No Liability Where Customer Walked Backwards over an Obvious Curb

         In Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015) we have a rather typical trip and fall case – one similar to that Tennessee personal injury lawyers  are called about quite frequently.

          Ms. Holland  sued defendant property owner for injuries incurred when she fell over a curb in a parking lot. The parking lot in question was used for two businesses, a grocery store and a bank, and the two properties were divided by a continuous curb. This curb was unmarked and had weeds growing around it, but was clearly visible. Its purpose was to keep cars parked at the grocery store from driving into the drive-through area of the bank. Plaintiff and her husband parked perpendicular to the curb at the edge of the grocery store parking lot. After shopping in the grocery store, plaintiff was stepping backward while opening the passenger door and tripped on the curb, falling to the ground.

            Defendant filed a motion for summary judgment, which the trial court granted. The trial court stated that defendant “had no duty to warn plaintiff of the curb when the curb at issue was open and obvious and when it was not reasonably foreseeable that plaintiff would walk backward without looking and trip and fall over the curb.” Further, the trial court found that a reasonable jury would have to conclude that plaintiff was 50 percent or more at fault for her injuries. The Court of Appeals affirmed judgment for the defendant.

            In its analysis, the Court of Appeals quoted previous case law holding that a property owner may have a duty “even where the injury-causing condition is alleged to be open and obvious to the plaintiff…the duty must be analyzed with regard to foreseeability and gravity of harm….” Holland (quoting Green v. Roberts, 398 S.W.3d 172, 177 (Tenn. Ct. App. 2012)). Here, the Court found that it was not reasonably foreseeable that a patron would walk backwards over the curb in question, and that defendant therefore did not have a duty to warn plaintiff. The Court noted that plaintiff admitted “that she was walking backward, that the curb was visible, and that she would have noticed it if she had been looking for it or if someone had drawn her attention to it.” The Court further pointed out that the curb served a purpose, separating grocery traffic from the bank drive-through, and was not simply a “random, superfluous” structure. Because the Court held that “Defendant did not have a duty to warn Plaintiff of the curb and because Plaintiff’s mode of travel, namely walking backward, was the cause of her injury,” the Court of Appeals did not address the issue of comparative fault.

            This case is a reminder that not all slip and falls and trip and falls on a business’s premises will result in liability for the property or business owner. If the injured person’s actions could not have been expected or foreseen, making a case for premises liability may be a difficult task.  Most consumers think just the opposite – that if you fall on someone else property any injuries and damages are the responsibility of the property owner and occupier – but that understanding is incorrect.  The devil – and the case – is in the details.