Articles Posted in Premises Liability

Where a drainage cut in a concrete platform was visible but not open and obvious, a finding that the plaintiff was only twenty percent at fault for his fall was affirmed on appeal.

In Osborne v. The Metropolitan Government of Nashville and Davidson County, No. M2017-01090-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff fell while visiting a city-owned facility for trash that was too large for regular trash trucks. The center had two levels, with the upper level being about five feet off the ground. On the edge of the upper platform there was a 26-inch-wide concrete barrier, and this barrier had 15-inch-long drainage cuts. There were signs stating “Please Use Care When You Unload Items” and telling children to stay in the vehicle, but there were no signs about the drainage cuts, no verbal warnings, and no markings or paint to draw attention to the cuts. Plaintiff had been to this center many times, but he had never been directed to this particular area. When he got out of his truck, he stepped onto the barrier and sidestepped toward the back of his truck without looking down at the barrier. As he was walking, not holding onto his truck, he stepped into the drainage cut and fell five feet, injuring his arm.

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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 trial court granted defendant’s motion for summary judgment in a Tennessee premises liability case without considering plaintiff’s motion to amend her complaint, summary judgment was vacated.

In Shaw v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2016-02455-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2017), plaintiff was a school bus driver employed by defendant. While attending a mandatory training program in 2013, plaintiff had to park her bus then walk across a parking lot owned and maintained by defendant to get to a shuttle. While walking, plaintiff “tripped on a buckled and cracked portion of the pavement,” which was “purportedly the result of flooding that had occurred in Nashville in 2010.”

Plaintiff filed a premises liability complaint, alleging that defendant “breached its duty of care owed to her by failing to repair or warn her of this dangerous condition,” and asserting that “the parking lot existed in a state of disrepair and had been in such a state for a sufficient length of time that [defendant] knew or should have known of its dangerous condition.” Defendant filed a motion for summary judgment, and plaintiff thereafter filed a motion to amend her complaint and add allegations that defendant “had violated various applicable building codes by failing to properly maintain the lot at issue” and thus committed negligence per se. Plaintiff also filed an affidavit from an engineering expert regarding the alleged building code violations.

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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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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