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Analysis: The Tennessee Court of Appeals recently addressed the “open and obvious” defense in a premises liability case. In Jacqueline Elaine Green v. Paul Roberts, No. M2012-00214-COA-R3-CV, 2012 WL 4858992 (Tenn. Ct. App. 2012) the Court dealt with some interesting facts. The plaintiff walked through the defendant's parking lot to meet her cousin who parked her car in the parking lot. Green at 1. She walked across the lot to meet her cousin without any incident. Green at 1. As she left the meeting, she took a step backwards and tripped over a small metal post that protruded from the parking lot. Green at 1. The plaintiff's heel caught on the 8 inch by 8 inch metal post that protruded about ¾ of an inch above the surface of the parking lot. Green at 1. The parking lot asphalt is black and the concrete around the post is a lighter color. Green at 1. She tore her Achilles tendon and filed a lawsuit against the premises owner.
The trial court granted summary judgment because it found the plaintiff was 50% or greater at fault. Green at 2. That ruling was appealed to the Tennessee Court of Appeals. The Court noted that “traditionally, liability has not been imposed on a premises owner by courts of this state for injuries that resulted from defective or dangerous conditions that were ‘open and obvious.’” Green at 5. (citing McCormick v. Waters, 594 S.W.2d 385 (Tenn. 1980)). The Court further noted that since the adoption of comparative fault in Tennessee by McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), the “open and obvious” defense has been handled under principles of comparative fault. Green at 5. Specifically, “when an invitee is injured because of dangers that are obvious, reasonably apparent, or as well known to the injured party as to the owner or operator of the premises, liability, if any, should be determined in accordance with the principles of comparative fault analysis and the general negligence law of this state.” Green at 5.
The plaintiff, Ms. Green, admitted the area in question was visible from several feet away and in fact up to 10 to 20 feet away. Green at 7. However, when she fell she was not looking at the area where the aberration was present and therefore did not see it prior to her fall. Green at 7. Further, the Court found it was important that the area complained of by the plaintiff was only a "minor aberration in the parking lot". Green at 7. The Green court cited several Tennessee decisions that discussed that minor defects or depressions in a property are not sufficient to allow recovery under Tennessee premises liability law. Green at 7. The court specifically noted the following:
In several cases, both the Supreme Court of Tennessee and this Court have held that recovery will not lie because of the existence of minor defects and depressions. See Riddell v. Great Atlantic & Pacific Tea Co., 241 S.W.2d 406, 408 (Tenn. 1951) (“A recovery will not be allowed because of the existence of trivial holes or depressions.”); Murray v. City of Nashville, 299 S.W.2d 859, 862 (Tenn.Ct.App.1957) (“[T]he mere existence of trivial depressions ... [is] not such as to constitute actionable negligence....”); Batts v. City of Nashville, 123 S.W.2d 1099, 1103 (Tenn.Ct.App.1938) (“[S]light holes or depressions which are not in the nature of traps, and from which danger could not be reasonably anticipated, are not defects for which an action will lie.”); Rice v. Sabir, 979 S.W.2d at 309 (“The duty imposed on the premises owner ... does not include the responsibility to remove or warn against conditions from which no unreasonable risk was to be anticipated.”).
Green at 7. As a result, the Tennessee Court of Appeals found the trial court's grant of summary judgment was appropriate since it was an open and obvious condition that involved a minor aberration. This case could be important for premises liability cases in the future. Prior cases involving “minor” defects and “aberrations” generally involve depressions and undulations in the walking surface. This case involves the protrusion of a raised metal post ¾ of an inch above the surface. This is a case to keep in mind in future premises liability cases involving tripping hazards.
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