n their operation and maintenance. See 18A James Perkowitz-Solheim, et al., McQuillin Municipal Corp orations §§ 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 Appealshas held that a local governmental ent ity may be held liab

le for failing to

provide adequat

e lighting in an airpo

rt parking lot. See Slapin v. Los Angeles Int’l Airport , 135 Cal. Rptr. 296, 298 (App. Ct. 1976). -7- (Supp. 1998) because it is a n instrumentality of g

overnment create

d b y act of the General Assembly and the Me tropol itan Government of Na shville and Davidson County. See Tenn. Code Ann. §§ 42-4-101, -117 (1993 & Supp. 1998). 7 In addition, the parking lots at the airport, toget her with the traf

fic control devices

installed in

the parking lots, amount to s t reets, sidewalk s, and public improve

ments owned and controlled by the Airport Authority for the purpose o f Tenn. Code Ann. §§ 29-20- 203(a), -204(a). 8

IV.
We now turn to the pr

inciples governing lia

bility determinations

in premises liabilitycas es i nvolving local governme ntal entities. Because of their superi or knowledge

of the cond ition of the premises , owners and occup iers of property, including owners and occupie rs of public property , owe persons lawful ly on their propertythe duty of reasonable car e under all

the circumstances. See McCormick v. Waters , 594 S.W.2d 385 , 3 87 (Tenn. 1980); Jones v. Exxon C orp. , 940 S.W.2d 69, 71 (Tenn. Ct. App . 1996). This duty in cludes th e duty either to rem ove dangerous conditions on their premises or to warn persons abou

t dangerous conditions that the

owner knows or should kn ow about. See Blair v. Camp bell , 924 S.W.2d 75, 76 (Tenn. 1996); Eaton v. McLain , 891 S.W.2d 587, 593-94 (Tenn. 1994). It does not includethe duty to remove or to war n about conditions from

which no unreasonabl

e risk could be anticipated or conditions that the owner or occupier neither kn

ew about

nor could have reasonabl

y di scovered. See Rice v. Sabir , 979 S.W.2d 305,

309 (Tenn. 1998).

Premises lia

bi lity claims against l

ocal governmental e

ntities have four bas

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

where the injury occurred ; (2) proof that a dangerous or de

fective condition,

or in the

case of sidewalks and str

eets an unsafe condi

tion, caused the inju

ry; (3) proof that th

e governmental entity had “construc tive and/or actual notice

” of the condition; and (4) proof that the governmental en

tity breached its duty eit

her to remove or el

iminate the dangerous condition or to provide adequate warnings of the cond i tion’s existence. See Tenn. Code Ann.§§ 29-20-203(b), -20 4(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 owne

r’s d uty stems from its supe rior knowledge of th

e condition of the premises. The proof of actual or constructive notice may tak e two forms. Fir st, actual knowledge can be pr oved by demonstrating

that the owner or

occupier, or an agent of the owner

or occupier, wa

s responsible for ca

using or creating the conditi

on. Second, if the owner or occ upier, or their agent, did not

cause or create the condition, constructive notice can be proved by demons trating that the condition exis ted for a sufficiently

long length of time tha

t the owner or occu

pie r, or their

agent, in the exercise of reasonable care, shoul d 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 courthas applied these pr inc iples in premises lia

bility cases brought und er the Tennessee Gover

nmental Tort Lia

bility Act. See McCorkle v. County of Dyer , No. 02A0 1 -9701-CV-00020,

1998 WL 155437, at *2- 3 (Tenn. Ct. Ap p. Apr. 6, 1998) (Tenn. R. App. P. 11 ap

plication dismissed); Wilson v. City of L ebanon , No. 01A01- 9110-CV-00353, 1992 WL 279863, at*2 (Tenn. Ct. A pp. Oct. 14, 1992)

(No Tenn. R. App. P. 11 application filed).

V.

Itremains to

be decided whether

the Airport Author

ity and Republic

Parking

are entitled, as a matter of law, to a judgment dismissing Mr. Sears’ negligence claims against them. The y can prevail only if one of two circumst ances exist. Firs

t, they are entitled to a summary judgment if they establish conclus

ively that they have

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

ively negate an esse

ntial element of Mr. Sear s’ 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 21 5 n.5. In either ci rcumstance, they have demonstrated that th

ere is no need for a

trial.

