Coln v. City of Savannah
| Citation | 966 S.W.2d 34 |
| Court | Tennessee Supreme Court |
| Decision Date | 30 March 1998 |
| Parties | Hazel Maxine COLN and husband, Carl F. Coln, Appellants, v. CITY OF SAVANNAH, Tennessee, Appellee. Debbie VANCLEAVE, Appellant, v. Matthew MARKOWSKI and wife, Diane Markowski, Appellees. |
Edward L. Martindale, Jr., Drew and Martindale, Jackson, for Appellant, Coln.
James H. Bradberry, James H. Bradberry & Associates, Dresden, for Appellant Vancleave.
John A. Day, Donald Capparella, Nashville, Jeffrey A. Garrety, Jackson, for amicus curiae, Tennessee Trial Lawyers Association.
James A. Hopper, Savannah, for Appellee, City of Savannah.
Russell E. Reviere, Bradford D. Box, Rainey, Kizer, Butler, Reviere & Bell, P.L.C., Jackson, for Appellee, Markowski.
Todd Moore, Haynes & Freeman, P.L.C., Goodlettsville, for amicus curiae, Tennessee Municipal Attorneys Association.
We granted permission to appeal in two premises liability cases to determine a common question to both--whether and to what extent the traditional open and obvious rule eliminating a landowner's duty to one injured as a result of an open and obvious danger continues to be viable after the adoption of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). 1
In the first premises liability case, Coln v. City of Savannah, the trial judge implicitly found a landowner duty and, applying comparative fault principles, found that the injured plaintiff, who tripped over brick pavers installed in the sidewalk by the City, was 30 percent negligent and the City was 70 percent negligent, and awarded damages accordingly. The Court of Appeals reversed, implicitly acknowledging a duty owed by the City but finding that the plaintiff was at least 50 percent negligent because "the condition of the sidewalk was obvious to the extent that a reasonably prudent person should have recognized the potential hazard that it presented."
In the second case, Vancleave v. Markowski, the trial judge, implicitly finding no landowner duty, granted summary judgment to the landowner after finding that the opening in a pool deck on which the plaintiff fell and was injured was "clearly visible and not concealed and that anyone walking on the premises should have been able to observe it." The Court of Appeals affirmed.
After reviewing the two cases before us, the extensive literature, our Tennessee cases on the subject, and cases from other jurisdictions, we conclude that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, we think a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant's conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm. McCall v. Wilder, 913 S.W.2d 150 (Tenn.1995). Applying this analysis, if the foreseeability and gravity of harm posed by the defendant's conduct, even if "open and obvious," outweigh the burden upon the defendant to engage in alternative conduct, the defendant has a duty to act with reasonable care and the comparative fault principles apply under McIntyre v. Balentine, supra.
After reviewing the record in each case and applying this rule, we reverse the Court of Appeals' judgment in Coln v. City of Savannah and reinstate the judgment of the trial court awarding damages. We also reverse the Court of Appeals' summary judgment in Vancleave v. Markowski and remand to the trial court for proceedings consistent with this opinion.
In June of 1992, the City of Savannah ("City") contracted to have decorative brick pavers installed in front of the entrance of its City Hall building. The brick pavers were installed on top of a bed of sand in an area approximately thirteen and one-half feet wide by sixteen and one-half feet long; the surface of the pavers when installed was below the level of the adjacent concrete sidewalk that led to the door of the City Hall building.
On November 2, 1992, the plaintiff, Hazel Coln, who was 68 years of age, walked across the brick pavers toward the entrance of the building and tripped on the lip of the concrete sidewalk adjacent to the brick pavers. She fell, injuring her left wrist and arm. Coln conceded that the weather had been clear and sunny, and that nothing prevented her from seeing the brick pavers or the sidewalk. 2
William Gilchrist, the landscape designer who installed the brick pavers, testified that there was a deviation approximately three-eighths of an inch between the pavers and sidewalk when the pavers were installed. Gilchrist testified that the deviation was due to the settling of sand beneath the pavers, as well as a hump in the concrete sidewalk. When he installed the brick pavers, Gilchrist told Bill Fox, the assistant manager for the City, that a deviation existed and that half of the pavers would have to be replaced to correct the deviation.
