Articles Posted in Premises Liability

Where a plaintiff tripped on a crack in a parking lot that was 54 feet long and resulted in a height deviation of no more than 1.5 inches, the property owner owed no duty to plaintiff and summary judgment in a premises liability case was affirmed.

In Shaw v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2018-01157-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), plaintiff was a school bus driver who was required to attend a training session at a local school. Plaintiff parked in a large parking lot at the school, and as she was walking to board a shuttle bus, she tripped on a crack in the pavement. The crack was 54 inches long and “amounted to a deviation of up to one and a half inches.”

Plaintiff filed a premises liability claim, alleging that “the parking lot existed in a state of disrepair and had been in such a state for a sufficient length of time that Metro knew or should have known of its dangerous condition.” Defendant filed a motion for summary judgment, and plaintiff filed a motion to amend and add allegations of negligence per se. The trial court granted summary judgment, and on a first appeal, the Court of Appeals ruled that the trial court improperly “neither ruled upon the pending motion to amend nor undertook analysis…in order to determine whether the sought amendment should have been granted pursuant to Tennessee Rule of Civil Procedure 15.01.” The case was accordingly remanded. On remand, the trial court granted the motion to amend and add negligence per se claims, but then again granted summary judgment to defendant on all claims. The Court of Appeals affirmed.

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Where a plaintiff claiming that he was sexually assaulted in a locker room failed to present any evidence that the “health club knew or should have known of prior assaults by the assailant or anyone else,” summary judgment for defendant health club was affirmed.

In Boswell v. Young Men’s Christian Association of Middle Tennessee, No. M2018-00180-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), plaintiff claimed that he was sexually assaulted by Jack Dabney in the locker room at his local YMCA three times. Accordingly to plaintiff, Dabney first groped him in July 2015, at which time he left the facility and told no one. The second incident occurred one week later, at which time plaintiff reported the incident to the membership greeter. Plaintiff refused, however, to review video footage to identify the assailant, and instead wrote on a comment card that the YMCA should “put somebody inside the shower area to protect people from being sexually assaulted.” The third incident occurred seven months later. At that time, plaintiff told the YMCA executive director, and a male staff member went into the locker room with plaintiff and Dabney was identified. An investigation began, but plaintiff failed to return a phone message or email sent from the director regarding the matter. Although plaintiff did not supply additional information, Dabney’s membership was eventually revoked.

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Where plaintiff failed to present any proof that the stairs owned by defendant were defective, the trial court’s finding for defendant was affirmed.

In James v. City of Dyersburg, No. W2018-00614-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2019), plaintiff filed a GTLA premises liability suit after falling on stairs outside of a city building. In her complaint, plaintiff alleged that she fell due to the city’s negligence in “failing to provide a handrail on the steps, and in failing to correct a defect…being a separation between step and a metal strip[.]” At trial, plaintiff testified that she “stepped down from the top step with her right foot onto the second-step, but as she tried to step down with her left foot, the two-inch heel of her left shoe got caught on the metal strip on the stairs[.]” She also testified that she was unable to catch herself due to the absence of a handrail. Despite her allegation that the stairs were defective, plaintiff offered “no measurements…and no proof…of any code violations or applicable code requirements for the steps, stairway, or handrails,” nor did she present expert testimony.

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Where a plaintiff who fell in a grocery store presented no evidence in her premises liability case beyond the fact that there was a pallet in the aisle over which she tripped, the Court of Appeals affirmed summary judgment for defendant grocery store.

In Hunter v. Kroger Limited Partnership, No. W2017-01789-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018), plaintiff was shopping in defendant grocery store when she tripped on a pallet and fell. Plaintiff had been bent over in a freezer searching for an item. As she straightened up, she stepped backwards 3-4 steps to allow another customer to pass, and in doing so she “tripped on a wooden pallet that was left on the floor in the center of the aisle.” Evidence showed that the pallet was wooden and had been used for stocking the shelves, and that nothing was blocking plaintiff’s view of the pallet.

Plaintiff filed this premises liability action asserting that defendant “owed her an affirmative duty of care to protect her from the dangerous condition created by the pallet.” The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.

In its memorandum supporting the motion for summary judgment, defendant argued that the pallet was not a dangerous condition and that plaintiff’s “allegation that this pallet was a dangerous condition is not based on anything other than the fact that she tripped.” Defendant filed a statement of undisputed facts, which included the facts that plaintiff was walking backwards and had taken around 4 steps before she hit the pallet and fell, and that there was nothing blocking the pallet from view. Plaintiff admitted all of these facts and “proffered no additional material facts, and submitted no additional evidence.” On appeal, this lack of evidence proved fatal to plaintiff’s case.

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A premises owner’s duty generally does not include the duty to protect “from criminal acts occurring off [the] defendant premises owner’s property.” In Collier v. Legends Park LP, No. W2017-02313-COA-R3-CV (Tenn. Ct. App. Oct. 3, 2018), plaintiff was a resident at defendant’s apartment building. Plaintiff was sitting in his car, which was parked on a public street, with a female companion. Another car pulled next to plaintiff’s car, and the female companion got into that car. When plaintiff then exited the vehicle, he was approached from behind by a second female holding a gun and demanding money. Plaintiff had several thousand dollars on him, but told the robber that the money was in his car. Plaintiff was eventually shot in both legs, and the robber got into the car with the other two people and drove away.