Nei ther t he Airport Authority nor Republic Parking used their summary judgment mot ion to a ssert an affirma tive defense. Ra

ther, they were

essentially

asse rting that Mr. Sears would be unable to prove all the elements of h is cause o f action. As we will demonstrate, the Airport Authority and Republic Parkin g have not succeeded. Viewing the evi d ence in the light most f

avorable to Mr. S ears, there is substantial doubt that the facts require a judgment for eithe r the Airport Auth

ority or Republic Parking as a matter of law.

A.

O WNERSHIP AND C ONTROL OF THE P REMISES

There is no real dispute re garding the ownership and control of the short term parking lot at the airport.The Airport Authority owns and controls this parking l

ot. While undoubtedly Republic Pa rking has some control

o ve r the operation of th e parking lot, there is no

evidence that it exe

rcises exclusive co

ntrol over the parking lot or that it is not acting as the AirportAuthority’s agent with regard to the operation and maintenance of the

parking lot. Ther

e is likewise no proof

that Republic Parking is somehow independent ly responsible for insta

lling and maintaining th e traffic control device at issue in this case.

B.

T HE E XISTENCE OF A D ANGEROUS C ONDITION

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 neg

ligence cases, the jury is ordinarily left to decide whether a condition is dangerous when som e competent

evidence of hazard exi sts. See Helton v. Knox County , 922 S.W.2d 877, 882 (Tenn. 1996); Ogilvie v. Metropolitan Gov’t , No. 01A01-9709-CV -00466, 1998 W L 272793, at *2 (Tenn. Ct . App. May 29, 1998) (No Tenn . R. App. P . 1 1 application

filed); City of Knoxville v. Ferguson , 34 Tenn. App. 585, 590, 241 S.W.2d 612, 614 (1951). This re

cord containscompetent evidence from which a rea

sonable-10-

fact-finder

couldconclude that the tr affic control devi

ce at the exit to the

short term parking lot was dangerous or unsafe.

The very manner in whic

h Mr. Sears was

injured provides an in

dication of how dangerous the traffic control device can beto persons who are not riding in vehicles withroofs. The

armclosed directly on Mr. Sears because his motorcycle had no roof, rol l bar, or other similar protection. In addition, the fact that the Airport Authori t y and Republic Parking de cided to post cautionar

y sig ns d irected to pedestr ians, bicyclists, and motorcyclists pr ovides some evidence

that the operation of

the traffic controldevice might pose a da nger to persons on foot or riding motorcycle s or bicycles.

C.

K NOWLEDGE OF THE E XISTENCE OF THE C ONDITION

Both the Airport Author

ity and Re public Parking knew of the existence and

manner of operation of the t

raffic control de

vic e 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 thatthey understood how it was designed to operate and how it

was operating in

May 1994. The fac

t that they placed a w

arning sign on the stanchion cautioning m otorcyclists, bicyc

lists, and pedestria

ns not to pass throughthe device indicate s that they understood th at the device, even when operatingnormally, could pre sent a danger to persons who w ere not riding in vehicles.

D.

B REACH OF THE D UTY TO R EMOVE OR W ARN

Owners or occupiers of prop erty may disch arge their duty to kee p their premises safe for

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

remove or eliminate the da

ngerous condition, or

they may warn per

sons lawfully on the property of the exist

ence of the dangero

us condition. The pur

pose of the warning is to enable persons law fully on the premises

to avoid the dangerou s con dition. Removing the allegedly danger ous condition was not

an option in this case be

cause the traffic control de

vi ce wa s an integral part of the short term park

ing lot. Accordingly, the d

uty implicated in this case is the duty to war n.-11- Municipal corporat

ions, like other own ers or occupiers of property, have a duty to warn persons of dan gers on their

property. See Coln v. City of Savan nah , 966 S.W.2d at 39; accord Galati v. Lake H avasu City , 920 P.2d 11, 16 (A riz. Ct. App. 1996); Welsh v. Metropolitan Da de County , 366 So.2d 518, 521 (Fl a. Dist. Ct. A

pp. 1979); Schweizer v. City

of Maplewood, 784 S.W.2d 842, 843 (Mo. Ct. App. 1990); Robert s v. City of Grapevine , 923 S.W.2d 169, 171-72 (Tex. App.

