Premises liability summary judgment affirmed where divot complained of was a minor aberration.

Where a premises liability plaintiff tripped when her shoe heel went into a small divot in an outdoor stairway that was “mere centimeters thick,” summary judgment for defendant was affirmed on the basis that the divot “amounted to a minor aberration and…the defendants did not owe her a duty of care.”

In Tino v. Walker, No. M2021-01230-COA-R3-CV, 2022 WL 2794096 (Tenn. Ct. App. July 18, 2022), plaintiff was shopping at a shopping center area in Nashville. After leaving one store, she exited down a set of outdoor brick stairs, and the heel of her shoe caught in a small divot in the brick on the second-to-last step, causing her to fall.

Plaintiff filed this premises liability suit, and defendants filed a motion for summary judgment. The trial court granted summary judgment to defendants, finding that “because the defects complained of were small aberrations, the foreseeability and gravity of harm considerations [did] not support a finding of liability on the part of Defendants,” and the Court of Appeals affirmed.

In Tennessee premises liability cases, “the foreseeability factor has taken on paramount importance…” (internal citation omitted). The Tennessee Supreme Court has stated that “foreseeability is so important that if an injury could not have been reasonably foreseen, a duty does not arise even if causation-in-fact has been established.” (internal citation omitted).

In granting summary judgment, the trial court noted that the divot plaintiff fell on was a “minor aberration,” “an inconsequential divot or depression” that was “mere centimeters thick.” The court further pointed out that thousands of people had walked this area before without incident. The Court of Appeals agreed that these factors supported summary judgment, noting that Tennessee’s “High Court and this Court have long held that a minor defect or deviation in a stairway or walkway is insufficient to impose a duty upon a premises owner to warn of or repair the defect if injury is not reasonably foreseeable.” (internal citations omitted).

Plaintiff argued that defendant’s knowledge that the stairs were somewhat uneven created an issue of fact, but the Court disagreed. After noting that the stairs had been in the same condition for almost 40 years, that no one had voiced any concerns about the stairs, and that the photo submitted by plaintiff showed that the divot was extremely small, the Court explained:

On appeal, Plaintiff largely relies on the fact that the unevenness of the step was the cause-in-fact of her fall and injury. …However, we cannot presume negligence or reasonable foreseeability of future harm from the mere fact that an injury has occurred. …[A]s noted above, courts of this state have repeatedly held that minor defects or aberrations in stairways or walkways do not constitute actionable negligence. There must be more than a possibility of harm or injury arising from a defect for courts of this state to impose a duty of care upon the premises owner. Rather, there must be some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it. Mr. Walker’s admissions that the bricks in the step were not completely level neither indicated the severity of the divot nor whether it was reasonably foreseeable that the divot would likely cause injury or harm. Here, based on the deposition testimony and the photograph evincing a minor divot in the brick step, we cannot determine that this minor defect created anything more than a possible risk of injury or harm to guests….Here, no duty to warn of or repair the defect arose inasmuch as it was not reasonably foreseeable that the minor defect in brickwork would likely cause an injury.

(internal citations and quotations omitted). Summary judgment was accordingly affirmed.

This case is an important reminder that evidence of an injury is not enough to prove a premises liability case. Anyone litigating a case involving a small defect in a public stairway or walkway should read this opinion and be aware of the opinions cited therein.

This opinion was released 2.5 months after the case was assigned on briefs.

Note:  Chapter 89, Section 1 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

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