Premises Liability

June 7, 2022

Plaintiff’s deposition created issue of fact in GTLA premises liability case.

Where plaintiff’s deposition created a “dispute of material fact” as to whether defendant had actual notice of the alleged dangerous condition in this GTLA premises liability case, summary judgment for defendant was reversed.

In Vaughn v. Coffee County, Tennessee, No. M2021-00653-COA-R3-CV, 2022 WL 1652552 (Tenn. Ct. App. May 25, 2022) (memorandum opinion), plaintiff was an inmate at defendant county’s jail. Plaintiff alleged that the toilet in his cell leaked, causing water to accumulate in the floor, which caused him to slip and badly injure his hip one day when he was hurriedly getting his plate of food from an officer at the front of his cell. Plaintiff admitted that he was aware of the water and even stated that he had slipped in the water a few days prior to this incident.

Defendant filed a motion for summary judgment, which the trial court granted based on its ruling that plaintiff had not presented proof from which the court could find that defendant had notice of the allegedly dangerous condition. On appeal, this ruling was reversed.

March 28, 2022

Injury case against homeowner’s association dismissed

by The Law Offices of John Day, P.C.

Where plaintiff was injured while mowing a common area of his neighborhood, but plaintiff did not have permission to mow in the common area and permission was required by the neighborhood covenants, summary judgment in favor of defendant in this premises liability case was affirmed.

In Walker v. Rivertrail Crossing Homeowner’s Association Inc., No. W2020-01201-COA-R3-CV, 2022 WL 852904 (Tenn. Ct. App. Mar. 23, 2022), plaintiff and his wife lived in the Rivertrail neighborhood and were members of the defendant homeowner’s association (HOA). Plaintiff’s home was adjacent to a common area that included a retaining wall at the edge of the neighborhood property, and plaintiff complained to a member of the HOA board that the ivy covering a portion of this common area was an eyesore. The board member told plaintiff to submit his concerns in writing to the HOA, but plaintiff failed to do so. Instead, plaintiff attempted to cut the ivy using his riding lawnmower, and when he encountered a trough that was covered by ivy and not visible, he was thrown from the mower and injured.

February 24, 2022

Plaintiff who was returning domesticated pigs to owner was not a trespasser.

by The Law Offices of John Day, P.C.

Where plaintiff entered defendant’s property to return two pot-bellied pigs that were owned by defendant’s stepson but lived on defendant’s property and were running loose, and plaintiff had been on the property before without defendant objecting, plaintiff was not a trespasser and had implied permission to come onto the property.

In Cook v. Fuqua, No. M2021-00107-COA-R3-CV, 2022 WL 244532 (Tenn. Ct. App. Jan. 27, 2022), plaintiff’s father and defendant were neighbors. Defendant’s adult stepson lived at defendant’s residence and kept pot-bellied pigs on the property. When plaintiff was visiting her father, she heard the pigs at her father’s door, rounded them up, then went onto defendant’s porch to inform someone at the residence that the pigs were loose. While she was knocking, one of the pigs knocked her off the porch and she sustained injuries. Notably, defendant had not been to the residence in the preceding month due to an order of protection, but he was still the owner.

Plaintiff filed this negligence suit, and defendant filed a motion for summary judgment asserting that plaintiff was a trespasser and he thus only “owed her a duty to not cause her injury intentionally, with gross negligence, or by willful and wanton conduct.” The trial court agreed and granted summary judgment, but that ruling was reversed on appeal.

February 17, 2022

Premises liability summary judgment affirmed based on lack of constructive notice.

by The Law Offices of John Day, P.C.

Where premises liability plaintiffs could not show that defendant church, who was renting the property to another church, had constructive notice of a downed power line on the property that had most likely been down for approximately 26 hours, summary judgment was affirmed.