1996); Smith v. Ac me Paving Co. , 558 P.2d 811, 814-1 5 (Wash. Ct. Ap p. 1976). When this

duty exists, questions arise conc erning the nature an

d extent of the war

ning that should

be required.

As a general matter

, local government

al entiti es need only use ordinary care when they provide

warnings of the exi stence of a dangero us condition. See Bannister

v. Town of Noble , 812 F.2d 1265, 1268 ( 10th Cir. 1987) ; Cooper v. City of F airhope , 83 So.2d 321, 323 (Ala. 19 55). The warning must be calculated to bring

the danger to the attention

of an ordinary prude nt person under th e circumstances. See Evridge

v. American Honda M

otor Co. , 685 S.W.2d 632, 636 -37 (Tenn. 1985) ( discussing the adequacy of

warnings in product l

iability cases); Trimble v. Irwin , 59 Tenn. App. 465, 473, 441 S.W.2d 818, 822 (1968). Once a c

ourt determines tha

t a duty to warn exist

s, itis 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 wa rnings given by the city of a dangerous conditi on should be left to determination by the triers of fact).

Courts and legal commenta tors have written e

xtensively on the conte

nt and formats appropriate

to warnings, and w

e 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 plac ement, its content,

the use of

color and size of print, and the employment of sym bols used to draw attention to th e nature and extent o

f the adjunctive

danger. See e.g . , McMah on v. Bunn-O-Ma tic Corp. , 150 F.3d 651, 656 (7th Cir. 1998) (contai

ning a general discussion on warnings); Salvati v. Departm ent of State Highways , 405 N.W.2d 856,859, 862-63 (Mich. 1 982); David Polin, Failure to Warn as Proximate

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

Mr. Sears filed a det

ailed affidavit

opposing the motion for summary judgment and included with the af

fidavit a videotape made two

days after the

accident showing-12-

the route he used to enter and leave the parking lo t. He states in his affida vit that on the d ay h e went to the airpor t, there was a la

rge blue sign at the e

ntrance to the parking lot containing inform ation about

the price to park. He also states tha t as he entered the parking lot, he di d not see any sign

warning motorcycl

ists not to park in the short term parking

lot or cautioning them ab

out the danger posed by t

he operation of the traffic contr

ol 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 concl

udes that if signs we

re present, their size, locat ion, and color detracted from the ir pro minence and visibility to persons entering a

nd leaving the parking lot.

Mr. Sears also stat es that he was unaware of other exits from the short term parking lot that would not have requir ed him to pass through a trafficcontrol device similarto the one that injured him. He added tha t there were no si

gns in theparking lot directing motorcycl ists to these exits. He also stated that he di

d not see the caution sign on the

stanchion as he left

the parking lot “beca

use 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 approxim

ate height . . .”

The videotape attached to Mr. Sears’ affi davit strongly co rroborates Mr. Sears’ test imony.

After reviewing the evide

nce both suppo rting an d opposing the summary judgment motions, we conclude that reasonable minds could diff er on whether the Airport Authority and Republi

c Parking gave adeq

uate warning that t

he short-term parking exit gate arm's operation posed a haz ard to motorcyclists . Accordingly, the Airport Authority and

Republic Parking ha

ve not affirmative

ly negated this essential element of Mr. Sears’ case.

E.

T HE C AUSE OF M R . S EARS ’ I NJURIES

Both the Airport Author

ity and Republic Par

king argued, and the tr ial court apparently

concluded, that Mr. Sears’ injuries were caused not by the traf fic control device but rather by his in attentiveness. A s R epublic Parking puts it, Mr. Sears “adm i tted during his deposition tha t he was not paying att

ention while travel

ing throughthe controlled parki ng area.” The A

irport Authority add

s that the undisputed facts demonstra te that Mr. Sear s “could have seen the

yellow protective post and-13-

block from which the

arm extended,but he did not see them b ecause he was wa

tching the arm.”

