§62.1 Generally

The Case: Coln v. City of Savannah , 966 S.W.2d 34 (Tenn. 1998), overruled on other grounds by Cross v. City of Memphis, 20 S.W.3d 642, 644 (Tenn. 2000).

The Basic Facts: In this consolidated case, Plaintiffs, who tripped over a deviation between a brick pavers and sidewalk in front of city hall in one case and fell in hole in a deck in another, filed premises liability action against the property owners.

The Bottom Line:

• "In each of these premises liability cases, the plaintiff contends that the open and obvious rule does not preclude finding a duty owed by the defendant landowner and that an open and obvious danger is merely a factor for consideration in determining comparative fault under McIntyre v. Balentine. The landowner defendants in both cases maintain that the rule is intact: that there is no duty of care when an open and obvious condition results in injury to the plaintiff. The City of Savannah in Coln also contends that the plaintiff was at least 50 percent negligent, barring recovery under comparative fault. The Court of Appeals' analysis in each case reflects the conflicting views about duty and comparative fault it has expressed in a series of its unpublished decisions.^FN5

  FN5 The Court initially indicated that the open and obvious rule was subsumed by comparative fault principles. Broyles v. City of Knoxville,[ No. 03A01-9505-CV-00166, 1995 WL 511904 (Tenn. Ct. App. Aug. 30, 1995)]; Cooperwood v. Kroger Food Stores Inc., [No. 02A01-9308-CV-00182, 1994 WL 725217 (Tenn. Ct. App., W.S., Dec. 30, 1994)]. Subsequent decisions indicated that the open and obvious rule was not changed by McIntyre's adoption of comparative fault. Tracy v. Exxon Corp., [No. 02A01-9512-CV-00277, 1996 WL 741876 (Tenn. Ct. App. Dec. 31, 1996)]; Jones v. Exxon Corp., 940 S.W.2d 69 [(Tenn. Ct. App. 1996)]; Shope v. Radio Shack, No. 03A01-9508-CV-00288, 1995 WL 733885 (Tenn. Ct. App. Dec. 7, 1995)."

  966 S.W.2d at 39.
• "We granted and consolidated these appeals to resolve the conflicting views and to determine the viability of the 'open and obvious' rule after McIntyre; specifically, whether an 'open and obvious' condition relieves a defendant's duty of care or whether it merely is considered in assessing the comparative fault of the parties." Id.
• "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, § 343(A)] 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.
• "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, § 343(A)] 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. at 43.
• "We reject the defendants' contentions that restriction of the open and obvious danger rule will preclude the trial court from applying mechanisms such as summary judgment and directed verdict to evaluate cases. By retaining the separate analysis of duty, and not totally subsuming all cases by applying comparative fault, the mechanisms of summary judgment and directed verdict remain viable to evaluate cases at preliminary stages in the proceedings. A summary judgment remains appropriate, for example, where the plaintiff has not produced sufficient evidence to meet the 'duty' component, or any other component of a negligence claim, as a matter of law. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993). A directed verdict, on the other hand, remains appropriate if the court evaluates the evidence in a light most favorable to the plaintiff and determines that reasonable minds could not differ in finding that the fault of the plaintiff was equal to or greater than the fault of the defendant. Eaton, 891 S.W.2d at 590." Id. at 43-44.
• "CONCURRING OPINION BY HOLDER, J. Although I concur in the results, I write separately because of my disagreement with this Court's expansive use of the term 'duty.' This Court has properly, in my opinion, used a duty analysis to determine that class of people to whom reasonable care must be exercised. See, e.g., Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993). In my opinion, however, this Court has also improperly used a duty analysis to determine whether a party has failed to use reasonable care. See, e.g., Eaton v. McCLain, 891 S.W.2d 587 (Tenn. 1994)." Id. at 46.
• "This Court, however, has followed the lead of jurisdictions that have expanded the use of a duty analysis in premises liability cases. The majority states:

  The analysis, therefore, as in any negligence case, is first upon duty in accordance with the foreseeability and gravity of harm, and the feasibility and availability of alternatives; if a duty is imposed, then the surrounding circumstances are analyzed under the principles of comparative fault."

  Id . at 46-47.
• "I have no quarrel with an examination of foreseeability and the gravity of harm to determine whether a duty exists. Where I begin to differ with the majority is in the examination of the following factors as part of the analysis of duty: 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. These factors are more properly considered by the trier of fact in determining whether a duty has been breached." Id. at 47.
• "The existence of a duty should not be confused with a breach of that duty. See Shaw v. Petersen, [821 P.2d 220, 222 (Ariz. Ct. App. 1991)] (holding that whether a hazard is open and obvious is not relevant to determine the existence of duty, rather it is relevant to determining if the duty was breached). I would permit a jury to decide if a risk is unreasonable. Klopp v. Wackenhut Corp., 824 P.2d 293, 298 (N.M. 1992) (holding that it is for the jury to decide in virtually every case whether a dangerous condition on the premises involved an unreasonable risk of danger and whether the occupier should reasonably anticipate that the visitor will not discover or realize the 'obvious' danger)." Id.
• "Unlike the majority of this Court, I would find that the doctrine of 'open and obvious' has been subsumed into the comparative fault scheme. Once a duty is found to exist as to the class of persons to which the plaintiff belongs, the obviousness of the danger and the plaintiff's confrontation of that danger would be but two additional factors for the jury to consider in determining the parties' percentages of fault. Only if reasonable minds could not differ should a motion for summary judgment or directed verdict be granted. See Hertelendy v. Agway Ins. Co., [501 N.W.2d 903, 908 (Wis. Ct. App. 1993)] (holding that the application of open and obvious danger doctrine amounts to a determination that the plaintiff's negligence in confronting an open and obvious danger exceeds the defendant's negligence as a matter of law)." Id.

