Day on Torts
Where a plaintiff tripped on a crack in a parking lot that was 54 feet long and resulted in a height deviation of no more than 1.5 inches, the property owner owed no duty to plaintiff and summary judgment in a premises liability case was affirmed.
In Shaw v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2018-01157-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), plaintiff was a school bus driver who was required to attend a training session at a local school. Plaintiff parked in a large parking lot at the school, and as she was walking to board a shuttle bus, she tripped on a crack in the pavement. The crack was 54 inches long and “amounted to a deviation of up to one and a half inches.”
Plaintiff filed a premises liability claim, alleging that “the parking lot existed in a state of disrepair and had been in such a state for a sufficient length of time that Metro knew or should have known of its dangerous condition.” Defendant filed a motion for summary judgment, and plaintiff filed a motion to amend and add allegations of negligence per se. The trial court granted summary judgment, and on a first appeal, the Court of Appeals ruled that the trial court improperly “neither ruled upon the pending motion to amend nor undertook analysis…in order to determine whether the sought amendment should have been granted pursuant to Tennessee Rule of Civil Procedure 15.01.” The case was accordingly remanded. On remand, the trial court granted the motion to amend and add negligence per se claims, but then again granted summary judgment to defendant on all claims. The Court of Appeals affirmed.
The Court of Appeals first looked at plaintiff’s negligence per se allegations. “Liability under the negligence per se doctrine can arise when a party fails to perform a duty imposed by statute or ordinance.” (internal citation omitted). In order to utilize a negligence per se theory, two threshold questions must be met: “whether the plaintiff belongs to the class of persons the statute was designed to protect and whether the plaintiff’s injury is of the type that the statute was designed to prevent.” (internal citation omitted). Further considerations for whether a negligence per se claim may be made include “whether the statute clearly defines the prohibited or required conduct.” (internal citation omitted).
Plaintiff put forward two bases for her negligence per se theory. First, she cited a portion of the Metro Code that stated that “all sidewalks, walkways, stairs, driveways, parking spaces, and similar areas shall be kept in a proper state of repair, shall be maintained free from hazardous conditions, and shall be kept in a safe, clean, and sanitary condition.” The Court of Appeals agreed with the trial court that this code provision was not specific enough to support a negligence per se claim, noting that “there is no specific standard of conduct established pursuant to” the cited section.
Plaintiff also relied upon a provision from the American National Standard ICC/ANSI, but that provision was also deemed insufficient to support a negligence per se claim here. The provision in question was “meant to protect individuals with disabilities. Plaintiff has never claimed or set forth proof that she is disabled, therefore [the cited provision] cannot trigger a negligence per se claim” for her.
Having found that summary judgment on plaintiff’s negligence per se claim was appropriate, the Court moved on to her general negligence allegations, noting that the “pivotal question here [was] whether Metro owed [plaintiff] a duty of care under the facts of this case.” While a duty can arise in a premises liability case even when the dangerous condition is open and obvious, the Court of Appeals agreed with the trial court’s ruling that “Metro owed no duty because there was no unreasonable risk of danger connected to the parking lot.” The Court ruled that plaintiff “could have become aware” of the very large crack that created a small deviation “through normal exercise of her senses as it was broad daylight and the lengthy crack was clearly visible.” The Court cited to many cases that “indicate that minor pavement aberrations will not give rise to valid negligence claims,” and ultimately held that “the facts of this case simply do not justify a determination that Metro owed a duty to repair or warn of the minor aberrations of the parking lot’s surface.” The Court wrote that “the parking lot may not be perfectly flat across its area, but common experience suggests that its conditions do not pose any likely danger.” Summary judgment for defendant was thus affirmed.
Parking lot defects can be difficult to prove in Tennessee. Anyone filing a premises liability case based on a dangerous condition in a parking lot needs to be aware of and read this case.