Articles Posted in Premises Liability

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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A door that opened into a lobby area and had no warning signs has been held to not be a dangerous condition under certain circumstances.

In Wimmer v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2017-00352-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2018), plaintiff had just finished a doctor’s appointment and was waiting for a van from her assisted living facility to pick her up. So that she could see the van approaching, she was standing just inside the building near the glass sliding entry doors, but she was not in the vestibule area between two sets of sliding doors. While she was waiting, a man in scrubs opened a door from a fire stairwell that opened into the lobby, and the door hit plaintiff, knocking her over and injuring her. The door was a “wooden door with a black metal frame surrounded by red brick.” Plaintiff testified that she “did not see the door until after she was hit,” and that she “didn’t even realize there was a door at that time because I wasn’t paying any attention to the fact that there might be a door there.” The door did not have any warning that it opened into the lobby, and it did not have a window panel, so people coming through the door could not see whether there was anyone on the other side.

At trial, both sides presented expert testimony. When asked whether the door was a dangerous condition, plaintiff’s expert testified that “as you learn more about what occurred, you can see why things could become hazardous, if certain sets of circumstances were to prevail…” He also testified that it would have been appropriate for the door to have a warning, and that if there had been a panel of glass in the door, it “may not stop it from happening, but they’ll at least have some idea that it’s getting ready to happen.” Plaintiff also called as a witness one of defendant’s former security employees, who testified that the door in question was “an odd door,” and that there were a few doors at defendant’s facility “that you can be standing there and someone may push that door out and you may not be—they may not know someone is standing on the other side.” He stated that he had taken reports of people being injured by doors during his employment with defendant.

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Where a business leased its store space in a shopping center, the lease provided that the landlord was responsible for the parking lot, and a customer entering the store had the option of parking on a clear parking lot and using clear sidewalks to enter the business, the business owed no duty to a customer who slipped and fell on ice near the curb.

In Newell v. First State Bank, Inc., No. W2017-01209-COA-R3-CV (Tenn. Ct. App. Dec. 7, 2017), plaintiff was a customer at defendant tanning salon, and as she walked to her car after going to the salon she stepped “off the curb onto a snow and ice-covered portion of the parking lot where she had parked her car” and fell. Plaintiff brought a premises liability suit against the salon, as well as other defendants, though the salon was the only defendant relevant to this appeal.

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The Tennessee Supreme Court recently refused to recognize liability for potential negligence from a home inspector to the third party guest of the purchaser of a home.

In Grogan v. Uggla, No. M2014-01961-SC-R11-CV (Tenn. Nov. 21, 2017), plaintiff was injured when he was a social guest at a home and leaned against a second floor deck railing, which gave way and caused plaintiff to fall. During a home inspection prior to the purchase of the home, the “home inspector noted problems with the deck flooring of the second story deck but not with the railing.” The purchasers had the sellers replace the deck flooring, but not the railing. After plaintiff’s fall, a “forensic inspection of the railing showed that it had been improperly constructed using interior finishing nails rather than galvanized nails.” Plaintiff filed suit against several defendants, including the home inspector and the home inspection franchise.

Regarding defendant home inspector, the complaint alleged that he “should have known that the second floor rear exterior deck railing was constructed with interior finishing nails in violation of local, state, and national building codes, and constituted an unreasonable risk of harm…” The complaint further alleged that the home inspector did not perform the proper tests on the deck railing and that he “failed to report that [it] was negligently constructed in violation of local, state, and national building codes.”

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Where a plaintiff who slipped and fell in water at a concert could not show how long that particular spill had been on the floor, and could only show that two other spills had occurred in the same area as her fall, summary judgment was affirmed based on lack of constructive notice.

In Katz v. The Sports Authority of the Metropolitan Government of Nashville and Davidson County, TN, No. M2016-01874-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2017), plaintiff was attending a concert at Bridgestone Arena when she slipped on fell in a puddle on the floor. Her fall occurred between sections 115 and 116 of the 100 level concourse. “[J]ust before she fell, she noticed three people standing nearby, one of whom was carrying a small broom and dustpan.”

Plaintiff filed a premises liability suit, and defendant moved for summary judgment. In response to defendant’s motion, plaintiff “pointed to evidence that: (1) three of Defendant’s employees were standing nearby at the time that she fell; (2) employees were instructed not to clean up until after the concert was over; and (3) at least one other slip-and-fall incident occurred in the same general area about an hour and twenty minutes before [plaintiff’s] fall.” The trial court granted the motion for summary judgment, and the Court of Appeals affirmed.

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