§62.7 Proof of Notice of Dangerous Condition

The Case: Blair v. West Town Mall , 130 S.W.3d 761 (Tenn. 2004).

The Basic Facts: Plaintiff brought premises liability action against a mall for injuries sustained when she slipped on slick oil spots as she exited the mall alleging the defendant mall failed to inspect and maintain the pavement in its parking lots in a reasonably safe condition. Plaintiff alleged, alternatively, that the defendant knew or should have known of the oil spots because the defendant was aware that busses dropped off customers at the area in which she fell and should have removed them.

The Bottom Line:

• "We hold that plaintiffs in premises liability cases in Tennessee may attempt to establish constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence." 130 S.W.3d at 762.
• "Business proprietors are not insurers of their patrons' safety. However, they are required to use due care under all the circumstances. Martin v. Washmaster Auto Ctr., U.S.A, 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996). 'Liability in premises liability cases stems from superior knowledge of the condition of the premises.' McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). In order for an owner or operator of premises to be held liable for negligence in allowing a dangerous or defective condition to exist on its premises, the plaintiff must prove, in addition to the elements of negligence, that: 1) the condition was caused or created by the owner, operator, or his agent, or 2) if the condition was created by someone other than the owner, operator, or his agent, that the owner or operator had actual or constructive notice that the condition existed prior to the accident. Martin v. Washmaster Auto Center, U.S.A, 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996) (citing Ogle v. Winn-Dixie Greenville, Inc., [919 S.W.2d 45, 47 (Tenn. Ct. App. 1995)]; Jones v. Zayre, Inc., [600 S.W.2d 730 ,732 (Tenn. Ct. App. 1980)]). We have previously held that constructive notice can be established by proof that the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition. Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)." Id. at 76.
• "We take this opportunity to hold that in Tennessee, plaintiffs may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This approach focuses directly on a principle firmly established in our case law - that a premises owner's duty to remedy a condition, not directly created by the owner, is based on that owner's actual or constructive knowledge of the existence of the condition. It simply recognizes the logical conclusion that, when a dangerous condition occurs regularly, the premises owner is on constructive notice of the condition's existence. This places a duty on that owner to take reasonable steps to remedy this commonly occurring dangerous condition." Id. at 765-66.
• "Allowing plaintiffs to prove constructive notice in this manner relieves plaintiffs of the difficult burden of showing the duration of a particular occurrence so long as plaintiffs can show that the dangerous condition was part of 'a pattern of conduct, a recurring incident, or a general or continuing condition' such that its presence was reasonably foreseeable to the premises owner.^FN1

  FN1 We wish to note that constructive notice can still be shown by proving that the particular dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition."

  Id . at 766.
• "Method of operation is not a useful title for this theory. The term method of operation suggests that the owner's method of operation, or way of doing business, is a part of the inquiry. But under the theory we now adopt, the owner's way of doing business is not determinative. The question is whether the condition occurs so often that the premises owner is put on constructive notice of its existence. The condition could be caused by the owner's method of operation, by a third party, or by natural forces. A premises owner is put on constructive notice of a dangerous condition that is 'a recurring incident, or a general or continuing condition' regardless of what caused the condition, and regardless of whatever method of operation the owner employs. Certainly there will be cases where the method of operation chosen by the owner creates a dangerous recurring condition. But there is no logical reason to impute constructive notice only in those cases where the condition can be linked to the owner's business activities, so long as a plaintiff can show that the condition was a 'recurring incident or general or continuing condition.'" Id .

Other Sources of Note: Tinsley v. Wal-Mart Stores, Inc ., 155 Fed. Appx. 196, 198 (6th Cir. 2005) (holding that under Blair, Plaintiff must have some evidence that Defendant had constructive notice of repeated spills in the specific location where Plaintiff's accident occurred, and that merely asserting the entire store's floor as the location will not suffice).

Recent Cases: Brownlee v. Gastrointestinal Specialist , P.C., No. W2008-02340-COA-R3-CV, 2009 WL 2601323 (Tenn. Ct. App. Aug. 25, 2009) (reversing summary judgment finding the defendant failed to negate essential elements of existence of dangerous condition and actual or constructive knowledge of the defendant); Perkins v. Big Lots Stores, Inc., No. W2007-02809-COA-R3-CV, 2009 WL 1409706 (Tenn. Ct. App. May 20, 2009) (reversing jury verdict finding no material evidence to support it where defendant store's surveillance video showed another customer inadvertently furling over a corner of the mat twenty-one seconds before the plaintiff tripped and fell on the furled corner); Piana v. Old Town of Jackson, Inc., No. W2007-02832-COA-R3-CV, 2009 WL 302273 (Tenn. Ct. App. Feb. 6, 2009) (affirming summary judgment for one defendant finding that defendant did not have duty to plaintiff in premises liability case where defendant did not own property and finding defendant did not undertake a duty under a maintenance agreement, but finding co-defendant did have a duty to plaintiff arising out of management agreement for property and finding plaintiff presented sufficient evidence to submit to jury issues of whether there existed a dangerous condition and whether co-defendant had notice of the condition); White v. Bi-Lo, LLC, No. M2007-02698-COA-R3-CV, 2008 WL 4415781 (Tenn. Ct. App. Sept. 26, 2008) (affirming summary judgment finding no evidence that grocery store had actual or constructive notice of the dangerous condition); Lawrence v. HCA Health Services of Tennessee, Inc., No. M2007-01128-COA-R3-CV, 2008 WL 3451799 (Tenn. Ct. App. Aug. 12, 2008) (holding plaintiff presented no evidence upon which to conclude that defendant caused or created dangerous condition or that it had actual or constructive notice of a dangerous condition).