Articles Posted in Premises Liability

In a recent premises liability case, the Tennessee Court of Appeals overturned a trial court decision for plaintiff on the basis of lack of actual or constructive notice of a dangerous condition, a key element in any premises liability case. In Barkley v. Shelby Co. Board of Educ., No. W2014-00417-COA-R3-CV (Tenn. Ct. App. March 18, 2015), plaintiff, a grandmother, visited an elementary school attended by two of her grandchildren. While there, she slipped and fell near a hand washing station in the hallway. Plaintiff alleged that there was water on the floor, and that such water was the cause of her fall.

Because the school was operated by the Shelby County Board of Education, this action fell under the Governmental Tort Liability Act (“GTLA”). The trial court found defendant liable, though it did reduce plaintiff’s award pursuant to comparative fault findings. On appeal, one issue raised by defendant was whether the trial court erred by not finding defendant immune from suit under the GTLA. The Court of Appeals, however, did not get that far, instead focusing solely on the issue of lack of notice.

Under the GTLA, a plaintiff making a premises liability claim must prove that “(1) the governmental entity owns and controls the location or instrumentality alleged to have caused the injury; (2) a dangerous, defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the governmental entity had actual or constructive notice of the dangerous condition; and (4) the governmental entity breached either its duty to eliminate the condition or its duty to warn of the condition.” Here, the Court stated that there was conflicting evidence regarding whether there was water on the floor causing the fall or whether plaintiff’s shoes caused her to fall and drop a cup of water she was holding, which accounted for the water on the floor. Either way, the Court summarily determined that, regarding actual notice, there was “no evidence in support of a determination that the Board had notice of water on the floor at or near the location of [plaintiff’s] fall, sufficient either to remove its immunity or to otherwise establish liability.”

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         In Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015) we have a rather typical trip and fall case – one similar to that Tennessee personal injury lawyers  are called about quite frequently.

          Ms. Holland  sued defendant property owner for injuries incurred when she fell over a curb in a parking lot. The parking lot in question was used for two businesses, a grocery store and a bank, and the two properties were divided by a continuous curb. This curb was unmarked and had weeds growing around it, but was clearly visible. Its purpose was to keep cars parked at the grocery store from driving into the drive-through area of the bank. Plaintiff and her husband parked perpendicular to the curb at the edge of the grocery store parking lot. After shopping in the grocery store, plaintiff was stepping backward while opening the passenger door and tripped on the curb, falling to the ground.

            Defendant filed a motion for summary judgment, which the trial court granted. The trial court stated that defendant “had no duty to warn plaintiff of the curb when the curb at issue was open and obvious and when it was not reasonably foreseeable that plaintiff would walk backward without looking and trip and fall over the curb.” Further, the trial court found that a reasonable jury would have to conclude that plaintiff was 50 percent or more at fault for her injuries. The Court of Appeals affirmed judgment for the defendant.

          In Akridge v. Fathom, No. E2014-0071-COA-R9-CV (Tenn. Ct. App. Jan. 7, 2015), plaintiffs filed a premises liability action after being injured in a shooting that occurred just outside defendants’ business. Defendants operated a music venue/club targeted to at-risk youth including gang members. Plaintiffs attended a public event there on Christmas Eve, and during the event some of the attendees wore gang colors and an altercation broke out inside the building. Defendants’ security personnel stopped the event and made everyone, including plaintiffs, leave the building. Upon exiting, plaintiffs were “caught in the crossfire of a shootout” and were injured.

            Defendants moved to dismiss the complaint, arguing that they only owned and occupied the building and that the tortious conduct alleged happened outside the building. Thus, defendants argued, they could not be held liable. Plaintiffs responded that defendants had a duty to operate their business in a reasonably safe manner and that such duty had been violated. Because both parties submitted materials outside the pleadings, the motion was converted to one for summary judgment, which the trial court denied. The trial court found that since the shooting occurred just steps outside defendants’ business and since defendants’ employees had made plaintiffs exit the building into this foreseeably dangerous situation, liability could exist. On interlocutory appeal, however, the Court of Appeals overturned this ruling.

            The key issue in this case was whether “defendants owed a duty of care to plaintiffs, who were injured by the criminal acts of third parties that occurred outside the premises occupied by [one defendant] and owned by [two others].” The Court of Appeals recognized that a special relationship giving rise to a “duty to control the conduct of a third party so as to prevent the third party from causing harm” may exist in a factual scenario such as this, where plaintiffs were invitees of defendants who held premises open to the public. Where the Court of Appeals disagreed with the trial court, however, was regarding whether “such a duty continued once the invitees exited defendants’ business premises.” The Court stated that there was no Tennessee precedent for extending a business owners’ duty of care to its patrons after the patrons left the premises.

In Hannah v. Sherwood Forest Rentals, LLC, No. E2014-00082-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2014), plaintiff filed a premises liability action against a cabin rental company and the cabin owners. Plaintiff, a guest at the cabin, alleged that she arrived at a rental cabin after dark, ascended the stairs to the front door, then later descended the same stairs to retrieve her luggage. On her way down the stairs, plaintiff fell and injured both feet and ankles when, according to plaintiff, “the bottom fell out” of one of the stairs. The next day, plaintiff and her family found that several stairs had “improperly seated nails fastening the top of the step” and that one of the stairs rocked forward when stepped on in a particular spot.

