Premises Liability

February 29, 2016

Trip Over Three-Inch Threshold Presents Question for Jury

In Brown v. Mercer-Defriese, No. E2015-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), plaintiff was touring a home that she was considering renting when she tripped over a threshold/step. The threshold joined two rooms in the house, and the elevation difference from one floor to the other was three inches. The flooring in one room was tile, while the adjoining room was hardwood and the threshold itself was wood, but the evidence suggested that the flooring was all very similar in color.

Plaintiff had already traversed the threshold once, but testified that she did not notice the elevation change at that time, and that when she was traversing it a second time she did not notice the threshold and tripped, suffering serious injuries. Plaintiff brought this premises liability action, alleging that this step constituted an unreasonably dangerous condition. Plaintiff stressed the similarity in color between the two adjoining floors, and noted that the fall occurred when it was getting darker outside and thus more difficult to see. Plaintiff’s expert testified that the step in question was a “tripping hazard” due to its height and the fact that the entire area was essentially the same color. He further testified that the Consumer Product Safety Commission “has determined that stairs, ramps and landings are among the most hazardous consumer products in the United States, and classified a step with a riser less than 6.25 inches high as high risk.” (internal quotations omitted).

In response, the defendants asserted that the threshold was open and obvious and that it did not violate the relevant building code. Defendants also alleged that the threshold was a stair, which is a “common feature in homes and…not inherently dangerous[.]” (citation omitted). Defendants called two experts to testify, and both stressed that the threshold did not violate building code, but one admitted that he believed the step to be a “trip hazard.”

February 5, 2016

Slip and Fall Case Dismissed WhenTestimony and Other Evidence Did Not Align

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

In Willis v. McDonald’s Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff’s inability to prove the cause of her fall proved fatal to her premises liability action. Plaintiff and her husband entered a McDonald’s restaurant that they had been to several times. Husband sat at a table while plaintiff went to the counter to order. After ordering, she walked to the drink station and prepared two large drinks, then walked past the service counter toward her husband, at which time she slipped and fell, spilling the liquid and ice from the drinks she was holding on the floor.

Plaintiff claimed that a “sharp object” and/or “hard object” caused her fall, as she said she felt it through her shoe immediately before slipping. She believed it was a piece of ice, but had no proof of that assertion. No such object was identified before the fall, and after the fall plaintiff’s own ice was covering the area. The restaurant in question had tile flooring, and there was a non-skid surface in front of the service counter. At the time of plaintiff’s fall, there was a French fry on one corner of the non-skid surface, which plaintiff stepped over shortly before falling. Plaintiff also pointed out that an employee found a straw wrapper on the floor soon after her fall, and that employees allegedly tracked grease from the kitchen to the service area of the restaurant. A security camera captured plaintiff’s fall and showed that on the day of the incident, “placards were placed throughout the restaurant…to alert patrons of possible slippery conditions.”

Defendant moved for summary judgment, asserting that “plaintiffs could not identify the cause of her fall and that she could not establish that Defendant created the dangerous condition that caused the fall or that Defendant had any knowledge, either actual or constructive, of the dangerous condition prior to the fall.” The trial court granted summary judgment, which the Court of Appeals affirmed.

February 1, 2016

Summary Judgment Affirmed Where Dog Had Never Bitten Anyone Before

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

In 2007, the Tennessee legislature enacted Tenn. Code Ann. § 44-8-413, which addresses injuries caused by dogs. This statute draws a distinction between (1) injuries caused by a dog “running at large” and (2) injuries caused by a dog on its owner’s property. For the latter group, the statute provides that “the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensity,” and a recent case gave the Tennessee Court of Appeals its first opportunity to interpret this language.

