Premises Liability

June 10, 2016

Three-Inch Step From Store to Sidewalk Not a Dangerous Condition

In Mooney v. Genuine Parts Co. d/b/a National Automotive Association, Inc., No., W2015-02080-COA-R3-CV (Tenn. Ct. App. May 11, 2016), the Tennessee Court of Appeals affirmed summary judgment for defendant retail store in a premises liability action.

Plaintiff had entered the automotive parts store to apply for a job. After being told the position was filled, she left through the same door she had previously entered and fell. Plaintiff filed a premises liability suit, claiming that the doorway constituted a dangerous condition. Plaintiff alleged that the concrete outside the store was 3.5 inches below the interior floor, that the drop-off is what caused her fall, and that the dangerous condition “could have been remedied by a ramp, contrasting floor material or paint, handrails, or warning signs.”

Defendant moved for summary judgment, claiming they “had no duty to warn [plaintiff] of the three-and-on-half-inch step-down at the doorway because it was not foreseeable that anyone would fall because of it.” In support of its motion, defendant pointed to evidence that no one had ever fallen during the 26 years the store manager had worked there, that plaintiff herself had traversed the doorway just a few minutes earlier, and that plaintiff had admitted that “she was not looking down at the step when she exited the door and fell.” In replying to this motion, plaintiff relied on her own deposition testimony, the store manager’s testimony that he had stumbled before going out the door, and a former employee’s testimony that he could see where the decline could cause someone to fall. The trial court granted defendant’s motion for summary judgment, and the Court of Appeals affirmed.

May 31, 2016

Glass Display Case in Retail Store Not a Dangerous Condition

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

In Singletary v. Gatlinburlier, Inc., No. E2015-01621-COA-R3-CV (Tenn. Ct. App. April 25, 2016), the Court of Appeal affirmed summary judgment for defendants in a premises liability case. While visiting a retail store in Gatlinburg, a woman unexpectedly fainted and fell into a glass display case. The case shattered and a piece of glass pierced the woman in the chest, and she later died from the injuries she sustained. The woman’s husband sued the retailer and mall where the store was located, alleging that the “narrow or cluttered aisles and the case’s fragile glass, which shattered and impaled” his wife were the proximate cause of her death. The husband alleged that the defendants breached their duty to his wife because the display cabinet was a “dangerous condition.”

Defendants filed a motion for summary judgment, attaching an affidavit and depositions in support. The evidence offered by defendants showed that the glass case in question here was common in other stores in Gatlinburg; that it had been in use for around 30 years; that during the 30 years it had been used by the store, it had withstood “collisions from baby carriages, children leaning against and pushing on it and an impact from a ‘purse the size of a refrigerator;’” that the glass was “cleaned regularly and ‘never appeared to be fragile or insubstantial;’” and that the store had “no expectation that the glass would break.” Based on these facts, the trial court granted summary judgment. The trial court ruled that “nothing Defendants did or failed to do caused [the wife] to fall,” and that “prior experiences with the antique display case did not alert the Defendants that the harm done to this particular plaintiff was foreseeable.” The trial court ultimately held that the “injury could not have been reasonably foreseen. Therefore, the duty of care does not arise.” The Court of Appeals affirmed this ruling.

May 20, 2016

No Causation Found For Plaintiff Injured by Dorm Fire Alarm

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

In Crutchfield v. State, No. M2015-01199-COA-R3-CV (Tenn. Ct. App. April 18, 2016), plaintiff sued the State for alleged negligence regarding a fire alarm in her college dorm room at Tennessee Technological University (TTU), a state university. While the claims commission found for plaintiff and awarded her damages, the Court of Appeals reversed, holding that the plaintiff failed to prove proximate cause.

Plaintiff was hearing-impaired, with hearing loss of around 50% in her right hear and 75% in her left ear. When she started school at TTU her freshman year, she requested permission to live off campus but was denied. Instead, TTU worked with plaintiff to install a supplemental alarm system in her dorm room. To accommodate plaintiff, TTU gave her a single room in a dormitory and installed a SilentCall supplemental alarm system therein, which consisted of a strobe light and bed shaker that could be triggered either by a smoke detector or when a doorbell outside her room was pushed. If smoke were detected, a high pitch alarm that was mounted on the wall above her bed would sound as well. In addition to this supplemental alarm system, plaintiff’s room was also equipped with the standard alarm that all rooms had, which consisted of a speaker above her door. This alarm was the same in every room and would sound for fires or fire drills.

One morning while plaintiff was sleeping, she woke up to a high-pitch alarm and went outside. While she initially believed it was the supplemental alarm above her bed, it was later determined to be the standard alarm above her door that was sounding. Based on the time the alarm began and when plaintiff testified to have woken up, plaintiff slept through the alarm for around fifteen minutes before being awoken. After this incident, plaintiff experienced increased difficulty with her hearing, and a doctor diagnosed her with a noise-induced type injury that significantly reduced her hearing, leaving her essentially deaf without hearing aids.

