Paradiso v. Kroger Co.

Citation499 S.W.2d 78
PartiesRose L. PARADISO, Appellant, v. The KROGER COMPANY, Appellee.
Decision Date17 April 1973
CourtCourt of Appeals of Tennessee

Andrew A. Wassick, Chattanooga, for appellant.

Bishop, Thomas, Leitner, Mann & Milburn, Chattanooga, for the Kroger Co.

Luther, Anderson & Ruth, Chattanooga, for Consolidated Sales, Inc.

OPINION

PARROTT, Judge.

In this circuit court action Rose L. Paradiso sues the Kroger Company seeking damages allegedly resulting from a fall in the defendant's store.

At the trial below the jury returned a verdict of $4,000.00 in favor of the plaintiff. Thereafter the circuit judge sustained defendant's motion for directed verdict on the ground the plaintiff had failed to prove any actual or constructive notice of the alleged defect or dangerous condition in defendant's equipment. From this order setting aside the verdict and dismissing the suit, plaintiff has appealed.

On May 9, 1970, between 4:00 and 5:00 p.m., 79 year old Rose L. Paradiso went into defendant's store for the purpose of buying some whipping cream. She fell when her leg scraped against a piece of metal projecting from a display rack. The display rack was near a checkout lane with the back of the rack against the manager's office. The projecting metal was a piece of molding on the lower shelf which was six to eight inches above the floor. Apparently a nail which was found on the floor had come loose from the molding permitting it to project some four or five inches from the display rack into the checkout lane.

Mrs. Paradiso had been to the store before but had never observed the display rack. She never saw the projecting metal but as soon as the metal molding cut her leg, she fell.

Unquestionably, under the proof here, Mrs. Paradiso was an invitee on the defendant's premises at the time she fell.

Our law places an obligation on the proprietor to exercise ordinary care and diligence to maintain the prmises in a reasonably safe condition. Kendall Oil Co. v. Payne, 200 Tenn. 600, 293 S.W.2d 43. However, a proprietor is not an insurer of the safety of its invitees, nor will he be held liable for injuries sustained from dangers that are obvious, reasonably apparent or as well known to the invitee as to the owner. Patterson v. Kroger Co., 54 Tenn.App. 243, 389 S.W.2d 283; Ill. Cent. R.R. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213.

Generally, the basis of a proprietor's liability is predicated on the ground of his superior knowledge of a perilous condition on the premises. Kendall Oil Co. v. Payne, supra.

It is also well established law that if the defective or dangerous condition causing the injury was not created by the proprietor or his agent but was caused or created by another or some unknown event, there must be shown either actual or constructive notice on the part of the proprietor or his agents of the dangerous or defective condition before the injured party is entitled to a recovery. Gargaro v. Kroger Grocery & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561.

In cases such as this case where liability is based on constructive knowledge of the dangerous or defective condition, there must be material evidence from which the trier of fact could conclude the condition existed for sufficient time and under such circumstances that one exercising reasonable care and diligence would have discovered the danger.

The length of time the condition existed is not the only factor to be considered in determining whether or not the proprietor had constructive notice of the danger. One must take into consideration the nature of the business, its size, the number of patrons, the nature of the danger, its location along with the foreseeable consequences. Allison v. Blount National Bank, 54 Tenn.App. 359, 390 S.W.2d 716; Howard v. Ammons, 55 Tenn.App. 531, 402 S.W.2d 875...

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48 cases
  • Morris v. Wal-Mart Stores, Inc.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 4, 2003
    ...Inc., 699 S.W.2d 560, 563 (Tenn.Ct.App. 1985); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.Ct.App.1980); Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn.Ct. App.1973). In the matter at hand, Plaintiff's counsel argued in response to Defendant's motion for judgment as a matter of law tha......
  • Hardesty v. Service Merchandise Co., Inc.
    • United States
    • Tennessee Court of Appeals
    • February 5, 1997
    ...Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn.App.1985); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.App.1980); Paradiso v. Kroger Co., 499 S.W.2d 78 (Tenn.App.1973). Plaintiffs allege that Mrs. Hardesty tripped over a bed rail that was on display at Defendant's store. Assuming, arguendo......
  • Bradley v. Wal-Mart Stores, E., LP
    • United States
    • U.S. District Court — Middle District of Tennessee
    • February 18, 2014
    ...be relevant to the determination of whether a defendant had constructive notice of a dangerous condition, see Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn. Ct. App. 1973), the Plaintiff has not made a persuasive argument that evidence of any of these factors supports a finding of constru......
  • Gibson v. U.S.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 18, 1982
    ...law, is the duty "to exercise ordinary care and diligence to maintain the premises in a reasonably safe condition." Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn.App.1973). The proprietor is not an insurer of the safety of the premises; rather, liability is predicated on the basis of the ......
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