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The recent Tennessee Court of Appeals decision of David G. Rogers v. Autozone Stores, Inc., No. M2011-02606-COA-R3-CV, 2012 WL 3594342 (Tenn. Ct. App. August 21, 2012) provides a good summary of Tennessee premises liability law. Factually, this case concerns a plaintiff who alleged she slipped and fell in a puddle in an AutoZone store a few feet away from the front counter. It was raining on the day of the incident. The plaintiff initially entered the store and then exited to go outside while it was still raining. The plaintiff then returned inside the store approximately 15 to 20 minutes after she first entered. The plaintiff claims she then fell in a puddle that was the size of a plant pot. She was the only person in the front of the store during the 15 to 20 minutes prior to the fall.
The Court found that for a plaintiff to recover under a premises liability theory, the plaintiff must establish the standard elements of negligence and one of the two following elements:
(1) the condition was caused or created by the owner, operator, or his agent, or (2) if the condition was created by someone other than the owner, operator, or his agent, that the owner had actual or constructive notice that the condition existed prior to the accident.
Rogers at 6. (citing Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004).
The Tennessee Court of Appeals also discussed the fact that foreseeability is a key requirement in a premises liability action. The Court stated, "for a plaintiff to prevail in a premises liability case, he or she must prove that the injury was a reasonably foreseeable probability and that some action within the defendant's power more probably than not would have prevented the injury." Rogers at 6 (citing Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App. 1999)).
Based on the facts in the Rogers case, the Court found
Even taking into consideration the fact that the puddle was the size of a plant pot and that the employee could have seen the puddle from the counter, we do not believe that there is any evidence to infer that Autozone should have discovered the puddle's existence when Ms. Wright was the only person in the front of the store during the 15 to 20 minutes prior to the fall. While the employees were not tasked with patrolling the store for spills at set times, they had been instructed to clean any spills that they encountered. We do not believe that a lapse of approximately 20 minutes between general inspections was unreasonable when, according to Ms. Palmore, there was only one customer in the front of the store during that time period. Additionally, we cannot say that an employee would have discovered the puddle when Ms. Wright, who admitted that she was only a few steps away from the puddle when she first left the store, did not even notice the puddle in her successive trips in and out of the store. Without any additional evidence regarding the source of the puddle or the actual length of time that the puddle was present, we hold that there was not any material evidence from which the trier of fact could infer that the dangerous condition existed for such a length of time that one exercising reasonable care would have discovered it.
(emphasis added) Rogers at 7. This language provides a good example of how Tennessee courts should analyze the facts of the case in conjunction with the law.
The Tennessee Court of Appeals also provided an interesting summary of how a plaintiff can prove "constructive notice" in a premises liability case. The court found there were three possible ways to establish constructive notice:
First, the plaintiff may demonstrate that the owner or operator of the premises caused or created the condition. Second, if a third party caused or created the dangerous condition, the plaintiff may prove constructive notice by evidence that the condition “existed for a length of time” that the owner/occupier “in the exercise of reasonable care, should have become aware of that condition.” Third, the plaintiff may show constructive notice by proving that “a pattern of conduct, recurring incident, or general continuing condition” caused the dangerous condition.
(citations omitted) Rogers at 6. Constructive notice is a very important part of most premises liability cases. This is due to the fact it is rare that a premises owner had actual notice and therefore the fight in litigation is often whether the premises owner had constructive notice of the defective condition.
Overall, this decision is helpful because it summarizes the key points of law for a premises liability case in Tennessee. Additionally, the Court affirmatively found it did not believe a lapse of approximately 20 minutes between “general inspections” was unreasonable when the plaintiff was the only person in that area of the store during that time period. This could certainly be useful for defense counsel as a presumptive example of a reasonable time period between general inspections, even when it is raining.
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