Premises Liability

November 4, 2021

Summary Judgment Based on Tennessee Recreational Use Statute Affirmed.

Where a minor child was injured while playing on a playground at a state park, and after the incident a park ranger admitted that the mulch under the playground was not thick enough but no prior notice of the mulch condition had been shown, plaintiff had not proven gross negligence to overcome the immunity afforded to the State under the Tennessee Recreational Use Statute. In Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021), plaintiffs’ minor child had gone camping with her grandparents at a state park. While there, the child went with her grandmother to play on a playground, and the child fell off the playground, fracturing her arm. The grandparents took pictures of the area the day after the fall, and plaintiffs filed suit, alleging that the “injury was due to inadequate mulch or padding on the playground.”

Plaintiffs’ complaint asserted claims for negligence, gross negligence, and gross negligence per se. After discovery, the State filed a motion for summary judgment, which the Claims Commissioner granted on two grounds. First, the Claims Commissioner ruled that the claim was “barred by § 70-7-102(a) of Tennessee’s Recreational Use Statute, which protects landowners, including the State of Tennessee, from responsibility for injury to recreational visitors.” The Commissioner further found that the gross negligence exception to the Recreational Use Statute did not apply here. Second, the Commissioner ruled that “Plaintiffs failed to establish an essential element of their claim under § 9-8-307(a)(1)(C) of the Claims Commission Act, that the proper state official had been given prior notice of the playground’s condition.” On appeal, summary judgment for the State was affirmed.

August 24, 2021

Summary judgment reversed where evidence showed city inspected culvert that collapsed the day before the accident and recommended imminent replacement

by The Law Offices of John Day, P.C.

Where plaintiff was injured in a car accident when a culvert underneath the road collapsed, and an inspector for defendant city had inspected the culvert the day before the accident and recommended construction begin just three days later to replace the culvert, summary judgment for defendant was reversed. In Carrick v. City of Shelbyville, Tennessee, No. M2020-01218-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2021), plaintiff was driving down a road owned and controlled by defendant city when a culvert under the road “gave way and the asphalt crumbled,” and plaintiff’s “vehicle became lodged in the resultant hole.” Plaintiff brought this suit under the GTLA, asserting that the city’s immunity was removed pursuant to Tenn. Code Ann. § 29-20-203. The city filed a motion for summary judgment, arguing that plaintiff could not show that it had actual or constructive notice of the dangerous condition, and the trial court agreed, granting summary judgment. On appeal, that ruling was reversed.

It was undisputed that the city had the culvert inspected by Mr. Frazier on August 29, 2017, one day before the accident, and that as a result of that inspection, Mr. Frazier created a work order stating that work to replace the culvert would begin on September 1, 2017. The work order further provided that “the dig area will be through the road as we will replace the culvert.” In addition to the work order, the city submitted Mr. Frazier’s affidavit in support of summary judgment, in which he stated that “while the culvert needed replacing, he did not conclude from his inspection that the culvert posed ‘any threat to the stability or integrity of the road.’” The city also submitted affidavits stating that there had been “no previous complaints or reports regarding damage to the relevant portion” of the road.

August 18, 2021

Premises liability summary judgment affirmed based on insufficient evidence of causation.

by The Law Offices of John Day, P.C.

Where plaintiff filed a premises liability claim against the State asserting that decedent’s death was caused by injuries he sustained when he fell off a sidewalk that constituted a dangerous condition, but plaintiff could not “show that the condition of the sidewalk more likely than not caused” the fall, summary judgment for defendant was affirmed.

In O’Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021), decedent was admitted to the Tennessee State Veterans’ Home after suffering a stroke. He was in a wheelchair, but was “alert, oriented, and able to communicate with staff.” While spending time outside just two days after his admission, decedent “fell outside the facility entrance” and “suffered serious injuries and tragically died five days later.”

Plaintiff filed this case with the Claims Commission as administrator of decedent’s estate, “alleging that the State negligently created or maintained a dangerous condition on the property.” Plaintiff asserted that decedent was “fatally injured after his wheelchair fell off the sidewalk in front of the facility entrance,” and that the height of the sidewalk combined with the “lack of sufficient markings or barriers at the edge of the sidewalk created a dangerous condition.”

February 9, 2021

Summary judgment for defendant overturned where plaintiff slipped in flooded restroom.

by The Law Offices of John Day, P.C.

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.”

November 30, 2020

Dismissal Based on Lack of Foreseeability Reversed.

by The Law Offices of John Day, P.C.

Where plaintiffs, who were suing on behalf of an employee of an independent contractor on a construction project, alleged facts sufficient to meet the “minimum threshold of foreseeability” against the defendant general contractor, and where discovery had not yet occurred to allow for the inspection of the contracts between the relevant parties, dismissal of plaintiffs’ wrongful death claim against the general contractor was reversed.

In Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020), plaintiffs were the decedent’s children, who had died while working as a plumber on a construction project. The project involved building a new gym for Welch College, and before the decedent’s involvement in the project, a different plumping company had laid a sewer line. The day before the gym was scheduled to be used for the first time, general contractor Southland Constructors discovered that the sewer line had not actually been connected to the building before it was buried. Southland then called Mitchell Plumbing, the decedent’s employer, and the decedent was sent to connect the pipe. According to the complaint, Southland advised Mitchell Plumbing that the trench dug to correct the problem would be about 15 feet long and 3 feet deep, but it ended up being both longer and deeper. The complaint alleged that no materials were used to shore up the trench based on the representations made by Southland, that the general contractors failed to have traffic stopped at a nearby parking lot, and that the “soil in the area was in an especially dangerous condition because it was wet and loose due to the previous excavation.” Soon after the decedent got into the trench to repair the sewer line, the walls collapsed, and he was killed.

November 12, 2020

Summary judgment affirmed where plaintiff knew about leak before she slipped.

by The Law Offices of John Day, P.C.

Where a residential tenant and property owner both knew about a leak which formed a puddle of water that caused plaintiff to slip, defendants property owner and property manager were not liable for plaintiff’s injuries and summary judgment was affirmed.

In Richardson v. H & J Properties, LLC, No. W2019-02082-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2020), plaintiff moved into a triplex apartment owned and operated by defendants in March 2014. In the following months, she reported leaks in her laundry room and adjoining room several times. On September 10, 2014, she again reported a leak in this area of her apartment. The next day, a maintenance worker was sent to the apartment to repair the leak, and while plaintiff was showing him the issue, she slipped and fell in a “small pool of water” that had been caused by the leak, breaking her ankle.

July 21, 2020

Chairs stacked on top of table not a dangerous condition

by The Law Offices of John Day, P.C.

Where a middle school student was injured when he tripped on his backpack strap, beginning a chain of events that knocked down a chair that was stacked on top of a table and injured his hand, summary judgment was affirmed based the lack of a dangerous condition and the injury not being foreseeable.

In Landry v. Sumner County Board of Education, No. M2019-01696-COA-R3-CV (Tenn. Ct. App. June 30, 2020), plaintiff was an 11-year-old student sitting with friends in his school cafeteria as he waited for the bell to ring to begin the school day. At this school, the chairs were always placed upside down on the top of the tables the day before so the custodians could clean. In the mornings, the kids would take down a chair to sit. On this particular morning, plaintiff’s backpack strap had unknowingly become wrapped around the leg of his chair. When plaintiff stood to leave, he tripped on the strap. As he fell, he pushed his chair away, and that chair hit a chair that was still upside down on a table. The upside down chair fell and hit plaintiff’s hand, severing the tip of one of his fingers.

July 20, 2020

No duty to remove snow from parking lot while snow is still falling.

by The Law Offices of John Day, P.C.

Where plaintiff slipped on ice in a hotel parking lot during a snowstorm, summary judgment for defendant hotel was affirmed.

In Chittenden v. BRE/LQ Properties, LLC, No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020), plaintiff checked into defendant hotel during a snowfall that had already produced two inches of snow on the ground. It was still snowing when plaintiff went to his hotel room. When plaintiff left his room fifteen minutes later, it was still snowing, and he slipped in the parking lot. Plaintiff brought this premises liability action, and the trial court granted summary judgment, which was affirmed on appeal.

June 24, 2020

Jury Verdict Finding Plaintiff 77% at Fault Vacated

by The Law Offices of John Day, P.C.

Where defendant introduced no material evidence at trial to support a finding that plaintiff was 77% at fault for a fall cased by a faulty automatic door, the jury’s verdict was vacated.

In Gilmore v. NOL, LLC A/K/A Premier Radiology, No. M2019-01308-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiff* was an 84-year-old physical therapy patient. When she was exiting defendant’s building after her physical therapy appointment, “the automatic door closed while she was standing just outside the threshold of the doorway,” causing her to fall and break her arm and leg.

Plaintiff filed a negligence and premises liability suit against defendant, and defendant asserted the defense of comparative fault in its answer. After a jury trial, the jury returned a verdict finding plaintiff 77% at fault and defendant 23% at fault, meaning that plaintiff did not recover any damages. Plaintiff filed a motion for a new trial, which the trial court denied. On appeal, plaintiff asserted that the trial court used the wrong standard in its role as thirteenth juror and that there was no evidence to support the comparative fault finding.

June 19, 2020

Summary Judgment for Convenience Store Reversed in Slip-and-File Case

by The Law Offices of John Day, P.C.

Where a premises liability plaintiff produced photographs showing possibly damp conditions around a gas pump where she fell, testified that the EMTs who arrived to help her slipped, and relied on an incident report stating that the store was “not for sure if it was slick from oil or gas,” plaintiff had shown that there were genuine issues of material fact and summary judgment for defendant was reversed.

In Wilson v. Weigel Stores, Inc., No. E2019-00605-COA-R3-CV (Tenn. Cr. App. May 19, 2020), plaintiff was fueling her car at defendant convenience store. As she stepped towards her car to get trash out, she slipped and fell. Two EMTs came to help plaintiff, and the manager at the store took photos of the area, completed an incident report, and wrote down another customer’s contact information who had witnessed the incident.

Plaintiff filed this premises liability case, and plaintiff, the EMTs, the store manager, and an HR representative from defendant were deposed. Plaintiff testified that her foot slipped, though she admitted that “she did not see any oil, gas, or spills before or after her fall…” Plaintiff also claimed that the two EMTs “both slipped and almost fell while tending to her.”