Chambliss v. Shoney's Inc.
| Decision Date | 23 October 1987 |
| Citation | 742 S.W.2d 271 |
| Parties | Don Evans CHAMBLISS, Plaintiff-Appellant, v. SHONEY'S INC., Defendant-Appellee. |
| Court | Tennessee Court of Appeals |
W.A. Moody, Nashville, for plaintiff-appellant.
Robert Orr, Jr., Nashville, for defendant-appellee.
The plaintiff, Don Evans Chambliss, has appealed from a directed verdict and judgment dismissing his suit against the defendant, Shoney's Inc., for injuries sustained when plaintiff slipped and fell on the premises of defendant.
The sole issue on appeal is the correctness of the directed verdict entered at the conclusion of plaintiff's evidence.
Plaintiff presented evidence of the following facts:
Prior to February 5, 1985, considerable snow had fallen. It was in the process of "melting off" on February 5 when plaintiff entered the restaurant of defendant with relatives to have lunch. After being seated, plaintiff arose and went to the restroom maintained for patrons. As he started to leave the restroom his feet slipped, and he fell. He had not previously seen water on the floor; but, after falling, he could feel water under himself. He had no information as to the origin of the water. After the fall, the coat and pants of plaintiff were wet. The water on the floor covered a considerable area, and could have been seen by plaintiff as he entered the restroom.
The parking lot adjoining the restaurant was "partly frozen and partly slushy". On other occasions customers would "bang their feet" to remove snow and slush upon entering the restaurant, but there is no evidence that such occurred on the date of the injury. There were no mats in place for cleaning feet. Employees are instructed to inspect floors once per hour, but may fail to do so during a busy period. A supervisor inspected the restroom floor at 10:30, 11:15 and 11:30 a.m. Plaintiff fell about 12 noon. "It is possible" that the restroom floor had not been inspected for 45 minutes before plaintiff fell. The floor of the restroom is "inlaid brick" and is smooth.
There is testimony as to the location of the restroom in relation to the entrance of the restaurant, but it is difficult to interpret because of the absence of fourteen exhibits mentioned in the testimony but not filed with the Trial Clerk and not transmitted to this Court. Pertinent testimony is as follows:
Q. (By Mr. Orr) Now, this enlargement, Mr. Chambliss, let me look over here so that the jury can see it. This drawing shows the door that you go in, and then there's the entranceway; isn't that correct?
A. Correct.
Q. And in the picture here you'd go down toward the lower right-hand side, but as you're coming on the left the door goes to the men's room; isn't that correct?
A. Correct.
Q. And if you went to the right, the ladies' room is over here where these doors are?
A. Correct.
The foregoing seems to indicate that the doorway of the restroom did not immediately adjoin the outside door of the restaurant. This is significant because there is no evidence of water on the floor of the restaurant at or near its entrance.
On review of a directed verdict for the defendant, the appellate court does not weigh the evidence, but must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging all reasonable inferences in plaintiff's favor, and disregarding any evidence to the contrary. The directed verdict may be affirmed only if there is no material evidence in the record which would support a verdict for the plaintiff. Wharton Transport Corp. v. Bridges, Tenn.1980, 606 S.W.2d 521, 24 A.L.R. 4th, 1295. Westbrook v. Illinois Cent. Gulf R.R., Tenn.App.1985, 688 S.W.2d 453.
Before the owner or operator of a premises can be held liable for negligence in allowing a dangerous or defective condition to exist on the premises, such condition must have been created by the owner or operator or his agent, or, if created by someone else, there must be actual or constructive notice on the part of the owner or operator prior to the injury that the condition existed. Benson v. H.G. Hill Stores, Inc., Tenn.App. 1985, 699 S.W.2d 560.
A property owner is liable to his invitees for injuries occasioned by the unsafe condition of the premises if the condition was known to him and not to them and was suffered to exist without timely notice to the public. The liability of a property owner to an invitee for injuries sustained on the owner's premises is grounded on the owner's superior knowledge of the perilous condition which caused the injuries. Illinois Central R. Co. v. Nichols, 1938, 173 Tenn. 602, 118 S.W.2d 213.
The proprietor of a place of business is under a duty to exercise reasonable care to keep the premises in reasonably safe and suitable condition, including the removal of or warning against unsafe conditions caused by persons for whom the proprietor is not responsible or by the elements, if the circumstances of time and place are such that, by the exercise of reasonable care, the proprietor should have been aware of such condition. In cases where the peril is not created by the proprietor or his agents, he is not liable for injuries from dangers that are obvious, reasonably apparent, or as well known to the injured party as to the proprietor. Allison v. Blount Nat. Bank, 1965, 54 Tenn.App. 359, 390 S.W.2d 716.
When there is a complete absence of proof as to when and how the dangerous condition came about, it would be improper to permit the jury to speculate on these vital elements. Paradiso v. Kroger Co., Tenn.App. 1973, 499 S.W.2d 78.
There is no evidence of the source of the water which caused plaintiff to fall. It is insisted that this is a "trackage" case in which moisture was "tracked" into the premises on the feet of patrons of the restaurant. This is a possibility, but it is a remote possibility because the uncontradicted evidence shows that the restroom was some distance from the outside entrance, and there is no evidence of any moisture "trackage" between the outside entrance and the restroom. It would be most unusual and unlikely for a visitor to enter the restaurant with a quantity of snow on his feet and to proceed to the restroom without leaving any tracks of snow or water only to deposit a considerable puddle of water in the restroom. It is highly unlikely that the water emanated from a leak in the bathroom fixture, for the plaintiff...
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