Defendants filed a motion for summary judgment, which the trial court granted on the basis that there was no genuine issue of material fact by which a reasonable jury could find that defendants had actual or constructive notice of any alleged dangerous condition. The Court of Appeals affirmed.

Defendants presented evidence that there had been no prior or subsequent reports of problems with the stairs; that the maintenance staff inspected the cabin at least monthly and had not seen a problem; that the housekeeping staff cleaned the cabin prior to plaintiff’s family checking in and did not see a problem with the stairs; and that the owners had not seen any problem with the stairs or received any report of such a problem during their frequent visits to the cabin.

Tthis is a premise liability case arising from the collapse of a bench in a handicap shower at the defendant’s hotel.   Upon checking into their handicap room at the Holiday Inn Express, the Parkers noticed the bench in the handicap shower appeared to be loose.  The brackets were pulled away from the wall a bit and the bench itself was shaky when pressed on.   The Parkers reported the problem, and the hotel’s maintenance man tightened the bolts.  Both the maintenance man and the Parkers testified the tightening of the bolts on the bracket appeared to fix the problem as the bench was no longer wobbly and the brackets were flush with the wall. 

The next morning, Mr. Parker transferred himself from his wheelchair on to the shower bench.  Approximately 10 minutes into his shower, the bench collapsed and Mr. Parker struck the floor.  Ultimately, Mr. Parker was diagnosed with compression fractures at T-7, T-8 and T-9.  Mr. Parker also alleged that as a result of the fall and his spinal injuries that he suffered more frequent and more severe pressure sores, urinary tract infections and bladder pain. 

The Parkers filed suit against Holiday Inn Express.  The hotel answered and alleged the comparative fault of D & S Builders.  D & S Builders had constructed the hotel and had installed the shower benches in the handicap rooms of the hotel.   D & S Builders was dismissed due to the four year statute of repose for negligent construction claims.  In this case, the certificate of occupancy had been issued on July 31, 2006 and suit was not filed until May of 2011. 

In the recent premises liability opinion of Wolfe v. Felts, Jr. No. W2013-01995-COA-R3-CV (Tenn. Ct. App. May 29, 2014), the court of appeals affirmed a trial court’s decision to grant directed verdict in favor of defendants in a case where plaintiff fell on ice that had formed in front of defendants’ building after the building’s sprinkler system had activated during freezing temperatures.

The plaintiff in Wolfe did not argue, as is customary in most premises cases, that defendants had actual or constructive knowledge of the dangerous condition (the sprinkler system operating in freezing temperatures). Instead, plaintiff argued that defendants had created the dangerous condition by negligently failing to properly manage the sprinkler system. Tennessee law holds that a plaintiff is not required to prove that a premises owner had prior notice of a dangerous condition if the premises owner created the condition that caused plaintiff’s injury.

However, according to the appellate court, plaintiff’s case failed because there was no evidence as to what constituted proper sprinkler management or maintenance so as to establish that improper sprinkler management or maintenance had caused the sprinkler to malfunction.

This is a slip and fall case. The plaintiff was engaged to the defendants’ daughter.   On multiple occasions, the defendants had hosted the plaintiff at their lake home for extended visits. In the summer of 2010, the plaintiff was again the invited guest of the defendants. Shortly before his visit, the power company had cut down numerous trees and bushes on the property but failed to remove them. In an effort to make himself useful, the plaintiff began helping his fiance’s mother remove the brush and trees. While performing the work, the plaintiff slipped on a large rock on the ground and fell and broke his arm in two places. The following facts were not in dispute:

·        The plaintiff had worked in that area for two or three days before the fall.

·        The accident occurred in the daylight.

Knowledge of inadequate lighting was enough to create a jury issue of dangerous condition in  Christian v. Ayers L.P. d/b/a Ms. Lassie’s Lodge, No. E2013-00401-COA-R3-CV (Tenn. Ct. App. March 28, 2014), according to the Eastern Section of the Tennessee Court of Appeals.

Plaintiff attended an event for “Relay for Life” sponsored by the American Cancer Society at defendant owned Ms. Lassie’s Lodge. When plaintiff left the event between 6:30 and 7:00 p.m., it was dark outside. Plaintiff testified that she had trouble seeing the ground and walked slowly with extra caution to her car in the parking area adjacent to the lodge. There was no lighting on the walkway or in the parking area. Plaintiff fell mid-stride after her left foot went down further than her right foot near the edge of the walkway. She suffered a four-part humerus fracture and incurred $52,000 in medical expenses after hospitalization and surgery.

Owner’s representative and partner testified that she had opened and closed the lodge that evening. Upon arriving, owner’s representative flipped “some switches” and became aware that the lights on the walkway and in the parking lot were not on, causing her to look unsuccessfully for the switch for the outside lights. She was then told that there was no switch and the lights should come on automatically. It was later determined by workers after plaintiff’s fall that multiple exterior bulbs, including the lights in question, were burned out.