March 31, 2016

Tennessee Recreational Use Statute Strikes Again

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

In a recent premises liability case, a Tennessee statute shielded the property owner from liability for a four-wheeler accident that occurred on his property. In McCaig v. Whitmore, No. W2015-00646-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2016), plaintiff and his family were attending a social gathering at defendant’s home, which consisted of around seven acres of land and a house. Defendant had ATVs, and took rides with plaintiff’s wife and son, giving them instructions about how to drive safely and what areas to avoid. Plaintiff “neither asked for nor received the same detailed instructions from [defendant].” While riding and following his wife, who was driving another ATV, plaintiff’s ATV flipped and landed on top of him, causing severe injuries.

Plaintiff filed a negligence suit, alleging that defendant was “liable to them for negligence as a result of failing to properly instruct [plaintiff] on how to operate the ATV and by failing to warn [plaintiff] of dangerous and concealed conditions on his property that were known to [defendant].” Defendant filed a motion for summary judgment, arguing that the Tennessee Recreational Use Statute (TRUS), Tenn. Code Ann. § 70-7-101 et. seq., barred recovery by plaintiff. The trial court granted summary judgment, finding that pursuant to the TRUS, defendant owed no duty to plaintiff, and the Court of Appeals affirmed.

Tenn. Code Ann. § 70-7-102 states:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as…off-road vehicle riding…and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

March 16, 2016

Premises Case Rejected on Summary Judgment

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

In Fuller v. Banks, No. W2015-01001-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2016), plaintiff filed a premises liability action based on a fall she sustained when the railing on the stairs at her rental home gave way. Plaintiff had been leasing the premises for almost a year, and the stairs were located outside her front door. Anytime plaintiff went outside the front of her home, she used these stairs and rail. She had used the stairs multiple times a day for the 11 months she had lived there, and even used the stairs at least two times on the day of the fall. Plaintiff had never noticed or reported a problem with the stairs to defendant landlord.

According to plaintiff, after she fell “she noticed loose bricks lying on the ground around her,” which she claimed were part of the railing’s foundation. After the fall, defendant sent a licensed contractor to repair the railing, and this contractor testified that he “did not find any loose bricks,” that “he made no repairs to the brick foundation,” and that there were no signs of rotting. Upon inspection, the contractor saw markings that made him believe the post supporting the railing had been hit by a vehicle.

The trial court granted summary judgment to defendant, finding that plaintiff’s “evidence is insufficient to establish an essential element of [her] claim, that being that [she] suffered an injury resulting from an unsafe or dangerous condition of the leased premises that was in existence at the date of the lease.” The trial court found that defendant had successfully negated proof that a defect was present when the lease was executed, and the Court of Appeals affirmed.

March 7, 2016

Property Owner Not Liable Where Another Entity Operated Clinic

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

In Choate ex rel. Clayton v. Vanderbilt Univ., No. M2014-00630-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), the Court of Appeals affirmed summary judgment for a property owner when a patient was injured while attempting to get on a scale at a dialysis clinic.

Plaintiff was the decedent patient’s former spouse and brought the action on behalf of the patient’s minor child. Patient was suffering from end-stage renal disease and receiving dialysis treatments three times each week. His treatments were at the Vanderbilt Dialysis Clinic, but although Vanderbilt University owned the building and property, the clinic was operated by Bio-Medical Applications of Tennessee, Inc. Patient had been going to this clinic for several years.

When patient arrived on the day at issue, he arrived in a wheelchair and a Bio-Medical employee assisted him with his admission. Patients are weighed before dialysis can begin, but patient asked to go to the restroom first. A Bio-Medical employee wheeled patient to the restroom and told him to use the call string inside to let her know when he was finished. After not hearing from the patient for ten minutes, the employee checked on the patient and again reiterated that he should use the call string when finished. When the patient finished using the restroom, he left the area and asked the facility secretary to show him into the treatment area. She took him to an isolation room and instructed him to wait there for his patient care technician to come get him. Patient disregarded these instructions and left the room alone.

February 29, 2016

Trip Over Three-Inch Threshold Presents Question for Jury

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

In Brown v. Mercer-Defriese, No. E2015-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), plaintiff was touring a home that she was considering renting when she tripped over a threshold/step. The threshold joined two rooms in the house, and the elevation difference from one floor to the other was three inches. The flooring in one room was tile, while the adjoining room was hardwood and the threshold itself was wood, but the evidence suggested that the flooring was all very similar in color.

Plaintiff had already traversed the threshold once, but testified that she did not notice the elevation change at that time, and that when she was traversing it a second time she did not notice the threshold and tripped, suffering serious injuries. Plaintiff brought this premises liability action, alleging that this step constituted an unreasonably dangerous condition. Plaintiff stressed the similarity in color between the two adjoining floors, and noted that the fall occurred when it was getting darker outside and thus more difficult to see. Plaintiff’s expert testified that the step in question was a “tripping hazard” due to its height and the fact that the entire area was essentially the same color. He further testified that the Consumer Product Safety Commission “has determined that stairs, ramps and landings are among the most hazardous consumer products in the United States, and classified a step with a riser less than 6.25 inches high as high risk.” (internal quotations omitted).

