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Articles Posted in Premises Liability

Where an independent contractor working at a convenience store had been told that the store had been robbed before, neither the landlord nor the operator of the store were liable when he was injured in an armed robbery.

In Priestas v. Kia Properties, LLC, NO. W.2019-00728-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2019), plaintiff worked as an independent contractor for a convenience store run by one defendant, which was in a property owned by the other defendant. Plaintiff was hired when he stopped at the store one night upon seeing multiple police cars there, and was told there had just been a robbery. Plaintiff was hired to work “a few hours a day to perform tasks such as stocking the store’s coolers and cleaning up inside and outside the store.” The owner told plaintiff that the store “had been burglarized/robbed on several prior occasions,” and plaintiff informed the owner that he would carry a concealed firearm when working. Approximately two months after he began working, plaintiff was shot during a robbery. Plaintiff was attempting to wrestle a gun from an armed robber when the shooting occurred.

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Where plaintiff brought suit against a trucking company based on injuries he received while operating a forklift inside a trailer at the distribution center at which he was employed, summary judgment was appropriate where the defendant trucking company produced records showing that the truck plaintiff was injured in did not belong to it.

In Hashi v. Parkway Xpress, LLC, No. M2018-01469-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2019), plaintiff was a forklift operator employed by a distribution center. While plaintiff was operating a forklift inside the trailer of a tractor-trailer truck, the truck suddenly moved, causing plaintiff to fall to the ground. Plaintiff brought this suit for the injuries he sustained, naming as defendants the trucking company that he alleged owned the truck in question, the freight broker, and the unnamed truck driver.

The trial court granted summary judgment to both the trucking company and the freight broker, and the Court of Appeals affirmed.

Defendant trucking company “argued that summary judgment was appropriate because it was not the owner or operator of the tractor-trailer in which [plaintiff] was working when he was injured.” Defendant trucking company submitted an affidavit from its president stating that the driver in question was not their employee, and that the company’s truck was at the distribution center from 6:00 am to 7:08 am, while the injury occurred at 1:20 in the afternoon. The trucking company also submitted a bill of lading to support its alleged time-frame, as well as incident reports identifying the driver of the truck causing the injury. Based on this evidence the trial court granted summary judgment.

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Where a plaintiff fell down stairs but could not identify what caused his fall, summary judgment should have been granted in a premises liability case.

In Cartee v. Morris, No. M2018-02272-COA-R9-CV (Tenn. Ct. App. Sept. 6, 2019), plaintiff worked for defendant, and part of his job entailed delivering checks to a two-story building that was a residence turned office space. On the day of the fall, plaintiff ascended the main wooden staircase to the second floor offices, and at the top of stairs an employee had placed a dog gate. According to affidavits from employees, the dog gate was not secured to the wall, but was instead simply propped up “so it could be easily moved,” and it was about one and half feet tall. Plaintiff did not recall how he got over the dog gate on his way up the stairs. After delivering the checks, plaintiff fell down the staircase, causing him to be unconscious for two days. Plaintiff did not remember the accident and could not remember what caused his fall. Two employees who were present on the second floor heard the fall, but neither of them witnessed the fall. They both testified that when they went to check on plaintiff after hearing the fall, he and the dog gate were on the landing.

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Where plaintiff was hit by a vehicle exiting a restaurant driveway, and the driveway conformed to all regulations and there had been no previous accidents at the site, the landowner, Premises liability defendants had no duty where driveway complied with all regulations. owner, and franchisee owed no duty to plaintiff.

In Howell v. Nelson Gray Enterprises, No. E2019-00033-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2019), plaintiff was driving his motorcycle on a public highway when he was struck by a car that was exiting a McDonald’s parking lot. Plaintiff brought this premises liability and negligence case against the property owner, the restaurant owner, and the franchisee, arguing that the exit in question was “an unreasonably dangerous condition because it promotes the uncontrolled flow of vehicular traffic into a five-lane undivided highway without traffic control devices or warning signs.” (internal quotation omitted). The trial court granted summary judgment to defendants, finding that they owed no duty to plaintiff, and the Court of Appeals affirmed.

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Where the evidence suggested that a small amount of clear liquid had been on the floor of a grocery store for just a short time, summary judgment for defendant in a Tennessee premises liability case was affirmed.

In Jones v. Publix Supermarket, Inc., No. M2018-01672-COA-R3-CV (Tenn. Ct. App. June 7, 2019), plaintiff was shopping in defendant grocery store. As she rounded the corner towards the seafood department, she slipped on clear liquid. She got up quickly and did not seek assistance, and she refused to fill out an incident report on the day of the accident, but she returned the next day to complete one. She subsequently filed this premises liability action. The trial court granted summary judgment for defendant, finding that plaintiff failed to prove actual or constructive notice of the allegedly dangerous condition, and the Court of Appeals affirmed.

The incident was captured by store cameras, which showed that about two minutes before plaintiff fell, a toddler was in a shopping cart in the same area and was playing with and drinking from a sippy cup. The toddler dropped the sippy cup into the wire cart two times, and defendant argued that this was the likely source of the liquid. In the two minutes between the toddler leaving the area and the plaintiff falling, the video showed several customers walking through the area with no problems, and no store employees coming nearby. During discovery, the store employee who was working in the seafood department that day stated that he was helping a customer at the counter at the time of the incident, but that he heard something happen. He went to the location of plaintiff’s fall around two minutes later, saw “a little bit of water…not a puddle” on the floor, and waited there until another employee brought paper towels to clean the liquid. He testified that prior to the fall, he had seen no liquid in the area.

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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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