Day on Torts
The Tennessee Court of Appeals reversed a grant of summary judgment in negligence case where plaintiff testified that she was paying attention and evidence presented did not depict scene from plaintiff’s perspective.
In Walden v. Central Parking System of Tennessee, Inc., No. E2014-00939-COA-R3-CV (Tenn. Ct. App. April 27, 2015), plaintiff sued defendants for negligence after falling in a parking garage. According to plaintiff, she was leaving a doctor’s appointment and walking toward her car when she fell because she did not see a step down from the curb/lobby area to the garage floor. Plaintiff testified in her deposition that she was looking down, paying attention, was not distracted, and that everything looked gray and she did not see any yellow or any other reason to notice that there was a step down. Instead, plaintiff testified that from where she was walking, everything looked the same.
Defendants moved for summary judgment, submitting photographs of the place where plaintiff fell as evidence. These photos showed yellow striping on the curb and in the “no parking area immediately in front of the curb.” Defendants admitted, however, that these photographs were taken “from an angle and viewpoint different from the one Plaintiff would have had as she was walking toward her vehicle.” The trial court granted summary judgment to defendants, finding that there no genuine issue of fact, that there was no fault on the part of defendants, and that the accident occurred “due to [plaintiff’s] own failure to observe the open and obvious condition of the premises that was there to be seen.” The Court of Appeals reversed.
In finding a genuine issue of material fact, the Court specifically pointed to plaintiff’s testimony: “I was looking. It all looked gray. It all looked the same.” The Court also took special note of the fact that the photographs submitted as evidence that the step was clearly marked were taken from a different angle and viewpoint than the one plaintiff would have had when walking to her vehicle. From this, the Court concluded that “[a] reasonable person could conclude that Plaintiff was keeping a careful lookout by ‘looking down where she was walking’ and that despite her doing so, ‘the curb and step down’ were not open and obvious.”
Although this case was decided under the summary judgment standard that existed prior to July 1, 2011, it is still notable. Here, plaintiff’s counsel must have done a good job in his brief of pointing out the potential differences in the photographs presented by defendants and the scene as viewed from plaintiff’s perspective. Further, the deposition testimony available allowed the Court to point to evidence that plaintiff was paying attention and walking in a careful manner. In this case, good deposition testimony combined with pointing out possible factual issues allowed this plaintiff to survive the summary judgment stage.