“Open and Obvious” Defect Not Necessarily a Bar to Recovery

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.

After a bench trial, the trial court found for plaintiff, apportioning eighty percent of the fault to defendant and twenty percent to plaintiff. The trial court specifically found that “it was reasonably foreseeable to expect that persons would step onto the barrier as well as walk on the barrier,” that “reasonable precautions” could have been taken by defendant but were not, and that the “drainage cut was a dangerous condition” that was “not open and obvious.” Regarding plaintiff’s comparative fault, the trial court found that plaintiff “was aware of the need to be careful in using the concrete barrier to throw away trash,” but that his “failure to notice the drainage cut…was not the overriding cause of his injuries.” On appeal, this ruling was affirmed.

The only issue raised by defendant on appeal was whether plaintiff should have been found to be at least fifty percent at fault, or in the alternative, more than twenty percent at fault. The Tennessee Supreme Court has identified “six factors that a court should consider in apportioning fault:”

(1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party’s conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another’s life; and (6) the party’s particular capacities, such as age, maturity, training, education, and so forth.

(quoting Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).

Based on these factors, defendant made four arguments regarding why plaintiff should have been attributed more fault. First, defendant argued that “the accident occurred at a location…where [plaintiff] should have exercised heightened care for his own safety, and he failed to do so.” In response, though, plaintiff pointed out that defendant owned and controlled the center and “was in the best position to remedy the danger created by the drainage cuts.” Further, the Court noted that “[i]t is not negligence to fail to look for danger which under the surrounding circumstances [a plaintiff] had no reason to apprehend.” (internal quotation and citation omitted).

Next, defendant argued that plaintiff was “inattentive and failed to take precautions as he walked along the barrier.” Defendant tried to compare this situation with previous cases where plaintiffs were found to be at least fifty percent at fault, but the Court noted that each cited case was distinguishable, largely because the trial court here specifically found that the drainage cuts were “not open and obvious,” and that plaintiff’s “failure to notice the drainage cut…was not the overriding cause of his injuries.”

Third, defendant argued that there was “doubt as to the actual cause of [plaintiff’s] fall.” The Court quickly rejected this argument, noting that the trial court found plaintiff to be a credible witness.

Finally, defendant argued that plaintiff here was more negligent than the plaintiff in the case of Huskey v. Rhea County, No. E2012-02411-COA-R3-CV (Tenn. Ct. App. Sept. 10, 2013), who was found to be 49% at fault. In the Huskey case, the plaintiff had stepped onto a cinderblock wall that varied in height to put trash into a dumpster, and even though she held onto the dumpster, she fell and was injured. The Court pointed out, though, that the Huskey plaintiff “knowingly stepped on uneven cinder blocks, while [plaintiff in this case] had no reason to know of the presence of the drainage cut before he stepped onto the concrete barrier.” In addition, the Huskey plaintiff did not present expert testimony to support her case, whereas plaintiff here had an expert who testified “that the concrete barrier was a foreseeable walkway.”

Having rejected all of defendant’s arguments, the apportionment of fault was affirmed.

The Court was right to affirm the trial court’s apportionment of fault here, especially since it largely hung on the credibility of plaintiff. This case is a good read for anyone dealing with comparative fault issues in a premises liability case.

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