In response, the defendants asserted that the threshold was open and obvious and that it did not violate the relevant building code. Defendants also alleged that the threshold was a stair, which is a “common feature in homes and…not inherently dangerous[.]” (citation omitted). Defendants called two experts to testify, and both stressed that the threshold did not violate building code, but one admitted that he believed the step to be a “trip hazard.”

February 5, 2016

Slip and Fall Case Dismissed WhenTestimony and Other Evidence Did Not Align

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

In Willis v. McDonald’s Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff’s inability to prove the cause of her fall proved fatal to her premises liability action. Plaintiff and her husband entered a McDonald’s restaurant that they had been to several times. Husband sat at a table while plaintiff went to the counter to order. After ordering, she walked to the drink station and prepared two large drinks, then walked past the service counter toward her husband, at which time she slipped and fell, spilling the liquid and ice from the drinks she was holding on the floor.

Plaintiff claimed that a “sharp object” and/or “hard object” caused her fall, as she said she felt it through her shoe immediately before slipping. She believed it was a piece of ice, but had no proof of that assertion. No such object was identified before the fall, and after the fall plaintiff’s own ice was covering the area. The restaurant in question had tile flooring, and there was a non-skid surface in front of the service counter. At the time of plaintiff’s fall, there was a French fry on one corner of the non-skid surface, which plaintiff stepped over shortly before falling. Plaintiff also pointed out that an employee found a straw wrapper on the floor soon after her fall, and that employees allegedly tracked grease from the kitchen to the service area of the restaurant. A security camera captured plaintiff’s fall and showed that on the day of the incident, “placards were placed throughout the restaurant…to alert patrons of possible slippery conditions.”

Defendant moved for summary judgment, asserting that “plaintiffs could not identify the cause of her fall and that she could not establish that Defendant created the dangerous condition that caused the fall or that Defendant had any knowledge, either actual or constructive, of the dangerous condition prior to the fall.” The trial court granted summary judgment, which the Court of Appeals affirmed.

February 1, 2016

Summary Judgment Affirmed Where Dog Had Never Bitten Anyone Before

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

In 2007, the Tennessee legislature enacted Tenn. Code Ann. § 44-8-413, which addresses injuries caused by dogs. This statute draws a distinction between (1) injuries caused by a dog “running at large” and (2) injuries caused by a dog on its owner’s property. For the latter group, the statute provides that “the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensity,” and a recent case gave the Tennessee Court of Appeals its first opportunity to interpret this language.

In Moore v. Gaut, No. E2015-00340-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2015), plaintiff went to defendant’s house to service a satellite dish. Defendant had a great dane fenced in his backyard. According to plaintiff, he was greeted by defendant’s father, who told him that the dog was “gentle” and “jovial” and encouraged him to greet the dog. Plaintiff alleged that when he went to get tools out of his vehicle, which was parked next to the fence, the dog “jumped up, leaned over the fence and bit [his] face.” Plaintiff filed suit against defendant dog owner.

Defendant moved for summary judgment, which he supported with an affidavit stating that his dog “was in a fenced-in area of his backyard” and that the “dog [had] never bitten anyone or attacked anyone.” In response, plaintiff filed his own affidavit detailing the incident and reiterating that he was never warned that the dog might act aggressively. The trial court held that “the undisputed facts established that there had been no previous history of the dog biting, attacking, or acting aggressively.” Instead, the trial court ruled that the evidence showed the opposite—that the dog had never bitten or attacked anyone, and that there was no evidence it had engaged in playful behavior that could be dangerous. Finding that there was no evidence to “put the defendant on notice that the dog was dangerous,” summary judgment was granted to defendant, which the Court of Appeals affirmed.

January 22, 2016

Curb Cut for Wheelchair Ramp Held Not To Be “Dangerous Condition”

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

In Steele v. Primehealth Med. Center, P.C., No. W2015-00056-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2015), the Tennessee Court of Appeals affirmed summary judgment for defendant in a premises liability case, “concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk [at issue] was unreasonably dangerous.”

Plaintiff was an office supply store delivery person, and he was making his first delivery to defendants’ building. The building was owned by one defendant and occupied by another defendant, a medical center. In front of the entrance, the sidewalk had a curb-cut for a wheelchair ramp. One side of the cut sloped down to the incline, but the other side did not slope and instead had a “single step riser approximately 5 inches high.” The ramp, the lower landing, and the curb cut were lighter in color than the surrounding concrete sidewalk, but there were no particular markings. While plaintiff was pulling his dolly down the sidewalk to make a delivery and “looking straight ahead toward the entrance as he walked,” he stepped off the single step riser and broke his leg.

Plaintiff brought this premises liability action, alleging that defendants “fail[ed] to either make the condition safe or warn others of the dangerous condition by appropriate warning signs.” Defendants filed a motion for summary judgment supported primarily by expert testimony. Defendant’s expert stated that the sidewalk in question met all building codes, was inspected and approved by city officials, and that it was “similar in detail to figures shown in the 1999 North Carolina Accessibility Code.” Further, defendant building owner testified that there had been no other incidents between the 2001 construction of the building and sidewalk and this litigation.