Premises Liability

March 31, 2017

Fitness Facility Had No Duty to Use AED on Injured Patron

In Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV (Tenn. Dec. 22, 2016), the Tennessee Supreme Court analyzed claims against the seller of an AED, and though the claims were framed in the context of the decedent being a third-party beneficiary of the contract between the seller and owner of the AED, the Court engaged in quite a bit of analysis surrounding the duties implicated by the sale and/or ownership of an AED.

In 2008, defendant church had purchased four AEDs from defendant ExtendLife, one of which one placed in a fitness facility owned and operated by the church. When the church purchased the machines, they also purchased the Physician Oversight Program Management System, which outlined certain services that ExtendLife would provide to the church. In addition, as part of the purchase, ExtendLife provided four complimentary training sessions for CPR, AED and Emergency Oxygen Administration certifications. The church utilized three of these four sessions, but the final session was cancelled due to low attendance.

More than two years later, in January 2011, plaintiff and her husband joined the church’s fitness facility. In August of that year, the husband took a cycling class and then collapsed. The class instructor attended to the husband, thinking he was suffering from a seizure, and she was eventually assisted by two off-duty police personnel who were at the facility. These men asked the instructor to retrieve the nearest AED, which she did, but the machine was not used on husband. An ambulance arrived shortly thereafter and transported husband to the hospital, where he died.

March 30, 2017

Tennessee Slip and Fall Case Fails Without Proof of Causation

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

In Lurks v. City of Newbern, Tennessee, No. W2016-01532-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2017), the Court of Appeals reminded us once again that evidence of a fall is not enough to establish liability in a slip and fall premises liability case.

Here, plaintiff was walking on a city-owned and maintained sidewalk outside her home. She walked this sidewalk often, as she and her husband owned a vacant lot next to her home as well as a rental property on the same street. According to her testimony, she was aware that the sidewalk was in poor condition and had complained to the city. On this particular day, she fell on the sidewalk, sustaining an injury that eventually required knee surgery.

At trial, plaintiff testified that “she fell immediately, that she did not stumble and fall, and that she did not know what caused her to fall or whether her foot hit anything that caused her to fall.” As there were no witnesses to plaintiff’s fall, “there was no testimony at all by anyone regarding what caused [plaintiff] to fall.” The trial court ruled that the sidewalk was in fact defective, but that the case should be dismissed because “there was no proof as to the cause of [plaintiff’s] fall,” and the Court of Appeals affirmed.

March 26, 2017

Contractual Waivers and Medical Expense Recovery by Minors

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

In Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016-00447-COA-R9-CV (Tenn. Ct. App. Jan. 9, 2017), the Court of Appeals addressed the issue of whether parents in Tennessee may “bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements,” affirming the existing common law rule such agreements were not enforceable against a child when signed by a parent. The Court also discussed whether a minor had the right to seek recovery of medical expenses in a personal injury case.

Mother took her son to defendant trampoline park, and on their first visit mother was required to sign a “Customer Release of Liability and Assumption of Risk.” This form purported to waive liability for any injury on behalf of both mother and son, and it contained a choice of law provision naming California law as governing the agreement as well as a forum selection provision stating that litigation would be brought in California. The release stated that it would be effective until the son was eighteen. At a later visit, son was injured, and son and mother both brought this action against defendant trampoline park in the Davidson County Circuit Court.

Defendant filed a motion to enforce the contract in the trial court, arguing that the claims had been waived and that the case had to be brought in California and governed by California law. Mother voluntarily dismissed her claim against defendant, and the trial court subsequently denied defendant’s motion to enforce the contract. The trial court found that “neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has ‘a more significant relationship to the facts surrounding this case.’” The trial court also held that the liability waiver did not operate to waive son’s claims, as “such a contract is not permissible in Tennessee.” In a lengthy decision, the Court of Appeals ultimately affirmed all three of these holdings.

February 20, 2017

Maury County Fall Down Case Falls Down. Hard.

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

Not every fall results in a successful premises liability case, as the plaintiffs in a recent Tennessee Court of Appeals case were reminded.

