Friedenstab v. Short

• Decision Date: 06 December 2004
• Citation: 174 S.W.3d 217
• Parties: Dana FRIEDENSTAB, et al. v. Martha SHORT.
• Court: Tennessee Supreme Court

174 S.W.3d 217

Dana FRIEDENSTAB, et al. v. Martha SHORT.

Court of Appeals of Tennessee, at Nashville.

October 9, 2003 Session.

May 27, 2004.

Permission to Appeal Denied by Supreme Court December 6, 2004.

Pamela M. Spicer, Nashville, Tennessee, for the appellants, Dana Friedenstab and Michael Friedenstab.

Alan M. Sowell, M. Kristin Selph, Nashville, Tennessee, for the appellee, Martha Short.

WILLIAM B. CAIN, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, joined.

OPINION

The plaintiffs bring this appeal from the trial court's summary judgment in favor of the defendant. We affirm.

Dana Friedenstab and her husband sued her employer, Martha Short, for injuries sustained when Mrs. Friedenstab slipped and fell at the Short home, where Mrs. Friedenstab performed housekeeping duties for Martha Short. Mrs. Friedenstab's duties often took her up and down a set of stairs leading from the Short kitchen to the garage. The undisputed facts in the record show that the stairs were well lit, when on July 19, 2000, while descending the steps, Plaintiff slipped and fell. A complaint was filed June 13, 2001, and alleged negligence and a failure to warn of a dangerous condition on the property, i.e., newspapers placed "on the stairs." Discovery commenced, and by the time Defendant filed her Motion for Summary Judgment on December 13, 2002, the following facts were established and undisputed:

1. Plaintiff fell when she slipped on newspapers on the floor of the garage at the foot of the stairway.

2. Although Defendant normally put accumulated newspapers near the steps in the garage pending later recycling of them, Plaintiff had never seen the papers near the steps before. It is unknown how many newspapers were near the steps. Although Plaintiff had testified in deposition that she did not know how she missed seeing the papers until she stepped on them, in response to Defendant's motion, Mrs. Friedenstab swore by affidavit that her view of the papers was obstructed by the last of the three steps. Defendant moved for summary judgment, arguing lack of duty and comparative fault.

On February 18, 2003, the trial court granted summary judgment to Defendant on the following grounds:

1. That the newspapers were open and obvious;

2. That Plaintiff had an obligation to watch her step;

3. That nothing distracted Plaintiff's view of the newspapers; and

4. That a reasonable jury would have to find that Plaintiff was more than 50% at fault for her injuries.

It is from this summary judgment grant, that Plaintiffs appeal arguing the existence of material factual issues prohibiting the grant of summary judgment. See Tenn. R. Civ.P. 56; see also Byrd v. Hall, 847 S.W.2d 208, 214-16 (Tenn.1993).

The supreme court provides guidance concerning the grant of summary judgment:

Summary Judgment is to be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." T.R.C.P. 56.03. "The court's role in ruling on the motion is similar to its role in ruling on a motion for a directed verdict, and it must view the ... evidence before it in the light most favorable to the opponent of the motion." Stone v. Hinds, 541 S.W.2d 598 (Tenn.App.1976).

Lindsey v. Miami Development Corp., 689 S.W.2d 856, 858 (Tenn.1985).

Both parties agree that the question of the existence of a duty between Defendant and Plaintiff is a question of law. See Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998). The existence of that duty is the initial requirement of proof to establish a negligence claim. As the court in Coln stated:

The determination of whether a duty is owed requires a balancing of the foreseeability and gravity of the potential harm against the burden imposed in preventing that harm. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 901 (Tenn.1996). Assuming a duty of care is owed, be it a duty to refrain from creating a danger or a duty to warn against an existing danger, it must then be determined whether a defendant has conformed to the applicable standard of care, which is generally reasonable care under the circumstances. "Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending to the particular situation and is to be commensurate with the risk of injury." Doe v. Linder Const. Co., Inc., 845 S.W.2d 173, 178 (Tenn.1992).

Coln v. City of Savannah, 966 S.W.2d at 39.

The court in Doe provided this analysis of foreseeability and risk:

"[T]he plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant's] power more probably than not would have prevented the injury." Tedder, 728 S.W.2d at 348. Foreseeability must be determined as of the time of the acts or omissions claimed to be negligent.

