Premises Liability – Summary Judgment Granted in New Tennessee “Tripping Over Curb” Case

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. 

In Tennessee Can a Loss of Consortium Claim be Brought by an Individual Who is Not Legally Married to the Injured Person?

A question recently came up in my practice concerning whether a loss of consortium claim could be brought by a fiancée, boyfriend or girlfriend of an individual who was injured in Tennessee.  The simple answer to this question is that it appears a loss of consortium claim is not available in Tennessee to unmarried individuals.  However, the case law is not quite definitive as it should be, but the statute provides definitive support for this conclusion.

The United States District Court for the Middle District of Tennessee in Becker v. Judd and Walmart Transportation, LLC, 646 F.Supp.2nd 923 (M.D. Tenn. 2009) discussed this issue.  This Court found that under Tennessee law in order for a loss of consortium claim to exist, the plaintiffs must be legally married.  The court stated as follows:

While there is not a wealth of Tennessee law on this topic, the limited statutory and case law available indicates that the Beckers must be married in order to advance their claim for loss of consortium. For instance, the defendants cite two cases in which the Tennessee Court of Appeals noted, without objection, that the trial court had dismissed a loss of consortium claim because the couple asserting the claim was not married at the relevant time.

One of the two Tennessee cited cases was Littlejohn v. Board of Public Utilities of Paris, 2002 WL 54404 (Tenn. Ct. App. 2002).  The court states that this Littlejohn case is a “failed loss of consortium claim advanced by boyfriend and girlfriend”.  However, when you look at the actual Tennessee Court of Appeals’ decision, they do not address this actual issue at all.  The Tennessee Court of Appeals case simply states that the Trial Court dismissed the case because the individual seeking loss of consortium was not married to the injured party.  The Court of Appeals did not actually decide or substantively discuss this issue. 

The second Tennessee case cited in Becker is Eisenhardt v. Ramsey, 1995 WL 358062 (Tenn. Ct. App. 1995).  This case is cited by t...

The New Tennessee “Employee Online Privacy Act of 2014” Takes Effect Today (Preventing Employers from Obtaining Access to Personal Internet Accounts Like Facebook)

I previously blogged on the new Tennessee Employee Online Privacy Act of 2014.  The full blog post on this new statute can be found here.  This new statute basically prevents an employer from taking any adverse employment action against an employee for failure to provide access to a “personal internet account” (which basically includes any type of internet account including Facebook or other similar services).  This statute goes into effect today, January 1, 2015.

Employers need to keep this new statute in mind as they venture more and more into the online existence of their employees (or potential employees).  Tennessee has attempted, with this new statute, to protect employees by preventing mandatory access by an employer to an employee’s online information.  Employers can no longer demand access in certain situations covered by the statute.  Employers need to make sure they review and implement policies that comply with this new statute.

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