In Woodgett v. Vaughan, No. M2016-00250-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2016), plaintiff filed suit after falling while she was viewing defendants’ home, which was listed for sale. Plaintiff’s husband was a realtor, so he contacted the listing agent about viewing defendants’ home. Defendants had already moved out and removed all of their belongings, so plaintiff and her husband were allowed to view the home on their own. In the upstairs bonus room there was a door that led to the attic access. The landing that accessed the attic was raised, so defendants had hired someone to build a wooden box to use as a step to get to the landing. The step was made with two-by-twelves, measured 9.5 inches high, 39 inches wide and 10.75 inches deep, and was covered with carpet. The step could be moved out of the way and was not affixed to the landing, as it was sometimes moved to accommodate furniture passing through the area. Defendants had “used the step for twenty years without incident.” According to plaintiff, when she used the step while viewing the home, it “gave way” and made her fall.

February 14, 2017

Tennessee’s “Rule of Sevens” Applied to Dismiss Case

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

Citing the Rule of Sevens, the Court of Appeals recently affirmed a finding that a 13-year-old was solely responsible for his injury when he fell on the bleachers at his school.

In Crockett v. Sumner County Board of Educ., No. M2015-02227-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), injured plaintiff and his parents sued his school after he fell on bleachers in the gym. Plaintiff was attending summer school, and the day before his injury someone had intentionally caused flooding in a boys’ bathroom. Because no one would confess, two coaches had all of the eighth grade boys help clean the bathroom and pick up trash from the bleachers. According to plaintiff, he mopped the bathroom and then was told to begin helping in the bleachers, though the coach supervising the work testified that plaintiff was not told to work in the bleachers after mopping.

At the time of his injury, plaintiff was using the bleacher seats as stairs, rather than using the designated stairway on the bleachers. Plaintiff stated that the coach had left the gym when he fell, but the coach testified that he had left for a couple of minutes to retrieve a dry mop and had returned to the gym by the time of plaintiff’s accident.

During a bench trial, plaintiff testified that “he knew from the time he was a little kid that he was not supposed to use the bleacher seats as steps,” and that such usage could cause injury. He further testified that he “just wasn’t thinking about it” at the time of the accident. Two coaches from his school testified that they had told the students on many occasions not to use the seats as steps but to instead use the designated steps, which had non-slip material on them.

February 12, 2017

Tennessee Slip And Fall Case Dismissed

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

In Miller v. Jackson-Madison County General Hospital District, No. W2016-01170-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2016), the Tennessee Court of Appeals affirmed summary judgment in a slip and fall case based on a lack of proof of notice of the dangerous condition.

Plaintiff was visiting her brother at defendant hospital when she left his room to find a nurse. In the hallway, she allegedly slipped and fell in water and injured herself, which was the basis for this premises liability suit. According to plaintiff’s trial testimony, she did not see anything on the floor before she fell, but after her fall she noticed a “trail of water [that] led to a food cart against the wall in the hallway.” Plaintiff did not inspect the cart, and she “did not know whether the water was leaking from the food cart or had been spilled near it.” She also did not know how long the water had been there or whether any hospital employees knew about the water.

After a bench trial, the trial court “found the evidence insufficient to demonstrate that the Hospital or its employees caused or had actual or constructive notice of the water on the floor prior to [plaintiff’s] fall,” and thus entered judgment for defendant. The Court of Appeals affirmed this decision.

December 22, 2016

Open and Obvious Danger Not Automatic Bar to Fall-Down Claim

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

In Matherne v. West, No. E2015-02061-COA-R3-CV (Tenn. Ct. App. Oct. 28, 2016), the Tennessee Court of Appeals overturned summary judgment in a premises liability case notwithstanding a claimed “open and obvious” danger.

Plaintiff’s family was renting a cabin in the mountains from defendants. The pictures online showed that the cabin had two parking spaces, one being elevated several feet along a slope from the other. A safety rail went around a portion of the upper parking space but did not cover the entire drop-off area. On plaintiff’s second day at the cabin, she was stepping out of her vehicle after buckling her daughter into a the car when her first foot landed on the concrete but her second foot did not, causing her to fall onto the lower parking area and injure her arm.

Plaintiff filed suit, and defendants moved for summary judgment, which the trial court granted. In its findings of fact, the trial court noted that plaintiff had seen the two separate parking levels and knew about them; that she saw that the rail covered only a portion of the upper space; that she had told the children in her family not to play on the upper parking space, as they could fall and be injured, and had asked her husband to park on that space to prevent the children from playing there; that it was light when she fell; that nothing prevented her from having someone back the car off the parking space before entering it; that the parked car was approximately three to three and a half feet from the edge of the drop-off; and that there was sufficient room for her to get into and out of the car without falling. The trial court concluded that “plaintiff had absolute and actual knowledge of the potentially dangerous condition,” that the condition was “open and obvious,” and that plaintiff “was at least 50% at fault for her fall and any injuries allegedly sustained therefrom.”

