Articles Posted in Premises Liability

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.

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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.”

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Where a grocery store lessee was not responsible for maintaining its parking lot under its lease, but it had repeatedly exercised control over the parking lot area where plaintiff fell, the Court of Appeals found that it had “assumed a duty to maintain the parking lot[.]”

In Jones v. Earth Fare, Inc., No. E2019-00450-COA-R3-CV (Tenn. Ct. App. April 15, 2020), plaintiff slipped and fell in a puddle of antifreeze in defendant grocery store’s parking lot. Another customer had previously fallen in the same puddle and informed the manager on duty, who came out to see the puddle. The manager then went back inside the store to get cat litter to put on the puddle, but she stopped to help another employee. During this time, plaintiff exited the store and slipped in the large puddle of antifreeze.

Plaintiff filed this premises liability case against several defendants, including defendant grocery store. The grocery store filed a motion for summary judgment, asserting that “it had no legal or contractual duty to maintain the area where [plaintiff] fell” and that parking lot maintenance was the responsibility of its landlord. The trial court granted the motion for summary judgment, but the Court of Appeals reversed.

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Where plaintiff alleged that a magazine stand at a grocery store checkout was a dangerous condition, but she had no evidence regarding how long the condition had existed and no proof that the magazine stand had caused any other falls, summary judgment for defendant was affirmed.

In Lyon v. Castle Retail Group, LLC, No. W2019-00405-COA-R3-CV (Tenn. Ct. App. April 14, 2020), plaintiff filed a pro se premises liability action after falling in defendant’s grocery store. Plaintiff alleged that the metal foot of a magazine display rack was “protruding from the base of [the rack] in the checkout area,” and that she caught her foot on the metal, causing her to fall. After plaintiff’s fall, her companion returned to the store and took pictures of the magazine rack. He also took pictures of the rack in the years following plaintiff’s fall.

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Where a tenant brought a premises liability claim against a landlord based on a loose piece of wood at the top of stairs inside an apartment, but the evidence showed that the tenant and landlord walked through the apartment before the lease began and neither noticed the allegedly dangerous condition and that plaintiff himself lived in the apartment for a month and a half without becoming aware of the loose wood, summary judgment for the landlord was affirmed.

In Fisher v. Villages at Henley Station, LLC, No. M2018-01990-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2020), plaintiff rented a townhome from defendants. The townhome had been built about eight months before the lease began, and plaintiff was the first resident. Before the lease was signed, plaintiff did a walkthrough of the townhouse with the property manager, and neither of them noticed a problem with the stairs. Plaintiff lived in the home for approximately one and a half months, using the stairs daily with no problem, but then suffered a fall that he alleged was caused by a plank of wood not properly connected at the top of the stairs. The evidence showed that plaintiff had not noticed the issue before his fall and that no other tenants had experienced such an issue.

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Where an independent contractor working at a convenience store had been told that the store had been robbed before, neither the landlord nor the operator of the store were liable when he was injured in an armed robbery.

In Priestas v. Kia Properties, LLC, NO. W.2019-00728-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2019), plaintiff worked as an independent contractor for a convenience store run by one defendant, which was in a property owned by the other defendant. Plaintiff was hired when he stopped at the store one night upon seeing multiple police cars there, and was told there had just been a robbery. Plaintiff was hired to work “a few hours a day to perform tasks such as stocking the store’s coolers and cleaning up inside and outside the store.” The owner told plaintiff that the store “had been burglarized/robbed on several prior occasions,” and plaintiff informed the owner that he would carry a concealed firearm when working. Approximately two months after he began working, plaintiff was shot during a robbery. Plaintiff was attempting to wrestle a gun from an armed robber when the shooting occurred.

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Where plaintiff brought suit against a trucking company based on injuries he received while operating a forklift inside a trailer at the distribution center at which he was employed, summary judgment was appropriate where the defendant trucking company produced records showing that the truck plaintiff was injured in did not belong to it.

In Hashi v. Parkway Xpress, LLC, No. M2018-01469-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2019), plaintiff was a forklift operator employed by a distribution center. While plaintiff was operating a forklift inside the trailer of a tractor-trailer truck, the truck suddenly moved, causing plaintiff to fall to the ground. Plaintiff brought this suit for the injuries he sustained, naming as defendants the trucking company that he alleged owned the truck in question, the freight broker, and the unnamed truck driver.

