Articles Posted in Premises Liability

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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Where a tenant told her landlord about a leak in her kitchen ceiling, the landlord was liable when the light fixture in the ceiling later fell and injured the tenant.

In Holloway v. Group Properties LLC, No. W2016-02417-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2017), plaintiff noticed a water leak in her kitchen ceiling about two months after moving into her rented apartment. She told her landlord, who “inspected the property but did not find the leak [and] therefore, he did not contact a plumber.” There was a dispute as to whether plaintiff contacted defendant landlord again regarding the leak, but eventually the light fixture in the kitchen fell, striking plaintiff and causing water to fall onto the floor. Plaintiff slipped and fell in the water and was injured.

Plaintiff filed suit in sessions court and won a judgment of $4,940. Defendant appealed to circuit court, where plaintiff was awarded $5,040. The circuit court specifically found that defendant “was on notice of a leak coming from the second floor of the duplex.” Defendant appealed, and the Court of Appeals affirmed.

Defendant asserted two arguments on appeal: 1) that plaintiff’s complaint “fail[ed] to state a claim for relief under the [Uniform Residential Landlord and Tenant Act (URLTA)],” and 2) that plaintiff’s “sole recourse [was] pursuant to URLTA.”

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Just because a plaintiff’s actions may have arguably contributed to creating a dangerous condition does not mean summary judgment for defendant is guaranteed in a premises liability case.

In Rader v. Ruby Tuesday, Inc., No. E2016-01677-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), plaintiff had called in a catering to-go order to defendant restaurant. The order was called in the day before and included at least one bag of ice. Per plaintiff’s normal practice when ordering catering, she gave the restaurant a pick-up time earlier than she anticipated arriving to ensure that the food would be ready. On the day of the accident, plaintiff called the restaurant when she “got off the exit,” then worked her way through “stop and go” traffic. Upon her arrival, she gave her credit card to the manager and was told the food was on the ledge. When she picked up the bags, including the bag containing the ice, water fell onto the floor and plaintiff slipped and fell. The parties agreed that there was no water on the floor when plaintiff entered and that the water came from ice that had melted and/or created condensation in the bag. Plaintiff testified that when she felt the bag of ice, it was “all water.”

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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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