Negligence already has been defined as conduct which falls below a standard established by the law for the protection of others against unreasonable risk of harm. The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. Risk, for this purpose, may then be defined as a danger which is apparent, or should be apparent, to one in the position of the actor. The actor's conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward "with the wisdom born of the event." The standard is one of conduct, rather than consequences. It is not enough that everyone can see now that the risk was great, if it was not apparent when the conduct occurred.

5 Prosser and Keeton, The Law of Torts § 31, p. 170 (1984) (footnotes omitted).

Doe v. Linder Constr. Co., Inc., 845 S.W.2d 173, 178 (Tenn.1992) (emphasis added).

Keeping in mind that there is no liability for the results of an accident that could not have been foreseen by a reasonably prudent person, and that "negligence is not to be presumed by the mere happening of an injury or accident," Brackman v. Adrian, 63 Tenn.App. 346, 472 S.W.2d 735, 739 (1971), and that the burden rests upon Plaintiff to establish a duty owed by Defendant to him, a breach of that duty and injury resulting from the breach, Smith v. Roane-Anderson Co., 30 Tenn.App. 458, 207 S.W.2d 353 (1947); Nelson v. Richardson, 626 S.W.2d 702 (Tenn.Ct.App.1981), we now look to the record in this case.

Believing that she was filing suit against her physician for medical malpractice Dana Friedenstab went to her attorney's office and found that she was, in fact, suing Martha Short.

In her complaint she alleged:

4. The incident occurred at approximately noontime when Plaintiff, Dana Friedenstab, was in Defendant's home providing housekeeping services and attempted to negotiate a flight of three steps from the alcove off the Defendant's kitchen into Defendant's garage to obtain an ironing board. Prior to June 19, 2000, Plaintiff, Dana Friedenstab was familiar with Defendant's home and had utilized the stairs from Defendant's garage into the alcove off Defendant's kitchen on numerous occasions. Unknown to Plaintiff Dana Friedenstab, however, Defendant had placed a stack of newspapers on the bottom step leading into her garage and Plaintiff slipped on this stack of newspapers and fell into the floor of Defendant's garage sustaining severe and debilitation injuries.

5. Defendant, Martha Short, was guilty of one or more of the following acts of negligence which constitute a direct and proximate cause of all injuries and damages alleged herein:

a. Said Defendant placed newspapers on the steps leading from the alcove off her kitchen into her garage when Defendant knew, or in the exercise of reasonable care should have known, that said newspapers created an obstruction on the steps and a dangerous condition for people attempting to traverse those steps;

b. Said Defendant failed to warn Plaintiff Dana Friedenstab that she had placed newspapers on the steps leading from the alcove off her kitchen into her garage when said Defendant knew, or in the exercise of reasonable care should have known, that said newspapers created an obstruction on the steps and a dangerous condition for people using the steps, and that Plaintiff Dana Friedenstab would be using those steps in performing the housekeeping services that Defendant had requested Plaintiff to perform.

6. As a direct and proximate result of Defendant's foregoing acts of negligence, Plaintiffs have incurred doctor, hospital, and medical expenses, and will continue to incur such expenses in the future.

Sixteen months after filing her complaint, Plaintiff testified, by discovery deposition, in relevant part:

Q. Is it fair to say that during the two years that you had been working with her at her house that you were familiar with her house?

A. Very. And it's a big house.

Q. Now, this incident occurred in the garage; is that correct?

A. Yes, it did.

Q How many times had you been in the garage before during those two years?

A. Many times.

. . . .

Q. And you went into the garage, was there light in the garage?

A. There was light like it always was but mainly coming from the skylight and from the storage room that was open.

Q. Did that provide you with adequate light?

A. Sure, it was. I never really — it was never dark.

Q. All right. So you didn't need to turn on a light?

A. No, it was — it was plenty lit up.

Q. All right. Tell me what happened.

A. Boy, it's all a blur, but I just didn't see any papers until my foot hit them and flew out from under me. I didn't see — I was just — and I was looking where I was going because I always did and I didn't have any reason to think that it would be any different that day because she had never had papers there before, ever....