Curb Cut for Wheelchair Ramp Held Not To Be “Dangerous Condition”

In Steele v. Primehealth Med. Center, P.C., No. W2015-00056-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2015), the  Tennessee Court of Appeals affirmed summary judgment for defendant in a premises liability case, “concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk [at issue] was unreasonably dangerous.”

Plaintiff was an office supply store delivery person, and he was making his first delivery to defendants’ building. The building was owned by one defendant and occupied by another defendant, a medical center. In front of the entrance, the sidewalk had a curb-cut for a wheelchair ramp. One side of the cut sloped down to the incline, but the other side did not slope and instead had a “single step riser approximately 5 inches high.” The ramp, the lower landing, and the curb cut were lighter in color than the surrounding concrete sidewalk, but there were no particular markings. While plaintiff was pulling his dolly down the sidewalk to make a delivery and “looking straight ahead toward the entrance as he walked,” he stepped off the single step riser and broke his leg.

Plaintiff brought this premises liability action, alleging that defendants “fail[ed] to either make the condition safe or warn others of the dangerous condition by appropriate warning signs.” Defendants filed a motion for summary judgment supported primarily by expert testimony. Defendant’s expert stated that the sidewalk in question met all building codes, was inspected and approved by city officials, and that it was “similar in detail to figures shown in the 1999 North Carolina Accessibility Code.” Further, defendant building owner testified that there had been no other incidents between the 2001 construction of the building and sidewalk and this litigation.

In response to the summary judgment motion, plaintiff cited his own testimony that there was no “coloring” or “yellow mark” to indicate the step down, as well as his testimony regarding the circumstances of his fall. Plaintiff also “referenced photographs that were attached to [defendants’ expert’s] report and asserted that they depicted a dangerous condition. Plaintiff’s response to the motion also included an expert report, but that expert was excluded by the trial court because plaintiff failed to properly disclose him in accordance with to the scheduling order.

Based on the evidence presented, the trial court granted summary judgment to defendants, concluding that “the evidence presented by the plaintiffs is insufficient to prove that a dangerous condition existed on the premises or that the defendants otherwise breached a duty owed to the plaintiffs.” The trial court went on to hold that “without the testimony of an expert that the curb-cut on the sidewalk ramp constituted a dangerous condition that there could be no issues of material fact.”

On appeal, the Court first took up the trial court’s ruling that plaintiffs were required to have an expert witness, rejecting and overturning this holding. The Court of Appeals noted that there was no “general requirement, established by a court or by the legislature, that expert testimony must be presented in order to prove the existence of a dangerous condition in a premises liability case.” Instead, the Court pointed out several cases where the issue of whether a condition is unreasonably dangerous has been left to the purview of the jury. According to the Court, “[t]he mere availability of expert proof does not give rise to a corresponding obligation that it be used.” (internal citation and quotation omitted). Thus, the Court held that “expert testimony was not a prerequisite to establishing that the sidewalk or wheelchair ramp was unreasonably dangerous.”

This finding, however, did not end the analysis, as the trial court also held that plaintiffs’ proof was insufficient to show that a dangerous condition existed. In its analysis, the Court looked to several other Tennessee cases wherein summary judgment was granted to defendants when features typically found in parking lots were alleged to be dangerous conditions—i.e., four-inch step downs, a curb separating a dirt embankment from a driveway, a curb separating opposing parking spaces. In regards to this particular case, the Court pointed to the expert testimony that the sidewalk met all code requirements and that there had been no other incidents, as well as the fact that the sidewalk was inspected by the City and that plaintiff had testified that “a little bit of paint would have made a difference and solved all the problems.” Based on all of this, the Court held that defendants met their burden “by demonstrating that Plaintiffs’ evidence at the summary judgment stage was insufficient to establish their claim for negligence.”

Looking to the evidence plaintiffs submitted in opposition to summary judgment, the Court said that “Plaintiffs did not introduce any new evidence,” but instead pointed to photographs already in evidence and plaintiff’s testimony that “the sidewalk was straight and then all of a sudden it dropped.” Plaintiffs further relied on plaintiff’s own testimony that “the location should have been marked with paint, a sign, or some type of warning.” The Court found that “[t]he paucity of evidence in this case would require a fact finder to speculate in order to find that the condition of the sidewalk and wheelchair ramp was dangerous or defective.” The Court stated:

Given Defendants’ evidence that the curb complied with building codes and that no other incidents had occurred at the curb in the eleven years since its construction, Plaintiffs failed to create a genuine issue of material fact by simply pointing to the photographs of the location and the testimony of [plaintiff]. While the facts demonstrate an unfortunate accident occurred, they do not demonstrate that a dangerous or defective condition existed on Defendants’ premises such that they had a duty to remove or repair the condition or warn [plaintiff] of its existence.

This case was an uphill battle from the beginning for plaintiffs. As the Court pointed out, there are many Tennessee cases finding structures traditionally found in parking lots to not be dangerous conditions. The interesting question here, though, is what evidence plaintiff could have possibly put forth to overcome summary judgment. While the Court said it was overturning the ruling that expert testimony was required to create a genuine issue of material fact, it seems that an opposing expert may have been plaintiffs’ only way to survive summary judgment here. If plaintiff’s own testimony regarding the sidewalk was not enough to create a fact issue, an expert was likely plaintiffs’ only hope to get past the summary judgment stage, so while an expert was not a technical legal requirement it was implicitly required based on the Court’s ultimate ruling.