In Kelly v. Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church, No. M2019-02238-COA-R3-CV, 2022 WL 202639 (Tenn. Ct. App. Jan. 24, 2022), plaintiffs were the parents of a minor child who was severely injured when he was playing on property owned by defendant church and he came into contact with a downed power line. Defendant church owned a tract of property that included four buildings. Defendant leased two of the buildings, the sanctuary and the fellowship hall, to St. Mary Church, who used the buildings and took on responsibilities for the buildings, including minor maintenance and paying the electric bill. Defendant was responsible for mowing the grass between the fellowship hall and sanctuary, and it paid a service to perform this work.

November 4, 2021

Summary Judgment Based on Tennessee Recreational Use Statute Affirmed.

by The Law Offices of John Day, P.C.

Where a minor child was injured while playing on a playground at a state park, and after the incident a park ranger admitted that the mulch under the playground was not thick enough but no prior notice of the mulch condition had been shown, plaintiff had not proven gross negligence to overcome the immunity afforded to the State under the Tennessee Recreational Use Statute. In Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021), plaintiffs’ minor child had gone camping with her grandparents at a state park. While there, the child went with her grandmother to play on a playground, and the child fell off the playground, fracturing her arm. The grandparents took pictures of the area the day after the fall, and plaintiffs filed suit, alleging that the “injury was due to inadequate mulch or padding on the playground.”

Plaintiffs’ complaint asserted claims for negligence, gross negligence, and gross negligence per se. After discovery, the State filed a motion for summary judgment, which the Claims Commissioner granted on two grounds. First, the Claims Commissioner ruled that the claim was “barred by § 70-7-102(a) of Tennessee’s Recreational Use Statute, which protects landowners, including the State of Tennessee, from responsibility for injury to recreational visitors.” The Commissioner further found that the gross negligence exception to the Recreational Use Statute did not apply here. Second, the Commissioner ruled that “Plaintiffs failed to establish an essential element of their claim under § 9-8-307(a)(1)(C) of the Claims Commission Act, that the proper state official had been given prior notice of the playground’s condition.” On appeal, summary judgment for the State was affirmed.

August 24, 2021

Summary judgment reversed where evidence showed city inspected culvert that collapsed the day before the accident and recommended imminent replacement

by The Law Offices of John Day, P.C.

Where plaintiff was injured in a car accident when a culvert underneath the road collapsed, and an inspector for defendant city had inspected the culvert the day before the accident and recommended construction begin just three days later to replace the culvert, summary judgment for defendant was reversed. In Carrick v. City of Shelbyville, Tennessee, No. M2020-01218-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2021), plaintiff was driving down a road owned and controlled by defendant city when a culvert under the road “gave way and the asphalt crumbled,” and plaintiff’s “vehicle became lodged in the resultant hole.” Plaintiff brought this suit under the GTLA, asserting that the city’s immunity was removed pursuant to Tenn. Code Ann. § 29-20-203. The city filed a motion for summary judgment, arguing that plaintiff could not show that it had actual or constructive notice of the dangerous condition, and the trial court agreed, granting summary judgment. On appeal, that ruling was reversed.

It was undisputed that the city had the culvert inspected by Mr. Frazier on August 29, 2017, one day before the accident, and that as a result of that inspection, Mr. Frazier created a work order stating that work to replace the culvert would begin on September 1, 2017. The work order further provided that “the dig area will be through the road as we will replace the culvert.” In addition to the work order, the city submitted Mr. Frazier’s affidavit in support of summary judgment, in which he stated that “while the culvert needed replacing, he did not conclude from his inspection that the culvert posed ‘any threat to the stability or integrity of the road.’” The city also submitted affidavits stating that there had been “no previous complaints or reports regarding damage to the relevant portion” of the road.

August 18, 2021

Premises liability summary judgment affirmed based on insufficient evidence of causation.

by The Law Offices of John Day, P.C.

Where plaintiff filed a premises liability claim against the State asserting that decedent’s death was caused by injuries he sustained when he fell off a sidewalk that constituted a dangerous condition, but plaintiff could not “show that the condition of the sidewalk more likely than not caused” the fall, summary judgment for defendant was affirmed.

