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Another good Tennessee Court of Appeals premises
liability decision was recently published.
The case is Elizabeth
F. Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV, 2015 WL
151373 (Tenn. Ct. App. 2015). In
this case the plaintiff visited a Food City store in Sevier County Tennessee. The property was divided by a continuous curb
which was unmarked. The court noted that
the curb was there to prevent cars parked at Food City from traveling into the
drive-thru area of the adjacent bank.
The plaintiff’s husband parked perpendicular to the curb. After returning from shopping the plaintiff
loaded her car with groceries. She then
stepped backwards, tripped on the curb and fell to the ground, sustaining injuries.
The plaintiff filed a negligence cause of
action against Food City and other defendants and sought $350,000.00. The trial court granted summary judgment and
found the defendant had no duty to warn the plaintiff of the curb and that if
the case was presented to a jury, the jury could not reasonably conclude that
the plaintiff was less than 50% at fault for her injuries. The case was then appealed.
On appeal, the plaintiff tried to argue that
the summary judgment was error because the defendant never established that she
failed to look where she was walking.
The court noted, however, that the plaintiff admitted she was walking
backwards, that the curb was visible and that she would have noticed it had she
been looking for it or if she paid attention to it. The plaintiff did not admit that she failed
to look behind her while walking – but this was not enough.
The court stated that the curb was not a “random,
superfluous curb in the way of travel between grocery patrons and the trip to
and from the establishment. The curb operated as a visible and physical barrier
between the Food
City parking lot and the Bank, namely the drive-through area of the Bank.” Holland at
3. The court then affirmed summary
judgment and found that “defendant did not have a duty to warn plaintiff of the
curb and because plaintiff’s mode of travel, namely walking backward, was the
cause of her injury.”
As a result, this case combined with other
Tennessee premises liability cases, make it clear that it is very difficult to
win a case involving a plaintiff who trips over a curb. This is especially true when they are walking
backwards! A curb is a classic open and
obvious condition that is found throughout the State of Tennessee. Based on this case and others, there is no
duty to warn of the presence of a curb that is present in a typical area. Curbs surrounding a building or separating
two different properties are normal occurrences and should not be the basis for
liability of a premises owner. Further,
if an individual is walking backwards and falls over something they could clearly
see if they were looking, then likely, these facts are a very bad omen for the
potential success of their case.
Follow me on Twitter at @jasonalee for updates from the Tennessee Defense Litigation
blog.
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