Day on Torts
The Tennessee Supreme Court recently affirmed a premises liability judgment for the plaintiff based on an apartment complex failing to maintain a pedestrian bridge properly.
In Trentham v. Mid-America Apartments, LP, No. M2021-01511-SC-R11-CV, — S.W.3d — (Tenn. Jan. 8, 2025), the plaintiff was a tenant in the defendant’s apartment building. The plaintiff often used a wooden pedestrian bridge when traveling to and from the apartment fitness center. On the day of the plaintiff’s injury, it had rained the night before and was possibly still drizzling. The plaintiff attempted to cross the bridge after his workout when he slipped and fell. The plaintiff described the slippery substance that caused his fall as “slimy but clear” and “obviously not just water.” The plaintiff could not get up, even with the assistance of a maintenance employee, so an ambulance was called. The plaintiff suffered significant injuries to his left quadriceps tendon. The plaintiff required two surgeries, neither of which was successful, and he was left with permanent disability from the incident.
The plaintiff filed a premises liability suit against the defendant apartment owner, and the trial court ruled in the plaintiff’s favor. At trial, the plaintiff offered his own testimony as well as that of an expert. The plaintiff’s expert testified that, because the bridge was built with treated lumber, it would become slick if it was not maintained. Representatives from the defendant testified that there had been no previous issue with the bridge and that the premises had been inspected six days earlier. These representatives also stated that the company policy was to pressure wash communal areas such as the bridge once a year, but that there was no evidence this bridge had been pressure washed in the year preceding the plaintiff’s fall. The trial court found that the plaintiff had proven his negligence case, but it did assign the plaintiff 15% of the fault for the incident. The trial court awarded the plaintiff over $2 million in damages.
The Court of Appeals affirmed the ruling for the plaintiff, holding that “the trial court’s finding that there was a microbial growth on the bridge creating an unsafe condition and its determination that [the defendant] was on constructive notice of this dangerous condition is supported by a preponderance of the evidence.” In this opinion, the Tennessee Supreme Court affirmed this ruling.
The Supreme Court began its analysis by reviewing Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004). In this case, the Tennessee Supreme Court held that “in Tennessee, plaintiffs may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence.” Id. In this appeal, the defendant argued that Blair should be partially overturned, asserting that the terms “pattern of conduct” and “general conditions” were “misleadingly vague and unhelpful.” The Supreme Court declined to overturn any part of Blair and found “no compelling reason to refine Blair.”
Next, the Court considered whether the plaintiff had sufficiently established a duty of care. The Court stated that “constructive notice is most appropriately analyzed as part of the duty element of negligence.” The Supreme Court noted that there was no argument that the defendant had actual notice; instead, the issue surrounded whether the plaintiff had shown constructive notice.
The defendant first argued that the plaintiff failed to show constructive notice because he “did not identify the injury-causing condition with adequate specificity.” The Court quickly rejected this assertion, noting that the trial court credited both the plaintiff and the plaintiff’s expert testimony that there was a “slimy, natural growth” on the bridge. The Court also mentioned that the defendant “did not present any direct evidence that contradicted [the plaintiff or his expert’s] testimony.
The defendant also argued that the plaintiff “failed to establish a duty under established constructive notice standards.” In rejecting this argument, the Supreme Court wrote:
In [the defendant’s] application for permission to appeal, its primary assertion was that Blair ‘rejected’ a ‘method-of-operation foreseeability standard,’ and that the Court of Appeals’ decision in this case is contrary to that rejection. We disagree. This Court made clear in Blair that its holding was not novel, and we specifically stated that the presence of a dangerous condition should be ‘reasonably foreseeable to the premises owner’ in order to establish constructive notice. Blair, 130 S.W.3d at 766. Blair contemplated that a dangerous condition ‘could be caused by the owner’s method of operation, by a third party, or by natural forces,’ and that a premises owner could be put on constructive notice regardless of what caused the condition, and regardless of whatever method of operation the owner employs. Id. We stated that [c]ertainly there will be cases where the method of operation chosen by the owner creates a dangerous recurring condition, but that ‘there is no logical reason to impute constructive notice only in those cases.’ Id. (emphasis added). Rather than rejecting a foreseeability approach to constructive notice, Blair stated that constructive notice may be established by a ‘show[ing] that the dangerous condition was part of ‘a pattern of conduct, a recurring incident, or a general or continuing condition’ such that its presence was reasonably foreseeable to the premises owner.’ Id. We see no reason to deviate from our longstanding precedent in this case.
The Supreme Court majority also addressed arguments raised by the dissenting opinion filed in this case. It rejected the dissent’s assertion that “knowledge of an unsafe condition can only be imputed to a premises owner when the same or a similar unsafe condition has occurred previously.” The majority wrote that allowing premises owners to ignore maintenance because no injury had occurred before would encourage “the exact type of willful ignorance constructive notice is designed to prevent” and provide “premises owners a one-time get out of jail free card.”
The Court concluded:
Here, the trial court found that [the defendant] should have known that a microbial growth would arise on the bridge if the bridge was not pressure washed consistently. [Plaintiff’s expert’s] testimony indicated that failure to clean a bridge like the one in this case would likely lead to a growth of fungus, causing the surface to become slick. [Defendant’s representatives’] testimonies indicate that [the defendant] was aware that routine maintenance of bridges like the one that was involved in [the plaintiff’s] fall is required to prevent unsafe conditions. Despite the fact that [the defendant] did not have actual notice of a microbial growth on the bridge, the trial court found that [the defendant] should have known that failure to pressure wash for over a year would likely lead to the occurrence of a general unsafe condition. We conclude that the “general or continuing condition” provision set forth in Blair is designed to apply to situations like this one, in which it is reasonably foreseeable that an unsafe condition would arise without proper maintenance. Therefore, the dangerous condition on the pedestrian bridge was not unexpected or random.
The majority accordingly affirmed the ruling for the plaintiff.
Justice Campbell filed a lengthy dissent here opining that the “majority opinion creates a third category [of premises liability constructive notice] that has no footing in our existing precedents” and “holds that premises owners owe entrants a duty to protect against an unsafe condition on the property when it is reasonably foreseeable that an unsafe condition will arise on the premises without property maintenance.” She wrote that this holding was “impossible to reconcile with Blair,” and that under this ruling “every property owner with regular maintenance practices will be saddled with a duty to remedy and warn against all conceivable unsafe conditions.”
The dissent and the majority’s response to the dissent focused largely on allowing a plaintiff to show constructive notice without showing the length of time a condition existed or that “a similar condition had occurred in the past.” This was not the focus of the Court of Appeals opinion, so it will be interesting to see how this opinion is cited in the future by premises liability litigants.
This opinion was released thirteen months after oral arguments.