Fox testified that he knew about the deviation between the pavers and the sidewalk, but felt that it was acceptable and should not be corrected. Paul Lebovitz, a landscape architect, testified that it is reasonable to expect some deviation between the two surfaces when pavers are installed near a concrete sidewalk but that pavers are accepted in the industry as a safe walkway material. There was also evidence that the size of the deviation was several inches greater at the time the plaintiff was injured.
The plaintiffs alleged that the City "had negligently and carelessly left [the area of the new brick pavers] defective and in disrepair" and that the City had created "a dangerous condition for the plaintiff and any other person walking down said sidewalk." The trial court rejected the City's reliance on government immunity provisions 3 after finding that the sidewalk was defective, unsafe, and dangerous:
[The defendant] surprisingly knew of [the deviation] in its inception, but accepted it and made no attempt to correct it....They created and maintained the defective, unsafe and dangerous condition and ... this condition was the proximate cause of the injuries suffered or experienced by the Plaintiff wife.
Accordingly, the trial court apportioned 30 percent of the negligence to the plaintiff and 70 percent to the City.
On appeal, the City contended that the trial court erred in finding that the sidewalk was defective, unsafe, or dangerous, and that the trial court should have found that the plaintiff was at least 50 percent negligent because the condition of the sidewalk was "open and obvious." The Court of Appeals noted that the "open and obvious" rule traditionally removed any duty owed by a defendant to a plaintiff who is injured as a result of dangerous conditions that are open and obvious, but said that the rule was subsumed by the comparative fault system adopted in McIntyre v. Balentine, supra. Thus, the court held:
We adhere to the concept that there is no liability on the person or entity in control of premises if a person lawfully thereon fails to exercise reasonable care for his or her own safety or for dangers that are obvious, reasonably apparent, or as well known to the injured party as to the owner, operator or person in control of the premises, so long as the plaintiff's negligence is equal to or greater than the defendant's negligence.... Otherwise stated, we are of the opinion that the duty of the plaintiff has not been changed but plaintiff's failure to meet her duty must be compared to the negligence of the tortfeasor....
The court then concluded that plaintiff Coln was at least 50 percent negligent under the facts of this case, and reversed the judgment. 4
In October of 1993, the plaintiff, Debbie Vancleave, was a guest at the home of the defendants, Matthew and Diane Markowski. According to their depositions, Vancleave and Diane Markowski went into the backyard to the deck area around a swimming pool, where they walked, talked and surveyed the landscaping in the yard. Vancleave, who was walking behind Markowski, fell into an opening in the deck area that was eighteen inches wide and three feet long. The opening normally contained a skimmer used for cleaning the pool, but it had been removed for the fall and winter months. Vancleave's right knee went into the opening, and she also injured her left ankle.
The plaintiff filed suit alleging negligence, and the landowners filed a motion for summary judgment on the basis that the opening in the deck was an open and obvious condition. The trial court agreed, finding that "the plaintiff was injured on an opening in the deck which was clearly visible and not concealed and that anyone walking on the premises should have been able to observe it." The Court of Appeals affirmed the order granting summary judgment to the defendants.
In each of these premises liability cases, the plaintiff contends that the open and obvious rule does not preclude finding a duty owed by the defendant landowner and that an open and obvious danger is merely a factor for consideration in determining comparative fault under McIntyre v. Balentine. The landowner defendants in both cases maintain that the rule is intact: that there is no duty of care when an open and obvious condition results in injury to the plaintiff. The City of Savannah in Coln also contends that the plaintiff was at least 50 percent negligent, barring recovery under comparative fault. The Court of Appeals' analysis in each case reflects the conflicting views about duty and comparative fault it has expressed in a series of its unpublished decisions. 5
We granted and consolidated these appeals to resolve the conflicting views and to determine the viability of the "open and obvious" rule after McIntyre; specifically, whether an "open and obvious" condition relieves a defendant's duty of care or whether it merely...
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