Day on Torts
In Brown v. Mercer-Defriese, No. E2015-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), plaintiff was touring a home that she was considering renting when she tripped over a threshold/step. The threshold joined two rooms in the house, and the elevation difference from one floor to the other was three inches. The flooring in one room was tile, while the adjoining room was hardwood and the threshold itself was wood, but the evidence suggested that the flooring was all very similar in color.
Plaintiff had already traversed the threshold once, but testified that she did not notice the elevation change at that time, and that when she was traversing it a second time she did not notice the threshold and tripped, suffering serious injuries. Plaintiff brought this premises liability action, alleging that this step constituted an unreasonably dangerous condition. Plaintiff stressed the similarity in color between the two adjoining floors, and noted that the fall occurred when it was getting darker outside and thus more difficult to see. Plaintiff’s expert testified that the step in question was a “tripping hazard” due to its height and the fact that the entire area was essentially the same color. He further testified that the Consumer Product Safety Commission “has determined that stairs, ramps and landings are among the most hazardous consumer products in the United States, and classified a step with a riser less than 6.25 inches high as high risk.” (internal quotations omitted).
In response, the defendants asserted that the threshold was open and obvious and that it did not violate the relevant building code. Defendants also alleged that the threshold was a stair, which is a “common feature in homes and…not inherently dangerous[.]” (citation omitted). Defendants called two experts to testify, and both stressed that the threshold did not violate building code, but one admitted that he believed the step to be a “trip hazard.”
At the close of the proof, the trial court granted defendants’ motion for a directed verdict, finding that “it was not reasonably foreseeable that plaintiff would trip over the step, that the step was open and obvious, and that defendants did not owe plaintiff a duty to warn her of the condition of the step.” The Court of Appeals vacated this ruling, finding that the plaintiff had presented enough evidence to create a genuine issue of fact regarding defendants’ negligence.
In reaching its conclusion, the Court pointed to the photographs in evidence which showed that the tile floor, threshold, and wood floor were all brown in color, “suggesting no clear visual contrast between the lower floor and threshold that is elevated three inches higher.” The Court further relied on plaintiff’s testimony that, while the photographs showed the floor in well lit conditions, she fell when it was getting dark, making the contrast even more difficult to see. As to defendants’ argument that stairs are common elements in homes and thus not inherently dangerous, the Court pointed out that Tennessee law states that the existence of a stair or stairs alone will not prove a dangerous condition; instead, a plaintiff in a stair case “must submit legally sufficient evidence as to the duty element to establish the essential element that a duty is owed.” (internal citation and quotation omitted). Here, the Court held that plaintiff met her burden of presenting evidence regarding the duty element. The Court found that “the evidence presented, including testimony of experts on both sides that the step was a ‘trip hazard,’ Plaintiff’s testimony, the unusually short size of the single step between two interior rooms which [plaintiff’s expert] classified as dangerous and ‘high-risk,’ and the photographs of the accident scene—establish that reasonable minds could differ on the question of Defendants’ negligence, and thus, a jury question is presented.”
This was clearly the correct result in this case. Plaintiff presented more than enough evidence to get to the jury in this case. This was not a regular step, clearly visible when approached. This was a three-inch difference in flooring that looked similar in color, which even the opposing expert admitted was a trip hazard. The Court of Appeals was right to vacate the directed verdict here.
Does this mean plaintiff will win at trial? Of course not. A jury will still be asked to determine the fault, if any, of the defendant and the comparative fault, if any, of the plaintiff. Exactly how this will shake out cannot be determined from reading the opinion.