Articles Posted in Premises Liability

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The Tennessee Supreme Court recently held that a contractor and subcontractor were not liable in a case where a partially constructed home burned, but the cause of the fire could not be pinpointed.

In Jenkins v. Big City Remodeling, No. E2014-01612-SC-R11-CV (Tenn. April 5, 2017), plaintiffs brought a negligence action against both the general contractor and flooring subcontractors who were building plaintiffs’ new home after the home was destroyed in a fire. Expert testimony established that the fire started on the back deck of the home, yet the specific cause could not be identified—“possible causes of the fire were arson, improperly discarded cigarettes, electrical issues, and spontaneous combustion of rags.” The deposition testimony in this case showed that the property was not fenced; that the back deck could have been accessed by any member of the public; that plaintiffs had had several construction workers on the property; and that the fire happened on Halloween, a time when “a lot of fires occur, including fires that are intentionally set.” Plaintiffs asserted that the subcontractors’ negligence caused the fire, as they had been seen smoking on the back deck before and they had been using rags to apply flammable flooring materials on the day of the fire, which could have caused the fire if disposed of in an improper manner. To prove the claim against the general contractor, plaintiffs planned to rely on the doctrine of res ipsa loquitur to infer negligence.

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In Fletcher v. CFRA, LLC, No. M2016-01202-COA-R3-CV (Tenn. Ct. App. Mar. 8, 2017), the Tennessee Court of Appeals affirmed summary judgment, finding that defendant restaurant owner was not vicariously liable for the actions of its employee.

Defendant owned an IHOP restaurant, and that IHOP hired a dishwasher who was on parole for “aggravated battery and felony firearms convictions.” Plaintiff ate at the restaurant with a friend very early one morning. When plaintiff was leaving the restaurant, the dishwasher believed he had not paid for his meal and followed him to the parking lot. There was no physical confrontation in the parking lot, and plaintiff paid the bill. The dishwasher’s shift had ended, so he called his girlfriend to pick him up from work. According to both the dishwasher and his girlfriend, after they left the IHOP parking lot the car that plaintiff and his friend were driving began following them. They drove to an apartment complex with plaintiff still following, and a physical altercation ensued. There was conflicting testimony about what exactly happened, but at some point the dishwasher jumped into the car plaintiff had previously been riding in and ran over plaintiff two times, severely injuring him.

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In Cruce v. Memmex Inc. D/B/A Salsa Cocina Mexicana Restaurant, No. W2016-01167-COA-R3-CV (Tenn. Ct. App. Feb. 7, 2017), the Court of Appeals affirmed summary judgment in a premises liability case because plaintiff failed to prove the existence of a dangerous condition.

In December 2012, plaintiff was going to a party on the second floor of defendant restaurant. On her way up the stairs, “she noticed that the railing on her right side was decorated with garland and Christmas lights,” and she said she had trouble finding anywhere to place her hand on the railing. When she was leaving the party and going back down the stairs, she reached for the decorated handrail but asserted that she “was unable to grasp the railing itself and instead only gripped a handful of garland.” She then fell, breaking her leg. Although plaintiff stated that she did not notice it at the time, it was undisputed that the railing on the other side of the stairwell was not decorated.

Plaintiff filed suit, alleging that the restaurant “created a dangerous condition by covering a safety device, i.e., handrail, with items that impeded its use.” Defendant filed a motion for summary judgment, relying primarily on the deposition of the restaurant owner wherein he stated that he had decorated one of the handrails for fifteen years and never had a problem, that no one had ever fallen down the stairs “either as a result of the Christmas decorations or for any other reason,” and that only one of the handrails was decorated. The trial court granted summary judgment, ruling that “the decorated handrail did not constitute a dangerous or defective condition for purposes of premises liability,” and the Court of Appeals affirmed.

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In Rushing v. AMISUB Inc., No. W2016-01897-COA-R3-CV (Tenn. Ct. App. Feb. 8, 2017), a premises liability claim once again failed when the plaintiff had no evidence regarding how long the dangerous condition existed or who had created it.