No neglige nce clai m can succeed unles s the plaintiff can p rove that the defendant’s conduct was a cause -in-fact of the plaintiff's loss. See Waste Mgmt., Inc. of Tenn. v. South Cent. Be ll Tel. Co. , No. 01A01-9504- CV-00182, 1997 WL 71811, at*4 (Tenn. Ct. App. Feb. 21, 1997) (No Tenn

. R. App. P. 11 ap plication filed). The plaintiff need not prove that the def endant’s conduct wa

s the sole cause-in-fact of

the loss because a single inju ry may be the result

of more than on

e c ause-in-fact. See Burgessv. Harley , 9 34 S.W.2d at 68. To be the ca

use-in-fact of an

injury, the negligent conduct must have been a substantial fa cto r in bringing about the i njury. See Boling v. Tennesse

e State Bank, 890 S.W.2d 32, 36 (Tenn. 1994). Cause-in-fact issues are ordinarily

questions of fact fo r the jury. See Eaton v. McLain , 891 S.W.2d at 590.

Persons operating moving vehicles, including m otorcycles, are required to observethose things which, i n 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. A

pp. 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. Ten nes see Cent. Ry. Co. , 36 Tenn. App. 1 92, 201, 253 S.W.2d 202, 206 (1 952). Mr. Sear s' statements in his deposition

and affidavit do not necessarily lead to the c onclusion that he was inattentive

to visible hazards in his path. He stated that he watched the armrise and descend when the aut

omobile in front of

him leftthe parking lot, and he added that he could not see the stanc

hion of the traffic

control device whe

re thecaution sign was affixed because the a utomobil es ahead of him block ed his view until the l

ast automobile passed the traffic control device.

Mr. Sears watched th

e 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 br ing his motorcycle to almos t a complete stop. He proceeded through the traffic cont

r ol device only after he believed that the arm had ascended to its maxim umheight. Based on this evidence, we cannot say, either

as a find i ng of fact or conclus ion of law, that Mr. Sears was ina ttentive or that he would not have been injured had he been paying more attention to the stanchion as opposed to t he moving arm on the tr affic control devi

ce. If anything,

a reasonable-14-

finder-o f-fa ctmight be more apt to c onclude 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 sig

n on persons leaving the

parking lot is diluted b y the fact that i t is largely obscur ed by the yellow pos t in front of it. A reasonable

fact-finder coul

d conclude that the pa

rtially obscured sign

woul d fai l to provideany meaningful warning, even to persons looking in the sign's general direction.

Causation

questions are fact

-sensitive and requi

re that t he evidence be reviewed in light of logic and common sense. See Burgess v. Harley , 934 S.W.2d at 68-69. It is not o ur prerogative at t his stage of the proce

eding and in light of this record to conclude

that Mr. Sears’ conduct was the sole cause-in-fact of

his injuries. The evidence concerni

ng causation

does not entitle the A

irport Authority or Republic Parking to a judgment as a matt er of law. What part, if any, Mr. Sears' inattenti veness 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 decisi on to g rant the Airport A uthority and Republi c Pa rking summary judgmen ts on its conclusion that the operation and condition of the traffic co

ntrol device was open and obvious. The trial court arrived atthis conclusion before the Tennessee Supreme Court determined that owners and occupiers of premises were not relieved o f th eir duty to remove or to warn of a dangerous condition simply becau se 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 co mparative fault a

nalysis, we do

ubt that the trial court would have dismissed Mr. Sea

rs’ complaint solely

on the basis that the opera tion and condition of the traf

fic control device was open and obvious.

VII.-15- We vacate th e summary judgment a nd remand the case t

o the trial court for further proceedings consiste

nt with this opinion. We also

tax the costs of this appeal in equal proportions to the Metropolitan Nashville Airport Authori ty and R epublic Parking Systems, Inc. fo r which execution, if n ecessary, may issue.

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

_________________________________ HENRY F. TODD, PRESIDING JUDGE, M.S.

_________________________________ WALTER W. BUSSART, SPECIAL JUDGE