In Moore v. Gaut, No. E2015-00340-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2015), plaintiff went to defendant’s house to service a satellite dish. Defendant had a great dane fenced in his backyard. According to plaintiff, he was greeted by defendant’s father, who told him that the dog was “gentle” and “jovial” and encouraged him to greet the dog. Plaintiff alleged that when he went to get tools out of his vehicle, which was parked next to the fence, the dog “jumped up, leaned over the fence and bit [his] face.” Plaintiff filed suit against defendant dog owner.

Defendant moved for summary judgment, which he supported with an affidavit stating that his dog “was in a fenced-in area of his backyard” and that the “dog [had] never bitten anyone or attacked anyone.” In response, plaintiff filed his own affidavit detailing the incident and reiterating that he was never warned that the dog might act aggressively. The trial court held that “the undisputed facts established that there had been no previous history of the dog biting, attacking, or acting aggressively.” Instead, the trial court ruled that the evidence showed the opposite—that the dog had never bitten or attacked anyone, and that there was no evidence it had engaged in playful behavior that could be dangerous. Finding that there was no evidence to “put the defendant on notice that the dog was dangerous,” summary judgment was granted to defendant, which the Court of Appeals affirmed.

January 22, 2016

Curb Cut for Wheelchair Ramp Held Not To Be “Dangerous Condition”

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

In Steele v. Primehealth Med. Center, P.C., No. W2015-00056-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2015), the Tennessee Court of Appeals affirmed summary judgment for defendant in a premises liability case, “concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk [at issue] was unreasonably dangerous.”

Plaintiff was an office supply store delivery person, and he was making his first delivery to defendants’ building. The building was owned by one defendant and occupied by another defendant, a medical center. In front of the entrance, the sidewalk had a curb-cut for a wheelchair ramp. One side of the cut sloped down to the incline, but the other side did not slope and instead had a “single step riser approximately 5 inches high.” The ramp, the lower landing, and the curb cut were lighter in color than the surrounding concrete sidewalk, but there were no particular markings. While plaintiff was pulling his dolly down the sidewalk to make a delivery and “looking straight ahead toward the entrance as he walked,” he stepped off the single step riser and broke his leg.

Plaintiff brought this premises liability action, alleging that defendants “fail[ed] to either make the condition safe or warn others of the dangerous condition by appropriate warning signs.” Defendants filed a motion for summary judgment supported primarily by expert testimony. Defendant’s expert stated that the sidewalk in question met all building codes, was inspected and approved by city officials, and that it was “similar in detail to figures shown in the 1999 North Carolina Accessibility Code.” Further, defendant building owner testified that there had been no other incidents between the 2001 construction of the building and sidewalk and this litigation.

December 28, 2015

Hotel’s Holiday Ice Slides Not a “Public Playground”

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

As the holiday season draws to a close, thousands of people have visited Nashville, Tennessee to enjoy the festivities and decorations at Opryland hotel. The Court of Appeals recently affirmed summary judgment against a plaintiff in a negligence case involving the hotel’s holiday ice activity area.

In Hall v. Gaylord Entertainment Co., No. M2014-02221-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2015), plaintiff had gone to the holiday-themed ice exhibit and activity area at Gaylord Opryland hotel with his girlfriend in 2010. This exhibit included four ice slides. While there, plaintiff watched his girlfriend go down slide 3, then climbed the stairs to go down the slide himself. When he stepped from the carpeted landing area to the slide, he slipped and tore his rotator cuff. According to plaintiff, he did not see the rules and warnings posted instructing users to hold the handrails when sitting on the slide because his view was obstructed by guests in front of him. He also testified that he did not see the handrails at the top of the slide, and that he did not see a Gaylord employee on the slide landing or receive any instructions from one.

