Day on Torts
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.
To prove a negligence claim, plaintiff needed to show that defendants owed a duty to him. When considering whether a duty exists, courts must “balance the foreseeability and gravity of the potential harm against the burden imposed in preventing that harm.” (internal citation omitted). Further, to prevail on his premises liability claim, plaintiff also had to prove that a dangerous condition existed.
In support of their motion for summary judgment, defendants submitted an affidavit and report from an expert who had reviewed the accident scene, the driveway in question, and relevant regulations and laws. The expert found that the driveway complied with all federal and state regulations, and that it actually exceeded several of the requirements. Defendants also submitted the affidavit of the franchisee who stated that “she was not aware of any other accident involving a vehicle pulling out from the driveway either before or since the accident involving [plaintiff].” Despite plaintiff’s assertion that this driveway was a “known dangerous and hazardous intersection and [had] a history involving motor vehicle accidents,” he offered no supporting proof and nothing to contradict defendants’ affidavits.
Based on the evidence, the Court of Appeals affirmed summary judgment, finding that the defendants had successfully negated the duty element of plaintiff’s claim. The Court stated:
[Defendants] submitted uncontroverted expert proof that there was no unreasonably dangerous condition on [defendants’] property at the time of the accident. There is no evidence in the record revealing any obstacle that blocked the view of the non-party. An accident involving a third-party exiting the property and failing to yield the right-of-way is unforeseeable. To hold otherwise would be an onerous burden on not only [defendant] but every property owner.
(internal citation omitted).
This case is a reminder that a plaintiff opposing summary judgment must be prepared to offer something in contradiction to defendants’ evidence. In this opinion, the Court talked a lot about what was not in the record, and plaintiff’s failure to present proof of its allegation that the driveway was dangerous lead to summary judgment being affirmed.
NOTE: To aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released less than two months after oral argument.