Day on Torts
Where a trial court granted defendant’s motion for summary judgment in a Tennessee premises liability case without considering plaintiff’s motion to amend her complaint, summary judgment was vacated.
In Shaw v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2016-02455-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2017), plaintiff was a school bus driver employed by defendant. While attending a mandatory training program in 2013, plaintiff had to park her bus then walk across a parking lot owned and maintained by defendant to get to a shuttle. While walking, plaintiff “tripped on a buckled and cracked portion of the pavement,” which was “purportedly the result of flooding that had occurred in Nashville in 2010.”
Plaintiff filed a premises liability complaint, alleging that defendant “breached its duty of care owed to her by failing to repair or warn her of this dangerous condition,” and asserting that “the parking lot existed in a state of disrepair and had been in such a state for a sufficient length of time that [defendant] knew or should have known of its dangerous condition.” Defendant filed a motion for summary judgment, and plaintiff thereafter filed a motion to amend her complaint and add allegations that defendant “had violated various applicable building codes by failing to properly maintain the lot at issue” and thus committed negligence per se. Plaintiff also filed an affidavit from an engineering expert regarding the alleged building code violations.
Without addressing the motion to amend,* the trial court granted defendant’s motion for summary judgment. The trial court noted that “Tennessee cases that have refused to require property owners to warn of or repair minor aberrations in surface conditions are still good law.” (internal citations omitted). According to the trial court, the crack at issue here was 54 inches long and contained deviations in surface level of up to 1.5 inches. The trial court found that there was no duty, stating:
[A] property owner is not required to maintain a parking lot in the same condition as a billiard table; a parking lot does not have to be absolutely smooth. It will have some uneven surfaces and potentially dangerous areas, but the key question is whether the irregular surface at issue was unreasonably dangerous….The defect in question was open and obvious and the Plaintiff could have become aware of it through normal exercise of her senses as it was broad daylight and the lengthy crack was clearly visible. …The foreseeable risk of harm caused by the minor aberration in the parking lot due to a slight elevation change and the obviousness of the defect in the form of a fifty-four inch crack does not outweigh the obvious nature of the aberration.
On appeal, the Court did not address the trial court’s actual findings, but instead focused on its failure to address the motion to amend the complaint. The Court looked at other Tennessee cases, including a Tennessee Supreme Court case where a lower court failed to analyze a motion to amend before granting summary judgment. In that case, the Tennessee Supreme Court stated:
[T]he trial court must give the proponent of a motion to amend a full chance to be heard on the motion, must consider the motion in light of the amendment policy embodied in T.R.C.P. 15.01, that amendments must be freely allowed; and in the event the motion to amend is denied, the trial court must give a reasoned explanation for its action.
(quoting Henderson v. Bush Bros. & Co., 868 S.W.2d 236 (Tenn. 1993)).
Here, the Court ruled that “the trial court similarly failed to properly exercise its discretion” regarding the motion to amend, having “neither ruled upon the pending motion nor undertook analysis of the…applicable factors in order to determine whether the sought amendment should have been granted.” Accordingly, the Court found that summary judgment was “improperly granted,” and it vacated summary judgment and remanded for consideration of the motion to amend.
If you are involved in litigation with both a pending summary judgment motion and motion to amend, this is a good case to keep in your arsenal when arguing that the motion to amend should be considered first. It could also be helpful on appeal to a plaintiff who loses a summary judgment motion while a motion to amend is pending and unheard.
* It is unclear from the appellate opinion whether the fact that plaintiff did not move to amend to assert the new theory for over two-and-one-half years after filing suit had any impact on the trial court’s decision not to consider the motion to amend.