Plaintiff was walking into defendant hospital’s emergency room, and as she approached the registration desk she allegedly “slipped and fell in a clear liquid on the floor.” Plaintiff filed this premises liability suit against the hospital and at some point was represented by counsel, though by the time of the trial court’s grant of summary judgment she was proceeding pro se. In its answer, the hospital alleged comparative fault against its housekeeping management service, which plaintiff then added as a defendant.

Defendants moved for summary judgment on the basis that plaintiff could not prove notice of the alleged spill. In her response, plaintiff stated that two hospital employees “admitted that the spill was sprite. They said that they had contacted the housekeeping company…to remove the spill. To their knowledge they thought the employees had gotten it up but apparently not.” At the summary judgment hearing, the trial court determined that these two employees had not been deposed and accordingly gave plaintiff sixty additional days for discovery. When the second hearing occurred, plaintiff had still not deposed the two employees who she claimed admitted that they knew the liquid was on the floor. Finding that “plaintiff’s evidence is insufficient to establish an essential element of her claim, which is notice of the allegedly dangerous condition,” the trial court granted defendants’ motions for summary judgment. The Court of Appeals affirmed.

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In Keane v. Campbell, No. M2016-00367-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2017), the Tennessee Court of Appeals affirmed summary judgment for defendants in a negligence case revolving around the collapse of a deck.

Plaintiff was teenager who attended a party at defendants’ home. The party was for high school students, and between 40 and 70 kids attended. During the party, the kids were “dancing and jumping on an elevated, wooden deck attached to Defendants’ house” when the deck collapsed suddenly, and plaintiff fell and was injured. Within one year of plaintiff turning 18, she and her parents filed a negligence suit against defendants, asserting that “Defendants: (1) failed to properly and adequately monitor or supervise the children attending the party; (2) failed to warn the children of the danger they were facing; (3) failed to take any action to prevent the collapse of the deck; (4) failed to prevent the injury to the children; and (5) failed to observe what they could have observed in the exercise of reasonable care regarding the flexing of the deck.”

Defendants moved for summary judgment, which the trial court granted, holding that there was no duty owed to plaintiff because the collapse of the deck was not foreseeable. The Court of Appeals affirmed this ruling.

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In Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV (Tenn. Dec. 22, 2016), the Tennessee Supreme Court analyzed claims against the seller of an AED, and though the claims were framed in the context of the decedent being a third-party beneficiary of the contract between the seller and owner of the AED, the Court engaged in quite a bit of analysis surrounding the duties implicated by the sale and/or ownership of an AED.

In 2008, defendant church had purchased four AEDs from defendant ExtendLife, one of which one placed in a fitness facility owned and operated by the church. When the church purchased the machines, they also purchased the Physician Oversight Program Management System, which outlined certain services that ExtendLife would provide to the church. In addition, as part of the purchase, ExtendLife provided four complimentary training sessions for CPR, AED and Emergency Oxygen Administration certifications. The church utilized three of these four sessions, but the final session was cancelled due to low attendance.

More than two years later, in January 2011, plaintiff and her husband joined the church’s fitness facility. In August of that year, the husband took a cycling class and then collapsed. The class instructor attended to the husband, thinking he was suffering from a seizure, and she was eventually assisted by two off-duty police personnel who were at the facility. These men asked the instructor to retrieve the nearest AED, which she did, but the machine was not used on husband. An ambulance arrived shortly thereafter and transported husband to the hospital, where he died.

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In Lurks v. City of Newbern, Tennessee, No. W2016-01532-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2017), the Court of Appeals reminded us once again that evidence of a fall is not enough to establish liability in a slip and fall premises liability case.

Here, plaintiff was walking on a city-owned and maintained sidewalk outside her home. She walked this sidewalk often, as she and her husband owned a vacant lot next to her home as well as a rental property on the same street. According to her testimony, she was aware that the sidewalk was in poor condition and had complained to the city. On this particular day, she fell on the sidewalk, sustaining an injury that eventually required knee surgery.

