§62.6 Open and Obvious

The Case: Coln v. City of Savannah , 966 S.W.2d 34 (Tenn. 1998).

The Basic Facts: In these two premises liability cases, the Tennessee Supreme Court considered "whether and to what extent the traditional open and obvious rule eliminating a landowner's duty to one injured as a result of an open and obvious danger continues to be viable after the adoption of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)." 966 S.W.2d at 36 (footnote omitted).

The Bottom Line:

• "In premises liability cases, application of duty principles resulted in imposing a duty on an owner or possessor or premises to exercise reasonable care under the circumstances to a guest (licensee) or business invitee. The duty includes the responsibility of either removing or warning against any latent or hidden dangerous condition on the premises of which one was aware or should have been aware through the exercise of reasonable diligence. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Smith v. Inman Realty Co., 846 S.W.2d 819, 823 (Tenn. App. 1992)." Id. at 40 (footnote omitted).
• "Because the rationale for the imposition of this duty was partly the 'owner's superior knowledge of a perilous condition on his premises,' a rule of no-liability also was derived: that a premises owner has no liability for injuries sustained from dangers that were 'obvious, reasonably apparent, or as well known to the invitee [or licensee] as to the owner.' Kendall Oil Co. v. Payne, 41 Tenn. App. 201, 293 S.W.2d 40, 42 (1955); see also McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). In many jurisdictions, this so-called 'open and obvious' rule was frequently explained in terms of duty, that is, a defendant has no duty to warn or protect against a known or obvious danger. Other jurisdictions analogized the open and obvious rule to contributory negligence or assumption of risk, doctrines that also barred a plaintiff's recovery for negligence. See Keeton, Personal Injuries Resulting From Open and Obvious Conditions, 100 U. Pa. L. Rev. 629 (1952). Regardless of the terminology, the result was the same: no recovery." Id.
• "Despite its traditional application by many courts, the open and obvious doctrine was widely criticized for producing arbitrary results and being 'wrong in policy.' James, Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L.J. 605, 628 (1954)." Id.
• "In addition to these criticisms, the adoption of comparative fault principles led numerous jurisdictions to reconsider the open and obvious rule and to conclude that it should not automatically preclude recovery." Id. at 41 (footnote omitted).
• "Nearly every jurisdiction has also relied upon the [RESTATEMENT (SECOND) OF TORTS], § 343A, which states the rule as follows:

  (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

  (Emphasis added). The word ''known' denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves,' and the word ''obvious' means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.' [RESTATEMENT (SECOND) OF TORTS], § 343A (comment b). The [Restatement] further provides that the premises owner's duty exists if the harm can or should be anticipated notwithstanding the known or obvious danger:

  Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.

  [RESTATEMENT (SECOND) OF TORTS], § 343A (comment f)." Id.
• "Although a few courts have held that comparative fault principles abrogate the open and obvious rule entirely, the majority follow the [Restatement] position and recognize that duty remains a necessary part of the analysis." Id. at 41-42 (footnote omitted).
• "We agree with the rationale of the majority of courts which have limited or restricted the traditional 'open and obvious' rule in favor of the [Restatement] approach. We also agree that attempting to analyze the duty issue simply by labeling some conditions 'open and obvious,' without consideration of any surrounding circumstances, promotes arbitrary and inconsistent results. Moreover, the open and obvious rule is inconsistent with our cases which analyze duty by balancing foreseeability and gravity of harm with feasibility and availability of alternatives that would have avoided the harm." Id. at 42.
• "We deem the [Restatement] approach to be the better reasoned and more persuasive analysis. The principles stated in the [Restatement (Second) of Torts], § 343A relate directly to foreseeability and facilitate consideration of the duty issue. Whether the danger was known and appreciated by the plaintiff, whether the risk was obvious to a person exercising reasonable perception, intelligence, and judgment, and whether there was some other reason for the defendant to foresee the harm, are all relevant considerations that provide more balance and insight to the analysis than merely labeling a particular risk 'open and obvious.' In sum, the analysis recognizes that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on a defendant, despite its potentially open and obvious nature." Id.
• "Accordingly, while we restrict the once broad application of the 'open and obvious' doctrine, we stress that duty remains a separate component of a plaintiff's negligence action. As we said in Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996), 'our adoption of the principles of comparative fault did not alter the analysis applicable to the common law concept of duty ... and it is beyond dispute that duty is a question of law for the trial court's determination.' Thus, only after a duty is established does comparative fault come into play." Id.
• "We believe our analysis is consistent with other post-McIntyre cases. In Perez v. McConkey, supra, we addressed the effect of comparative fault on the assumption of risk doctrine which, like contributory negligence, had traditionally barred a plaintiff's recovery. After discussing the several distinct types of assumed risks, e.g., express or implied, we held that a plaintiff's primary implied assumption 43 of risk, in which a plaintiff assumes a known risk that is inherent in a particular activity, such as watching a baseball game from an unscreened seat, should continue to be analyzed in terms of duty. Conversely, secondary implied assumption of risk, in which a plaintiff unreasonably or reasonably confronts a known risk, should be considered under comparative negligence principles:

  [T]he reasonableness of a party's conduct in confronting a risk should be determined under the principles of comparative fault. Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk.