On appeal, the Court overturned the trial court, reversing the grant of summary judgment. The Court quoted extensively from several Supreme Court decisions, noting that “an owner…of premises has a duty to exercise reasonable care with regard to…business invitees on the premises,” and that a Supreme Court decision “held that a duty may exist even where the injury-causing condition is alleged to be ‘open and obvious’ to the plaintiff.” (quoting Rice v. Sabir, 979 S.W.2d 305 (Tenn. 1998)). In Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), the Supreme Court stated:

October 26, 2016

Tennessee Jury Verdict More Than 40 Times Medical Expenses Affirmed

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

In Glasgow v. K-VA-T Food Stores, Inc., No. E2015-01653-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2016), the Court of Appeals affirmed a jury award in the full amount of compensatory damages sought by a Tennessee premises liability plaintiff.

While using the restroom in a grocery store, plaintiff lost his balance while standing up. He grabbed the handrail, which pulled out of the wall, causing him to fall and hit his head. Plaintiff presented testimony from himself and a doctor who had treated him both before and after the incident, as well as a deposition from the neurologist he saw after the fall. Plaintiff presented evidence that since the fall, he had experienced migraines and light sensitivity. He testified that this affected his life in several ways. He had to abandon his 14-year career in television production and instead go into radio because of his light sensitivity. Plaintiff asserted that the migraines were “debilitating, requiring him to ‘get out of the light’ and stay in a dark, cool space until the pain subsides.” Plaintiff admitted at trial that he was “not actively seeking treatment from a physician for his migraines and that he currently use[d] over-the-counter medication to treat his condition.”

At trial, the parties stipulated that plaintiff’s medical expenses were $5,310 and that he had a life expectancy of 38.36 years.

September 26, 2016

Tennessee GTLA Claim Regarding Water Meter Hole Not a Premises Liability Case

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

In Fowler v. City of Memphis, No. W2015-01637-COA-R3-CV (Tenn. Ct. App. Aug. 11, 2016), the Court of Appeals analyzed a case falling under the GTLA, ultimately holding that while plaintiff appeared to be making a premises liability claim, the case actually fell under a different provision of the Act.

Plaintiff was injured when he fell into an uncovered water meter in a sidewalk near his home. Plaintiff filed suit against various entities, but the one at issue on this appeal was Memphis Light, Gas, and Water. “According to the complaint the uncovered water meter was a dangerous condition of which [defendant] had actual and constructive knowledge.”

Defendant filed a motion for summary judgment, arguing that it “had no notice that the water meter box cover had been tampered with or that a dangerous condition existed at the location of [plaintiff’s] fall.” Defendant asserted that the water meter at issue had been taken out of service in 2007, and a cover had been put over it.

September 15, 2016

Property Owner Can Owe a Duty to Volunteers Roofers

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

In Reynolds v. Rich, No. E2015-01245-COA-R3-CV (Tenn. Ct. App. July 22, 2016), the Court of Appeals overturned summary judgment in a negligence case, finding that defendants did owe plaintiff a duty and that there were genuine issues of material fact regarding whether defendants breached that duty.

Defendant father gifted a piece of land to defendant daughter, and the father had taken charge of building a house on the land for the daughter. Defendants tried to secure as much labor as possible through family, friends and volunteers. Defendant father worked with plaintiff at the same company and had known plaintiff “for a number of years.” Father knew that plaintiff had previously re-roofed his own house with metal roofing, so he “asked plaintiff if he would like to help in view of his prior experience in installing such roofing on his own residence, and he agreed.” Plaintiff was not paid for this work, and while he and others were installing the roofing, plaintiff fell and suffered extremely serious injuries. Plaintiff then brought this negligence action.

Defendant father submitted an affidavit that stated that he asked all the volunteers, including plaintiff, whether they had any reservations about the job, and that none voiced any concerns. He averred that he offered plaintiff gloves, but that plaintiff refused, and that he told plaintiff he should stand on the felt material instead of the metal when affixing the metal roofing, but that plaintiff said his shoes were providing good traction. According to the father, “plaintiff did not request any assistance, tools, equipment, harness, rope, scaffold, support, any type of restraint or anything else.” Defendant stated that he did not know what made plaintiff fall, and plaintiff likewise stated that he could not identify the cause of his fall.