Day on Torts
In Matherne v. West, No. E2015-02061-COA-R3-CV (Tenn. Ct. App. Oct. 28, 2016), the Tennessee Court of Appeals overturned summary judgment in a premises liability case notwithstanding a claimed “open and obvious” danger.
Plaintiff’s family was renting a cabin in the mountains from defendants. The pictures online showed that the cabin had two parking spaces, one being elevated several feet along a slope from the other. A safety rail went around a portion of the upper parking space but did not cover the entire drop-off area. On plaintiff’s second day at the cabin, she was stepping out of her vehicle after buckling her daughter into a the car when her first foot landed on the concrete but her second foot did not, causing her to fall onto the lower parking area and injure her arm.
Plaintiff filed suit, and defendants moved for summary judgment, which the trial court granted. In its findings of fact, the trial court noted that plaintiff had seen the two separate parking levels and knew about them; that she saw that the rail covered only a portion of the upper space; that she had told the children in her family not to play on the upper parking space, as they could fall and be injured, and had asked her husband to park on that space to prevent the children from playing there; that it was light when she fell; that nothing prevented her from having someone back the car off the parking space before entering it; that the parked car was approximately three to three and a half feet from the edge of the drop-off; and that there was sufficient room for her to get into and out of the car without falling. The trial court concluded that “plaintiff had absolute and actual knowledge of the potentially dangerous condition,” that the condition was “open and obvious,” and that plaintiff “was at least 50% at fault for her fall and any injuries allegedly sustained therefrom.”
On appeal, the Court overturned the trial court, reversing the grant of summary judgment. The Court quoted extensively from several Supreme Court decisions, noting that “an owner…of premises has a duty to exercise reasonable care with regard to…business invitees on the premises,” and that a Supreme Court decision “held that a duty may exist even where the injury-causing condition is alleged to be ‘open and obvious’ to the plaintiff.” (quoting Rice v. Sabir, 979 S.W.2d 305 (Tenn. 1998)). In Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), the Supreme Court stated:
That a danger to the plaintiff was ‘open and obvious does not, ipso facto, relieve a defendant of a duty of care. …[I]f the foreseeability and gravity of harm posed from a defendant’s conduct, even if ‘open and obvious,’ outweighed the burden on the defendant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care.
To succeed in a premises liability case, “the plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the defendant’s power more probably than not would have prevented the injury.” (quoting Rice).
Here, the Court found that it was undisputed that plaintiff knew about and appreciated the risk of falling. Defendants argued that plaintiff had a responsibility to look after her own safety once she knew of the risk, but the Court noted that plaintiff’s “knowledge of the risk does not end our inquiry.” Under Tennessee law as outlined above, the Court analyzed “whether the reasonably foreseeable probability and gravity of harm from a possible fall while using the upper parking level as intended outweighed the burden upon defendants to engage in alternative conduct which would have prevented a risk of harm to [plaintiff].” Ultimately, the Court here concluded:
[T]he danger of falling off this elevated parking level was obvious… We conclude, nevertheless, that Defendants owed a duty of care. In a way, Defendant’s protestations that [plaintiff] knew of the obvious risk argues too much. This is tantamount to conceding that there was an obvious danger to guests on this property because the railing did not extend to the end of the elevated parking area. Tennessee case law does not automatically insulate a premises owner from a duty of care simply because the danger was open and obvious.
The Court held that plaintiff had put forth enough evidence that defendants could have done more to protect against this risk to defeat the motion for summary judgment, and that there were genuine issues of material fact regarding whether defendants breached their duty of care and whether plaintiff was comparatively at fault. Summary judgment was accordingly reversed.
The Court got this case right. Under defendants’ theory, a landowner could essentially decide not to make his property safe if he felt that the danger was open and obvious enough, relying instead on being completely insulated from liability by the “open and obvious” doctrine. While the obviousness of a danger may play into the court’s ultimate analysis, it should not serve as an automatic bar to recovery.