Articles Posted in Premises Liability

Tthis is a premise liability case arising from the collapse of a bench in a handicap shower at the defendant’s hotel.   Upon checking into their handicap room at the Holiday Inn Express, the Parkers noticed the bench in the handicap shower appeared to be loose.  The brackets were pulled away from the wall a bit and the bench itself was shaky when pressed on.   The Parkers reported the problem, and the hotel’s maintenance man tightened the bolts.  Both the maintenance man and the Parkers testified the tightening of the bolts on the bracket appeared to fix the problem as the bench was no longer wobbly and the brackets were flush with the wall. 

The next morning, Mr. Parker transferred himself from his wheelchair on to the shower bench.  Approximately 10 minutes into his shower, the bench collapsed and Mr. Parker struck the floor.  Ultimately, Mr. Parker was diagnosed with compression fractures at T-7, T-8 and T-9.  Mr. Parker also alleged that as a result of the fall and his spinal injuries that he suffered more frequent and more severe pressure sores, urinary tract infections and bladder pain. 

The Parkers filed suit against Holiday Inn Express.  The hotel answered and alleged the comparative fault of D & S Builders.  D & S Builders had constructed the hotel and had installed the shower benches in the handicap rooms of the hotel.   D & S Builders was dismissed due to the four year statute of repose for negligent construction claims.  In this case, the certificate of occupancy had been issued on July 31, 2006 and suit was not filed until May of 2011. 

In the recent premises liability opinion of Wolfe v. Felts, Jr. No. W2013-01995-COA-R3-CV (Tenn. Ct. App. May 29, 2014), the court of appeals affirmed a trial court’s decision to grant directed verdict in favor of defendants in a case where plaintiff fell on ice that had formed in front of defendants’ building after the building’s sprinkler system had activated during freezing temperatures.

The plaintiff in Wolfe did not argue, as is customary in most premises cases, that defendants had actual or constructive knowledge of the dangerous condition (the sprinkler system operating in freezing temperatures). Instead, plaintiff argued that defendants had created the dangerous condition by negligently failing to properly manage the sprinkler system. Tennessee law holds that a plaintiff is not required to prove that a premises owner had prior notice of a dangerous condition if the premises owner created the condition that caused plaintiff’s injury.

However, according to the appellate court, plaintiff’s case failed because there was no evidence as to what constituted proper sprinkler management or maintenance so as to establish that improper sprinkler management or maintenance had caused the sprinkler to malfunction.

This is a slip and fall case. The plaintiff was engaged to the defendants’ daughter.   On multiple occasions, the defendants had hosted the plaintiff at their lake home for extended visits. In the summer of 2010, the plaintiff was again the invited guest of the defendants. Shortly before his visit, the power company had cut down numerous trees and bushes on the property but failed to remove them. In an effort to make himself useful, the plaintiff began helping his fiance’s mother remove the brush and trees. While performing the work, the plaintiff slipped on a large rock on the ground and fell and broke his arm in two places. The following facts were not in dispute:

·        The plaintiff had worked in that area for two or three days before the fall.

·        The accident occurred in the daylight.

Knowledge of inadequate lighting was enough to create a jury issue of dangerous condition in  Christian v. Ayers L.P. d/b/a Ms. Lassie’s Lodge, No. E2013-00401-COA-R3-CV (Tenn. Ct. App. March 28, 2014), according to the Eastern Section of the Tennessee Court of Appeals.

Plaintiff attended an event for “Relay for Life” sponsored by the American Cancer Society at defendant owned Ms. Lassie’s Lodge. When plaintiff left the event between 6:30 and 7:00 p.m., it was dark outside. Plaintiff testified that she had trouble seeing the ground and walked slowly with extra caution to her car in the parking area adjacent to the lodge. There was no lighting on the walkway or in the parking area. Plaintiff fell mid-stride after her left foot went down further than her right foot near the edge of the walkway. She suffered a four-part humerus fracture and incurred $52,000 in medical expenses after hospitalization and surgery.

Owner’s representative and partner testified that she had opened and closed the lodge that evening. Upon arriving, owner’s representative flipped “some switches” and became aware that the lights on the walkway and in the parking lot were not on, causing her to look unsuccessfully for the switch for the outside lights. She was then told that there was no switch and the lights should come on automatically. It was later determined by workers after plaintiff’s fall that multiple exterior bulbs, including the lights in question, were burned out.