  872 S.W.2d at 905." Id. at 42-43.
• "We also think our analysis is consistent with Eaton v. McLain, supra. There, a guest in the defendants' home awoke during the night and fell while trying to descend a stairway in the dark. The jury allocated 40 percent of the negligence to the guest and 60 percent to the homeowners. Although we cited the traditional rule that the defendant has no duty to warn against a danger that is open and obvious, we did so in the context of the specific facts of that case. Our analysis of the duty issue under the facts of the case was consistent with the above principles:

  As indicated in [Doe v. Linder, supra,] the question of whether the [defendants'] general duty of care encompasses the duty to guard against the acts set forth in the complaint involves an analysis of the foreseeability of the risk to which [the plaintiff] was exposed. In other words, the issue is whether [the plaintiff] has made 'any showing from which it can be said that the defendants reasonably knew or should have known of the probability of an occurrence such as the one which caused [her] injuries.' Id.

  Eaton, 891 S.W.2d at 594 (italics in original). Although we concluded that, under the specific facts of the Eaton case, no duty should be imposed, our holding recognized that the result could easily have been different and a duty could have been imposed:

  In order for the [defendants] to be charged with the duty to leave on the light in the hall and to lock the basement door, they must have been able to reasonably foresee that [the plaintiff] would get out of bed in total darkness, walk across the hall, and step into the basement stairwell, all without turning on any lighting whatsoever. While our holding would likely be different if no lighting had been provided or if it had been inoperative, [the plaintiff's] failure to turn on any lights, coupled with her willingness to open the door and step into an unfamiliar area is such a radical departure from reasonable conduct under the circumstances that the [defendants] could not have reasonably foreseen that conduct and its consequences.

  Id. at 594. Accordingly, although we cited the 'open and obvious' rule, we did not label the dark stairwell an open and obvious danger and then hold that no duty should be imposed; instead, the duty question was analyzed with respect to the traditional components of foreseeability and risk of harm as applied to the facts of the case. Id. at 594." Id. at 43.
• "To summarize, we join those jurisdictions that have limited the open and obvious doctrine in favor of the [Restatement] approach. That a danger to the plaintiff was 'open or obvious' does not, ipso facto, relieve a defendant of a duty of care. Instead, 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. The factors provided in the [RESTATEMENT (SECOND) OF TORTS], § 343A relate directly to the foreseeability question; in short, if the foreseeability and gravity of harm posed from a defendant's conduct, even if 'open and obvious,' outweighed the burden on the defendant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care. The circumstances of the case are then analyzed under comparative fault." Id.

Other Sources of Note: Restatement (Second) of Torts § 343A.

Recent Cases: Waddell v/ Greenelawn Memory Gardens , No. E2008-02522-COA-R3-CV, 2009 WL 2877290 (Tenn. Ct. App. Sept. 8, 2009) (finding trial court erred in focusing on foreseeability of injury to plaintiff rather than defendant and reversing summary judgment finding trial court failed to take into account duty of landowner to remove or warn against latent dangerous condition); Masters v. Wal-Mart Stores East, L.P., No. M2008-02752-COA-R3-CV, 2009 WL 2868750 (Tenn. Ct. App. Sept. 1, 2009) (reversing summary judgment for defendant finding store manager who provided affidavit was not present when plaintiff passed through area and had no way of knowing whether "Caution - Wet Floor" sign was visible to the plaintiff just before falling on wet floor); Jones v. Jenkins, No. M2008-01911-COA-R3-CV, 2009 WL 1871868 (Tenn. Ct. App. Jun. 29, 2009) (affirming summary judgment finding no duty on part of landlord arising out of "open and obvious" condition); Freemon v. Logan's Roadhouse, Inc., No. M2007-01796-COA-R3-CV, 2009 WL 499471 (Tenn. Ct. App. Feb. 25, 2009) (reversing summary judgment in premises liability case finding that although existence of peanuts on restaurant floor may have been open and obvious where defendant encouraged patrons to discard peanut shells on the floor, that did not dictate finding that plaintiff was fifty percent or more at fault); Sanders v. CB Richard Ellis, Inc., No. W2007-02805-COA-R3-CV, 2008 WL 4366124 (Tenn. Ct. App. Sept. 22, 2008) (upholding trial court's grant of summary judgment in premises liability case finding plaintiff ignored open and obvious danger of icy parking lot when walking into bank instead of using drive-through window and that a reasonable person would have avoided the risk).