Day on Torts
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.”
Plaintiff initially filed suit in the general sessions court, which entered a judgment in favor of defendant. Plaintiff appealed to the circuit court, which granted defendant summary judgment, finding that defendant owed no duty to plaintiff and that plaintiff was at least 50% at fault for her injuries. This appeal followed, and the Court of Appeals vacated the judgment for defendant.
Plaintiff was proceeding pro se, and she raised several issues regarding the completeness of the record on appeal. The Court ruled against her on all record related issues, noting that summary judgment did not have to be “vacated in the absence of [the trial court] transcript,” and that plaintiff had not satisfied the rules related to additional documents that should be included in the appellate record. Plaintiff also argued that the trial court’s order should be overturned because there was “no way to determine whether the trial court’s oral ruling [was] reflected in the written order.” The Court pointed out, however, that “party-prepared orders are allowed” so long as certain conditions are met, and that here the trial court’s order contained two paragraphs not included in the suggested order drafted by defendant’s counsel, which showed that the trial court had engaged in its own independent judgment.
Moving to the merits of the summary judgment motion, the Court began by noting that defendant did not contest the presence of a dangerous condition here, but instead first argued that “because of the obvious nature of the condition, [plaintiff] cannot prevail on the necessary element of duty.” While an open and obvious danger meant that a premises owner was relieved of liability before Tennessee adopted comparative fault, Tennessee law currently holds that “an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability.” (internal citation omitted). Now, even in cases of open and obvious dangerous conditions, “the duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm.” (internal citation omitted).
Turning to the facts of this particular case, the Court began by determining whether the trial court correctly held that “the water on the floor was in plain sight.” Based on plaintiff’s testimony regarding when she saw the water and when she fell, the Court affirmed this finding, but stated that the open and obvious nature of the water was “not sufficient to end [its] inquiry.” Instead, the Court wrote that it must “consider whether an analysis of the foreseeability and gravity of the harm, as well as other factors, indicate that a duty was owed,” which the trial court failed to do. The Court explained that the trial court’s order failed to mention foreseeability at all, leading the “court to believe that once the trial court concluded that the danger allegedly posed by the water in this case was open and obvious, [the trial court decided that this] fact negated the essential element of duty.” Defendant’s arguments regarding duty were “similarly deficient,” as it “support[ed] its duty argument largely based on case law that was resolved not on the element of duty, but on the question of comparative fault.” (internal citation omitted).
The Court of Appeals stated:
[Defendant] is arguing that it satisfied its duty because so much water had accumulated that the danger to [plaintiff] should have been obvious to her. …[W]e are convinced that [defendant] is arguing that it owed no duty to [plaintiff] to prevent her injury due to the obvious nature of the alleged dangerous condition. …[T]he only discussion of foreseeability by [defendant] is that ‘it was not foreseeable that [plaintiff] would continue to walk into the restroom given the obvious danger.’ We respectfully disagree. The problem with this argument is that it does little more than attempt to resurrect the open and obvious doctrine. …Tennessee courts have likewise rejected similar attempts to argue a somewhat veiled version of the open and obvious doctrine. Indeed, the Tennessee Supreme Court had held that a defendant’s assertion that a plaintiff confronted a known and obvious danger is properly analyzed under the principles of comparative fault, rather than duty.
(internal citations and quotations omitted).
With that background, the Court pointed out that “an individual slipping on a wet floor is a foreseeable danger associated with wet floors in an area open to guests.” Plaintiff here testified that she had an urgent need to use the restroom, and the Court stated that “it is reasonable to expect that guests may suffer the same affliction and thereby be distracted upon entering a restroom.” Further, defendant “presented no argument and no proof to suggest that the burden to engage in alternative conduct was heavy in this case.” The Court noted that defendant neither removed the water nor placed a wet floor sign in the area, and defendant presented no proof as to whether such actions would have been “overly burdensome.” Because defendant “provided no proof to suggest that the harm in this case was unforeseeable, or as to either the gravity of harm or its burden to engage in alternative conduct,” the Court ruled that defendant did not meet its burden in showing that no duty was owed here.
The trial court also granted summary judgment based on comparative fault, finding that plaintiff was at least 50% at fault for her injuries. “Comparative fault is a question of fact within the jury’s province, which should not lightly be invaded by the trial court.” (internal citation and quotation omitted). After reviewing relevant common law, the Court stated that there were “two important considerations” regarding the comparative fault argument: “(1) whether the plaintiff confronted a risk that would have been obvious to a reasonable person, and (2) whether a reasonable alternative was presented to confronting the risk under the circumstances.” Based on plaintiff’s testimony about seeing the water, the Court concluded that factor one was satisfied, so the real issue here was whether plaintiff had a reasonable alternative.
Defendant argued that because there was another restroom, plaintiff had a reasonable alternative to going into the flooded restroom. The Court noted, though, that defendant had presented no evidence regarding how close the other restroom was, and that plaintiff had testified that she urgently needed to use the restroom. In fact, even after falling, plaintiff proceeded to use the restroom before exiting the flooded area. Viewing these facts in the light most favorable to plaintiff, the Court ruled that “reasonable minds could differ as to whether [plaintiff] was presented with a reasonable alternative to using the flooded restroom in this case,” and comparative fault was thus not a valid basis for summary judgment.
Because the Court found that there were issues of fact as to plaintiff’s comparative fault and that defendant had not shown that it had no duty in this case, summary judgment for defendant was vacated.
While the open and obvious nature of an allegedly dangerous condition is still relevant in premises liability cases, the adoption of comparative fault changed the required analysis. This opinion contains a good explanation of how the open and obvious nature of a dangerous condition should now be considered in conjunction with the foreseeability of harm and other relevant factors.
NOTE: This opinion was released two months after oral arguments in this case.