The trial court granted summary judgment to both the trucking company and the freight broker, and the Court of Appeals affirmed.

Defendant trucking company “argued that summary judgment was appropriate because it was not the owner or operator of the tractor-trailer in which [plaintiff] was working when he was injured.” Defendant trucking company submitted an affidavit from its president stating that the driver in question was not their employee, and that the company’s truck was at the distribution center from 6:00 am to 7:08 am, while the injury occurred at 1:20 in the afternoon. The trucking company also submitted a bill of lading to support its alleged time-frame, as well as incident reports identifying the driver of the truck causing the injury. Based on this evidence the trial court granted summary judgment.

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Where a plaintiff fell down stairs but could not identify what caused his fall, summary judgment should have been granted in a premises liability case.

In Cartee v. Morris, No. M2018-02272-COA-R9-CV (Tenn. Ct. App. Sept. 6, 2019), plaintiff worked for defendant, and part of his job entailed delivering checks to a two-story building that was a residence turned office space. On the day of the fall, plaintiff ascended the main wooden staircase to the second floor offices, and at the top of stairs an employee had placed a dog gate. According to affidavits from employees, the dog gate was not secured to the wall, but was instead simply propped up “so it could be easily moved,” and it was about one and half feet tall. Plaintiff did not recall how he got over the dog gate on his way up the stairs. After delivering the checks, plaintiff fell down the staircase, causing him to be unconscious for two days. Plaintiff did not remember the accident and could not remember what caused his fall. Two employees who were present on the second floor heard the fall, but neither of them witnessed the fall. They both testified that when they went to check on plaintiff after hearing the fall, he and the dog gate were on the landing.

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Where plaintiff was hit by a vehicle exiting a restaurant driveway, and the driveway conformed to all regulations and there had been no previous accidents at the site, the landowner, Premises liability defendants had no duty where driveway complied with all regulations. owner, and franchisee owed no duty to plaintiff.

In Howell v. Nelson Gray Enterprises, No. E2019-00033-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2019), plaintiff was driving his motorcycle on a public highway when he was struck by a car that was exiting a McDonald’s parking lot. Plaintiff brought this premises liability and negligence case against the property owner, the restaurant owner, and the franchisee, arguing that the exit in question was “an unreasonably dangerous condition because it promotes the uncontrolled flow of vehicular traffic into a five-lane undivided highway without traffic control devices or warning signs.” (internal quotation omitted). The trial court granted summary judgment to defendants, finding that they owed no duty to plaintiff, and the Court of Appeals affirmed.

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Where the evidence suggested that a small amount of clear liquid had been on the floor of a grocery store for just a short time, summary judgment for defendant in a Tennessee premises liability case was affirmed.

In Jones v. Publix Supermarket, Inc., No. M2018-01672-COA-R3-CV (Tenn. Ct. App. June 7, 2019), plaintiff was shopping in defendant grocery store. As she rounded the corner towards the seafood department, she slipped on clear liquid. She got up quickly and did not seek assistance, and she refused to fill out an incident report on the day of the accident, but she returned the next day to complete one. She subsequently filed this premises liability action. The trial court granted summary judgment for defendant, finding that plaintiff failed to prove actual or constructive notice of the allegedly dangerous condition, and the Court of Appeals affirmed.

The incident was captured by store cameras, which showed that about two minutes before plaintiff fell, a toddler was in a shopping cart in the same area and was playing with and drinking from a sippy cup. The toddler dropped the sippy cup into the wire cart two times, and defendant argued that this was the likely source of the liquid. In the two minutes between the toddler leaving the area and the plaintiff falling, the video showed several customers walking through the area with no problems, and no store employees coming nearby. During discovery, the store employee who was working in the seafood department that day stated that he was helping a customer at the counter at the time of the incident, but that he heard something happen. He went to the location of plaintiff’s fall around two minutes later, saw “a little bit of water…not a puddle” on the floor, and waited there until another employee brought paper towels to clean the liquid. He testified that prior to the fall, he had seen no liquid in the area.

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