This is a liquor liability case against a bar in East Tennessee known as the Electric Cowboy.   After a night of drinking, Ashley Langworthy was driving her vehicle at a speed in the range of 83 to 94 mph when she lost control and struck a tree causing her vehicle to go airborne and crash in to the corner of a brick apartment killing the plaintiff’s 71 year old decedent.  Ms. Langworthy had to be extricated from the vehicle. By the time she arrived at the hospital, her BAC was still .18.  

Following discovery, the following facts about the events leading up to the crash were undisputed:

·        Langworthy and a friend had consumed two margaritas while eating dinner at Chili’s. They then purchased some Smirnoff Ice Coolers and Ms. Langworthy drank two of those in the parking lot of the Electric Cowboy.

The Rhode Island Supreme Court has held that a 17-year old young man could not rely on the attractive nuisance doctrine to impose liability on the State of Rhode Island.

The plaintiff and some friends entered a closed mental health facility that was locked and marked "No Trespass."  Along the way, he was burned when a bottle of sulfuric acid in the building burst.  The trial court rejected his case, and Rhode Island’s highest court affirmed the dismissal.

Plaintiff Martin was an apprentice lineman for Upper Cumberland Electrical Membership Cooperative. He agreed to help a neighbor move an electrical line to a barn. As the plaintiff climbed the electrical pole which had been installed by the neighbor, the pole fell over and the Plaintiff sustained serious injuries from the fall. The plaintiff filed suit against his neighbor alleging negligence in the installation of the pole. Specifically, the plaintiff alleged the pole had not been set at a sufficient depth to ensure stability. The neighbor defended claiming the accident was a result of the plaintiff’s failure to follow proper safety protocols and ensure the stability of the pole before climbing it.  

During discovery, the plaintiff testified about the steps he took to ensure the safety of the pole before climbing it. Thereafter, the defense filed a motion for summary judgment supported by affidavits of experienced linemen who opined the plaintiff had not followed basic safety requirements.   In response, the plaintiff submitted three affidavits to establish the subject pole had not been set at the proper depth per established standards and that the plaintiff had followed proper safety procedures in checking the stability of the pole before climbing it. The trial court granted the defendant neighbor’s motion for summary judgment finding (1) there was no material issue of fact and (2) despite the affidavits indicating the plaintiff had followed proper safety protocols before climbing the pole, the court was of the opinion he did not, (3) and that electrical work was an "ultrahazardous activity".

The Court of Appeals reversed noting that while they had several times noted that electricity was inherently dangerous they had never held it to be an "ultrahazardous activity". Moreover, the defendant’s injuries had not been caused by electricity but instead were caused solely by the fall.   Second, the Court of Appeals concluded the plaintiff had established the neighbor had a duty to either ensure the safety of the premises or to warn the plaintiff of any dangers. Since the neighbor had been the one to actually set the pole, he was on notice of its depth. In addition, proof was adduced to show the neighbor had removed some dirt from around the pole thereby making it less stable. On the issue of whether the plaintiff had followed safety protocols, the competing affidavits created an issue of fact and had to be viewed in the light most favorable to the non-moving party.   As for the defendant’s argument regarding the application of the contractor exception (a contract of repair is sufficient by itself to impart notice of a danger), the Court of Appeals noted that the plaintiff was not repairing anything but instead simply moving the line; therefore, the exception did not apply.

Should a county bear any financial responsibility when it fails to release a jail inmate on time and the inmate gets injured in an altercation when he should no longer have been in jail and therefore not in the position to be harmed.

The Tennessee Supreme Court recently decided such a case. King, an inmate of the Anderson County Detention Center, sued following an attack by another inmate in which he sustained injuries including an eye injury that required surgery and a broken nose.  He maintained he should not have been in jail at the time of the attack.

The trial court determined that both the Plaintiff Inmate and the Defendant County were responsible for Plaintiff’s injuries and assigned 45% fault to the Plaintiff for instigating the fight and 55% fault to the Defendant for failing to timely release the Plaintiff. The Court of Appeals upheld the judgment of the trial court. The Defendant County appealed to the Tennessee Supreme Court.