At trial, plaintiff testified that “she fell immediately, that she did not stumble and fall, and that she did not know what caused her to fall or whether her foot hit anything that caused her to fall.” As there were no witnesses to plaintiff’s fall, “there was no testimony at all by anyone regarding what caused [plaintiff] to fall.” The trial court ruled that the sidewalk was in fact defective, but that the case should be dismissed because “there was no proof as to the cause of [plaintiff’s] fall,” and the Court of Appeals affirmed.

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In Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016-00447-COA-R9-CV (Tenn. Ct. App. Jan. 9, 2017), the Court of Appeals addressed the issue of whether parents in Tennessee may “bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements,” affirming the existing common law rule such agreements were not enforceable against a child when signed by a parent.  The Court also discussed whether a minor had the right to seek recovery of medical expenses in a personal injury case.

Mother took her son to defendant trampoline park, and on their first visit mother was required to sign a “Customer Release of Liability and Assumption of Risk.” This form purported to waive liability for any injury on behalf of both mother and son, and it contained a choice of law provision naming California law as governing the agreement as well as a forum selection provision stating that litigation would be brought in California. The release stated that it would be effective until the son was eighteen. At a later visit, son was injured, and son and mother both brought this action against defendant trampoline park in the Davidson County Circuit Court.

Defendant filed a motion to enforce the contract in the trial court, arguing that the claims had been waived and that the case had to be brought in California and governed by California law. Mother voluntarily dismissed her claim against defendant, and the trial court subsequently denied defendant’s motion to enforce the contract. The trial court found that “neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has ‘a more significant relationship to the facts surrounding this case.’” The trial court also held that the liability waiver did not operate to waive son’s claims, as “such a contract is not permissible in Tennessee.” In a lengthy decision, the Court of Appeals ultimately affirmed all three of these holdings.

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Not every fall results in a successful premises liability case, as the plaintiffs in a recent Tennessee Court of Appeals case were reminded.

In Woodgett v. Vaughan, No. M2016-00250-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2016), plaintiff filed suit after falling while she was viewing defendants’ home, which was listed for sale. Plaintiff’s husband was a realtor, so he contacted the listing agent about viewing defendants’ home. Defendants had already moved out and removed all of their belongings, so plaintiff and her husband were allowed to view the home on their own. In the upstairs bonus room there was a door that led to the attic access. The landing that accessed the attic was raised, so defendants had hired someone to build a wooden box to use as a step to get to the landing. The step was made with two-by-twelves, measured 9.5 inches high, 39 inches wide and 10.75 inches deep, and was covered with carpet. The step could be moved out of the way and was not affixed to the landing, as it was sometimes moved to accommodate furniture passing through the area. Defendants had “used the step for twenty years without incident.” According to plaintiff, when she used the step while viewing the home, it “gave way” and made her fall.

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Citing the Rule of Sevens, the Court of Appeals recently affirmed a finding that a 13-year-old was solely responsible for his injury when he fell on the bleachers at his school.

In Crockett v. Sumner County Board of Educ., No. M2015-02227-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), injured plaintiff and his parents sued his school after he fell on bleachers in the gym. Plaintiff was attending summer school, and the day before his injury someone had intentionally caused flooding in a boys’ bathroom. Because no one would confess, two coaches had all of the eighth grade boys help clean the bathroom and pick up trash from the bleachers. According to plaintiff, he mopped the bathroom and then was told to begin helping in the bleachers, though the coach supervising the work testified that plaintiff was not told to work in the bleachers after mopping.

At the time of his injury, plaintiff was using the bleacher seats as stairs, rather than using the designated stairway on the bleachers. Plaintiff stated that the coach had left the gym when he fell, but the coach testified that he had left for a couple of minutes to retrieve a dry mop and had returned to the gym by the time of plaintiff’s accident.

During a bench trial, plaintiff testified that “he knew from the time he was a little kid that he was not supposed to use the bleacher seats as steps,” and that such usage could cause injury. He further testified that he “just wasn’t thinking about it” at the time of the accident. Two coaches from his school testified that they had told the students on many occasions not to use the seats as steps but to instead use the designated steps, which had non-slip material on them.

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