Keller v. East Tennessee Production Credit Ass'n

• Decision Date: 18 July 1973
• Citation: 501 S.W.2d 810
• Parties: Harvey KELLER v. EAST TENNESSEE PRODUCTION CREDIT ASSOCIATION.
• Court: Tennessee Court of Appeals

Page 810

501 S.W.2d 810

Harvey KELLER v. EAST TENNESSEE PRODUCTION CREDIT ASSOCIATION.

Court of Appeals of Tennessee, Eastern Section.

July 18, 1973.

Certiorari Denied by Supreme Court Nov. 19, 1973.

Milligan, Coleman, Fletcher & Gaby, Greeneville, for appellant, East Tennessee Production Credit Assn.

Charles R. Terry, Morristown, John A. Armstrong, Greeneville, for appellee, Harvey Keller.

OPINION

COOPER, Presiding Judge (E.S.)

Harvey Keller sued the East Tennessee Production Credit Association for damages for personal injuries sustained in a fall on premises owned by the defendant. On trial, the jury answered plaintiff $10,000.00 in damages. The defendant appealed directing its assignments of error to the action of the trial judge in overruling defendant's motions for a directed verdict, and in refusing to give requested instructions to the jury.

The defendant insists there was no evidence of actionable negligence on the part of defendant to support a verdict in favor of the plaintiffs, and that the evidence shows the plaintiff was guilty of contributory negligence as a matter of law.

In considering these assignments of error, this Court in its review does not weigh the evidence, but considers only whether there is any material evidence to support the verdict, and in such review we are required to take the strongest legitimate view of all the evidence favorable to the plaintiffs, disregard all to the contrary, and indulge all reasonable inferences to uphold the verdict. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897; Kunk v. Howell, 40 Tenn.App. 183, 289 S.W.2d 874.

It is only where the evidence is uncontradicted and a reasonable mind could draw only one conclusion from the evidence that a trial judge is justified in directing a verdict. Ford v. Vanderbilt University, 40 Tenn.App. 87, 289 S.W.2d 210.

Applying the foregoing rules to the facts of the instant cases, the evidence shows that defendant's business is located in a one-story building on Tusculum Boulevard in Greeneville, Tennessee. Defendant has provided for customer parking in front of the building, and also in a parking lot at the rear. Entrance to the building is gained through doors in the front and through a side door which opens off of the driveway leading to the rear parking lot. The side door is regularly used by defendant's employees and by customers who park in the rear parking lot.

To set the scene, the accident giving rise to this suit occurred at about 8:15 A.M. on January 15, 1970. The newspaper reports indicate that on the night of January 11th and on January 12, 1970, the Greenville, Tennessee are experienced a sleet and snow storm. Thereafter the temperatures at night were sub-freezing and the daytime temperatures were in the thirties. On the day the accident occurred, defendant's front parking lot was clear of snow. There were patches of snow in the rear parking lot and in the driveway leading from the street to the parking lot. There were also clear areas where the snow had melted and the water had drained.

Defendant's employee, a Mr. Raider, checked both the front and side entrances to the building for icing at about 7:30 A.M., and spread salt over patches of ice on the front steps. This employee saw no ice at the side entrance.

Plaintiff, at the request of an employee of the defendant, went to defendant's office at about 8:00 A.M. to renew a note. The plaintiff parked his truck in the rear parking lot, walked to the building without incident, and entered the building through the side door.

On completing his business with defendant, plaintiff asked for and was granted permission to leave defendant's building by the side door. On reaching a point about five feet from the door, the plaintiff slipped and fell, breaking his right ankle.

The plaintiff testified that after falling, he saw an area of clear, glare ice around the grating located in the driveway in close proximity to the side door; that the ice was 'almost transparent' and 'looked the color of the (underlying) asphalt.' Plaintiff testified he never noticed any ice on the way in and that there was no snow around the grating.

Mr. Ogle, defendant's general manager, testified, he knew there was a drainage problem in the area where plaintiff fell (it seems there is no drain from the grate under the driveway) and that the area stays wet. Mr. Ogle testified further that he had entered the building by the side door some fifteen minutes before plaintiff was injured and that he saw the ice around the grating. Mr. Ogle did not warn plaintiff of the ice when plaintiff indicated to him that he wanted to leave the building by the side door.

Mr. Ogle and other employees testified that there were clear areas in the driveway and the rear parking lot, and that a person could traverse the area safely if he kept a lookout for snow and ice.

The proprietor of a place of business is under a duty to exercise reasonable care to maintain his premises in a reasonably safe condition for use by his customers. This duty includes the removal of or warning against any dangerous condition on the premises, whether created by the employees of the proprietor or others using the premises or by the elements, if the circumstances of time and place are such that by the exercise of reasonable care the proprietor has or should have acquired knowledge of such condition. Allison v. Blount National Bank, 54 Tenn.App. 359, 390 S.W.2d 716; Grizzell v. Foxx, 48...