In O’Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021), decedent was admitted to the Tennessee State Veterans’ Home after suffering a stroke. He was in a wheelchair, but was “alert, oriented, and able to communicate with staff.” While spending time outside just two days after his admission, decedent “fell outside the facility entrance” and “suffered serious injuries and tragically died five days later.”

Plaintiff filed this case with the Claims Commission as administrator of decedent’s estate, “alleging that the State negligently created or maintained a dangerous condition on the property.” Plaintiff asserted that decedent was “fatally injured after his wheelchair fell off the sidewalk in front of the facility entrance,” and that the height of the sidewalk combined with the “lack of sufficient markings or barriers at the edge of the sidewalk created a dangerous condition.”

February 9, 2021

Summary judgment for defendant overturned where plaintiff slipped in flooded restroom.

by The Law Offices of John Day, P.C.

Where plaintiff proceeded into a public restroom after seeing water in the floor and then slipped and fell, the Court of Appeals reversed summary judgment based on a lack of duty and plaintiff’s alleged comparative fault because defendant did not meet its burden of showing it had no duty and “reasonable minds could differ as to whether [plaintiff] was presented with a reasonable alternative to using the flooded restroom in this case.”

In Vaughn v. DMC-Memphis, LLC, No. W2019-00886-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2021), plaintiff filed a premises liability case based on injuries she received when she slipped and fell on a wet restroom floor. Plaintiff had ridden the public bus to defendant medical center, and upon entering the building she urgently needed to use the restroom. Plaintiff saw that there was significant water on the restroom floor, but she proceeded to walk towards the stall. Plaintiff then slipped and fell, injuring herself, but she got up and used the restroom after her fall. It was undisputed that there was no wet floor sign in the restroom, and while plaintiff testified that she knew there was another restroom on the same floor of the building, she stated that it was “quite a ways down the hallway.”

November 30, 2020

Dismissal Based on Lack of Foreseeability Reversed.

by The Law Offices of John Day, P.C.

Where plaintiffs, who were suing on behalf of an employee of an independent contractor on a construction project, alleged facts sufficient to meet the “minimum threshold of foreseeability” against the defendant general contractor, and where discovery had not yet occurred to allow for the inspection of the contracts between the relevant parties, dismissal of plaintiffs’ wrongful death claim against the general contractor was reversed.

In Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020), plaintiffs were the decedent’s children, who had died while working as a plumber on a construction project. The project involved building a new gym for Welch College, and before the decedent’s involvement in the project, a different plumping company had laid a sewer line. The day before the gym was scheduled to be used for the first time, general contractor Southland Constructors discovered that the sewer line had not actually been connected to the building before it was buried. Southland then called Mitchell Plumbing, the decedent’s employer, and the decedent was sent to connect the pipe. According to the complaint, Southland advised Mitchell Plumbing that the trench dug to correct the problem would be about 15 feet long and 3 feet deep, but it ended up being both longer and deeper. The complaint alleged that no materials were used to shore up the trench based on the representations made by Southland, that the general contractors failed to have traffic stopped at a nearby parking lot, and that the “soil in the area was in an especially dangerous condition because it was wet and loose due to the previous excavation.” Soon after the decedent got into the trench to repair the sewer line, the walls collapsed, and he was killed.

November 12, 2020

Summary judgment affirmed where plaintiff knew about leak before she slipped.

by The Law Offices of John Day, P.C.

Where a residential tenant and property owner both knew about a leak which formed a puddle of water that caused plaintiff to slip, defendants property owner and property manager were not liable for plaintiff’s injuries and summary judgment was affirmed.

In Richardson v. H & J Properties, LLC, No. W2019-02082-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2020), plaintiff moved into a triplex apartment owned and operated by defendants in March 2014. In the following months, she reported leaks in her laundry room and adjoining room several times. On September 10, 2014, she again reported a leak in this area of her apartment. The next day, a maintenance worker was sent to the apartment to repair the leak, and while plaintiff was showing him the issue, she slipped and fell in a “small pool of water” that had been caused by the leak, breaking her ankle.