Other Sources of Note: Hale v. Ostrow , 166 S.W.3d 713 (Tenn. 2005) (landowner owed duty to care to plaintiff to ensure that the sidewalk was not obscured by overgrown bushes and was passable); Rice v. Sabir, 979 S.W.2d 305 (Tenn. 1998) (homeowner owed no duty of care to warn contractor of mildew on roof); Friedenstab v. Short, 174 S.W.3d 217 (Tenn. Ct. App. 2004) (homeowner did not owe housekeeper duty to warn of presence of newspapers on stairs; housekeeper slipped on newspapers and fell).

Recent Cases: 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); Lawrence v. HCA Health Services of Tennessee, Inc., No. M2007-01128-COA-R3-CV, 2008 WL 3451799 (Tenn. Ct. App. Aug. 12, 2008) (holding major tenant of building in which plaintiff was injured owed no duty to plaintiff because it was merely a tenant and not the owner of the premises; further holding ingress/egress principal did not apply giving rise to a duty because plaintiff was in building for purposes of visiting another tenant; further holding even assuming defendant owed duty to plaintiff, 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); Sugg v. Mapco Express, Inc., No. M2007-01503-COA-R3-CV, 2008 WL 2695666 (Tenn. Ct. App. Jul. 9, 2008) (upholding summary judgment finding plaintiff could not establish essential elements of claim); Elrod v. Continental Apartments, No. M2007-01117-COA-R3-CV, 2008 WL 425947 (Tenn Ct. App. Feb. 13, 2008) (holding that reasonable minds could not differ that plaintiff's fault for slip and fall on icy parking lot was greater than defendant apartment complex and its owner); Stewart v. Seton Corp., No. M2007-00715-COA-R3-CV, 2008 WL 426458 (Tenn. Ct. App. Feb. 12, 2008) (affirming trial court's grant of summary judgment in favor of defendant hospital and holding that there are no disputed facts that (1) there was no evidence of an unsafe, dangerous, or defective condition, (2) the condition of the curb was "open and obvious," and (3) that plaintiff could not establish that her injury was foreseeable or the feasibility of alternative conduct); Walker v. Collegetown Mobile Estates, Inc., No. E2007-01153-COA-R3-CV, 2008 WL 220276 (Tenn. Ct. App. Jan. 28, 2008) (vacating trial court's grant of summary judgment, holding that a genuine issue of material fact exists as to whether defendant knew or should have known of the allegedly dangerous condition and failed to remedy it); Collins v. Arnold, No. M2004-02513-COA-R3-CV, 2007 WL 4146025 (Tenn. Ct. App. Nov. 17, 2007) perm. appeal denied (Apr. 14, 2008) (reversing jury verdict because jury was not instructed as to the conditions for liability under an assumed, rather than imposed, duty of care as established in Section 324A of the [RESTATEMENT OF TORTS]); Carter v. Bell, No. E2006-02671-COA-R3-CV, 2007 WL 2323396 (Tenn. Ct. App. Aug. 15, 2007) (holding that the defendant pharmacist who initiated a romantic relationship with a customer was liable when defendant's wife assaulted customer finding defendant owed the plaintiff a duty of ordinary care as the owner or occupier of the premises, that there was material evidence that the defendant breached this duty, and that there was material evidence that the negligence of the defendant and the actions of his wife caused the expenses and injuries for which the plaintiff was awarded compensation); Curry v. City of Howenwald, 223 S.W.3d 289 (Tenn. Ct. App. 2007) perm. appeal denied (May 14, 2007) (reversing dismissal of action finding that defendant city could not escape liability in premises liability action based on landowner's knowledge of defective water meter on property; the city should have anticipated an unreasonable risk of harm despite the landowner's knowledge because there was good reason to expect the landowner might forget the existence of the water meter and it was the city's duty to maintain the water meter and not the landowner; finding evidence preponderates against trial court's allocation of fault equally between party and instead allocating 75% fault to city and 25 % fault to landowner); Tate v. Champion, No. E2006-01033-COA-R3-CV, 2007 WL 1259208 (Tenn. Ct. App. Apr. 30, 2007) (finding that the landlord owed a duty of reasonable care to the tenant; that the landlord did not affirmatively negate an essential element of tenant's proof, i.e., the landlord's duty of care to the tenant; and, thus, summary judgment was inappropriate); Pittenger v. Ruby Tuesday, Inc., No. M2006-00266-COA-R3CV, 2007 WL 935713 (Tenn. Ct. App. Mar. 28, 2007) (holding that (1) plaintiffs failed to show that restaurant breached any duty to patron, and (2) plaintiffs failed to establish that the building code imposed an obligation on defendant); Oliver v. Prologis Trust, No. W2006-00584-COA-R3-CV, 2006 WL 3731211 (Tenn. Ct. App. Dec. 19, 2006) perm. appeal denied (May 21, 2007) (holding that premises owner owed no duty to prevent independent contractor from hiring plaintiff, and finding facts of case did not fall under any exception to general rule that premises owner is not liable for negligence of independent contractor).