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Where there were facts in dispute about whether a warehouse warned its workers about independent contractors working and using extension cords in the facility, summary judgment in a premises liability case was inappropriate.

In Miranda v. CSC Sugar, LLC, No. W2017-01986-COA-R3-CV (Tenn. Ct. App. July 5, 2018), plaintiff was a construction worker who was working at defendant’s warehouse as a contractor. Plaintiff and his brother were working on scaffolding and using an electric screw gun, which he plugged in with a one-hundred-foot extension cord to an outlet in a different part of the facility. The cord ran across a doorway at the warehouse, and on the third day that plaintiff was working, one of defendant’s employees drove a forklift in reverse across the cord, which entangled the cord and pulled on the scaffolding, causing plaintiff to fall and injure himself.

Plaintiff filed this premises liability suit against defendant, and the trial court granted defendant’s motion for summary judgment. The trial court ruled that defendant “had no duty to warn [plaintiff] of the allegedly dangerous condition which [plaintiff] or his co-employee created and knew about.” The Court of Appeals reversed this ruling.

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Where a school custodian had placed wet floor signs on a small area of one side of a hallway but mopped the entire hallway, the trial court’s finding that the school was liable to a teacher who slipped and fell outside her classroom was affirmed on appeal.

In Robertson v. Clarksville-Montgomery County School System, No. M2017-02492-COA-R3-CV (Tenn. Ct. App. June 28, 2018), plaintiff was a teacher at defendant school. Plaintiff filed suit after she injured herself when she left her classroom to attend a staff meeting and almost immediately slipped on the wet floor in the hall. According to plaintiff, there were two wet floor signs on the opposite side of the hallway in close proximity to one another, but she did not see them before falling. Plaintiff further asserted that even if she had seen them, she would have believed that they indicated that the area between the signs was wet, not the entire hallway.

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Evidence of an accident or injury alone is not enough to withstand a motion for summary judgment in a premises liability case.

In Jobe v. Goodwill Industries of Middle Tennessee, Inc., No. M2017-02299-COA-R3-CV (Tenn. Ct. App. June 4, 2018), plaintiff was a shopper at a Goodwill store. When she “attempted to sit in a plastic chair that was displayed for sale,” the chair collapsed, causing plaintiff to fall and injure herself. Plaintiff filed this premises liability action, and defendant filed a motion for summary judgment. The trial court granted summary judgment to defendant, and the Court of Appeals affirmed.

In a premises liability case, a plaintiff must be able to prove the elements of a negligence claim, and also that “the condition was caused or created by the owner, operator, or agent or that the owner or operator had actual or constructive notice that the condition existed prior to the accident.” (internal citation omitted). While business owners must keep their properties reasonably safe, they are “not responsible for removing or warning against conditions from which no unreasonable risk was to be anticipated.” (internal citation omitted).

In support of its motion for summary judgment, defendant submitted deposition testimony from two employees who stated that donated items are “visually inspected and examined by a donation attendant when received and inspected again by a processing employee before merchandise is priced and placed on the sales floor.” One employee stated that while they do not sit on furniture to inspect it, they move it around and check its sturdiness. Further, defendant cited part of plaintiff’s deposition testimony wherein she answered that there was nothing “apparent or obvious to [her] in looking at [the chair] while it was still intact that told you it might not be safe to sit on.”

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Where a defendant has changed its story regarding relevant facts, leaving material facts in dispute, summary judgment is inappropriate.

In Schacklett v. Rose, No. M2017-01650-COA-R3-CV (Tenn. Ct. App. May 2, 2018), plaintiff filed a premises liability claim after falling at defendants’ home. Plaintiff was a catering employee who had entered the home in the daylight using outdoor stairs that led to the kitchen. At the end of the evening, she left by the same stairs, and she fell “through a break in the railing,” landing on concrete. According to plaintiff, “there were no house lights and the motion lights on the steps…were not operating,” and “the entire area was dark.”

When defendant homeowners answered the complaint, they denied that there were no lights and that motion sensor lights were in place. They also “denied that the entire area was dark and therefore dangerous.” Later, in response to requests for admissions, defendants “stated that the outside lighting was working on the night of the accident.” They further asserted that instead of having motion sensor lights that were not working, they had “overrode the timer by placing the lights ‘all on’ for the party.” When defendants filed a motion for summary judgment, however, they asserted that “the exterior lights were off when [plaintiff] fell, and [plaintiff] was negligent in failing to turn the lights on before proceeding down the stairs.”

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Where a drainage cut in a concrete platform was visible but not open and obvious, a finding that the plaintiff was only twenty percent at fault for his fall was affirmed on appeal.

In Osborne v. The Metropolitan Government of Nashville and Davidson County, No. M2017-01090-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff fell while visiting a city-owned facility for trash that was too large for regular trash trucks. The center had two levels, with the upper level being about five feet off the ground. On the edge of the upper platform there was a 26-inch-wide concrete barrier, and this barrier had 15-inch-long drainage cuts. There were signs stating “Please Use Care When You Unload Items” and telling children to stay in the vehicle, but there were no signs about the drainage cuts, no verbal warnings, and no markings or paint to draw attention to the cuts. Plaintiff had been to this center many times, but he had never been directed to this particular area. When he got out of his truck, he stepped onto the barrier and sidestepped toward the back of his truck without looking down at the barrier. As he was walking, not holding onto his truck, he stepped into the drainage cut and fell five feet, injuring his arm.

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