Plaintiff sued both Gaylord Entertainment (the owner of the hotel) and International Special Attractions (ISA), a company who had worked with Gaylord to design and construct the exhibit, under several theories. Pursuant to the agreement between these two entities, Gaylord provided the initial designs to ISA; ISA evaluated the plans for feasibility and structural integrity; ISA constructed the exhibit; and Gaylord was responsible for staffing the exhibit and placing warnings and rules around the exhibit. After both defendants filed motions for summary judgment, plaintiff eventually conceded that ISA was entitled to summary judgment on his claims for negligent operation, negligent failure to warn, and negligent post-construction inspection. The only remaining claim against ISA was for negligent design.*

In his argument against summary judgment on this claim, plaintiff relied on his expert’s testimony that the slide at issue did not meet “applicable standards and state laws on amusement devices.” Plaintiff’s expert asserted that slide 3 was defective “because it did not comply with the design specification standards of the American Society of Testing Materials (ASTM),” citing two specific sections of this standard that were not followed. These two sections were part of a portion of the standards titled “Standard Consumer Safety Performance Specification for Playground Equipment for Public Use.” At the trial level, the parties spent a great deal of time arguing over whether slide 3 should be considered an “amusement device” under Tennessee law. ISA argued that the slide did not meet the height requirements to be an amusement device, and that therefore the standards relied on by plaintiff were inapplicable under Tennessee law. Plaintiff, on the other hand, asserted that the attraction as a whole was an amusement device and should be evaluated according to the ASTM standards cited.

December 9, 2015

Judge Must Give Basis for Summary Judgment Decision

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

A recent Tennessee premises liability case reiterated that a trial court cannot grant summary judgment “without making findings of fact or stating the legal basis for its decision.” In McEarl v. City of Brownsville, No. W2015-00077-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2015), plaintiff alleged that while walking from a private home to a public parking area maintained by the city, he was injured when he “stepped into a leaf-filled gutter running between the yard and the parking area.” The city moved for summary judgment, which the trial court granted. After asking both parties questions at the hearing, the trial judge stated: “I don’t think—I don’t think the City is responsible here. I’m granting [the defendant’s] motion.” The trial judge instructed defendant to prepare an order, and the order eventually entered contained several findings of fact regarding lack of duty and foreseeability.

On appeal, the Court vacated the order granting summary judgment due to the trial court’s failure to make findings of fact and state a legal basis for its decision before asking the defendant to submit a proposed order. The Court relied on Smith v. UHS v. Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014), where the Tennessee Supreme Court “made clear that Tennessee Rule of Civil Procedure 56.04’s directive that ‘the trial court shall state the legal grounds upon which the court denies or grants the motion which shall be included in the order reflecting the court’s ruling’ is mandatory.” In Smith, “the court concluded that Tenn. R. Civ. P. 56.04 requires the trial court, upon granting or denying a motion for summary judgment, to state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.”

Here, the trial court “provided no factual findings or legal grounds for its decision[.]” The Court of Appeals noted that it was “essentially asked to conduct an archaeological dig into the transcript…in order to determine what the court’s comments and questions indicate about its state of mind during the proceeding.” Finding that it had “no ability to know what the court’s actual grounds were when it made its oral ruling,” the Court of Appeals vacated the order and remanded the case.

August 11, 2015

Evidence of Injury Not Enough to Prove Fall-Down Case

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

In Newcomb v. State, No. M2014-00804-COA-R3-CV (Tenn. Ct. App. June 26, 2015), the Court of Appeals affirmed the Tennessee Claims Commission’s dismissal of a plaintiff’s premises liability action. Plaintiff fell down a flight of stairs in front of a state owned building. It was raining on the day of the injury, and plaintiff asserted that she reached out for the handrail but that it was out of reach. She argued that the handrail started one stair down from the top and that the steps had no nonskid material, both of which made the stairway unsafe.

At the Claims Commission hearing, the State called two witnesses who worked in facility administration at the building to testify. Both witnesses stated that the steps were the main entrance to the building which was used frequently, that any problems with the steps would have been “quickly noticed and corrected,” and that there had been no prior incidents on the steps. Based on this evidence, the Claims Commissioner dismissed plaintiff’s case, concluding that she “failed to prove that the steps and handrail were a dangerous condition or that, assuming they were dangerous, the State knew or should have known that they constituted a dangerous condition.” The Court of Appeals affirmed.

July 10, 2015

Puddle on Floor for Three Minutes Creates Jury Issue on Notice

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

In Beverly v. Hardee’s Food Systems, LLC, No. E2014-02155-COA-R3-CV (Tenn. Ct. App. June 15, 2015), the Court of Appeals overturned summary judgment in a premises liability case based on the plaintiff’s potential ability to prove constructive knowledge of the dangerous condition. Here, plaintiff frequently dined at the restaurant in question. On one particular day, he came in through the side entrance to the restaurant and slipped in a puddle of vomit 19 seconds after entering. Apparently a child had vomited on the floor, and the child’s mother had not cleaned up the vomit or notified any employees. When plaintiff slipped, he was walking towards a table of his companions. These companions had seen or knew about the vomit but had also not notified any employees.

Security footage from the restaurant established that the vomit was on the floor for 3 minutes and 11 seconds before plaintiff fell. It also showed that plaintiff looked at the ground 2 seconds before he fell. The video showed that no employee was in the area of the vomit before the fall, but evidence established that “the service counter was less than 20 feet from where the child vomited and [plaintiff] fell.”

According to testimony from a witness, the vomit was in view of the employees at the service counter and “to anyone walking in the general area.” He said the puddle was approximately 12 to 15 inches in diameter. The manager of the restaurant testified that she did not know when the dining area was last inspected before the fall and that employees were “instructed to serve customers before completing any secondary tasks like cleaning.” The manager stated that employees were supposed to inspect the restaurant hourly or as permitted.

June 26, 2015

Defect in Construction Does Not Stop Statute of Repose From Starting to Run

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

In Tennessee, the construction statute of repose begins to run when a project reaches substantial completion, which is when it can be used for its intended purpose. A flaw in the project will not prevent it from being substantially complete for statute of repose purposes, as recently demonstrated in the case of Raby v. Covenant Health, No. E2014-01399-COA-R3-CV (Tenn. Ct. App. June 9, 2015).*

In Raby, plaintiff worked at Methodist Hospital. The emergency room at the hospital was “substantially completed and opened in February of 2006.” Apparently a portion of lead-lined wall was left out when the radiology facilities were built, and plaintiff’s suit alleged that she was accordingly exposed to excessive radiation. In December 2013 a lead-lined wall was constructed, but during the entire time between 2006 and 2013 the facility was in use as intended. Plaintiff filed her suit in January 2014.

The trial court granted summary judgment to defendants based on the construction statute of repose found in Tenn. Code Ann. § 28-3-202 which requires that actions based on the construction of an improvement to real properly be brought within four years “after substantial completion of such an improvement.” The trial court found that the hospital radiology department was substantially completed in March 2006 when it became “available for its intended use as an emergency room.” Accordingly, the trial court held that plaintiff’s claim was untimely under the statute of repose, and the Court of Appeals affirmed.

June 15, 2015

Plaintiff Lacks Proof of Notice of Dangerous Condition – Case Dismissed

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

In Palmer v. Kees, No. E2014-00239-COA-R3-CV (Tenn. Ct. App. June 1, 2015), a recent premises liability case, plaintiff leased an apartment from defendant and sued defendant for injuries sustained when a board on the stairs leading from the apartment to the ground collapsed. The deck and stairs at the apartment had been built two days before plaintiff began his lease on March 1, 2011. According to plaintiff, during the fall of 2011 he complained to defendant landlord about some wood boards on the deck and stairs that were warped. Defendant hired a repairman to fix the warped boards, and the repairman stated that he left the deck and stairs in good condition. Plaintiff’s fall occurred on April 30, 2012, and he did not present any evidence that he informed defendant about problems with the stairs between the repair and the fall or that defendant otherwise had knowledge of any alleged problems preceding the fall.