Lyle v. Michaelson Asset Management ( 1998 )

KATHLEEN M. LYLE, )
) Davidson Circuit
Plaintiff/Appellant, ) No. 96C-4413
)
VS. )
) Appeal No.
MICHELSON ASSET MANAGEMENT, INC., ) 01A01-9710-CV-00549
and )
CREEKSTONE APARTMENTS ASSOCIATES,)
L.P.
and
)
)
FILED
CREEKSTONE MANAGEMENT, L.L.C., )
June 19, 1998
)
Defendants/Appellees, )
Cecil W. Crowson
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT
AT NASHVILLE, TENNESSEE
HONORABLE WALTER C. KURTZ, JUDGE
Cleve Weathers, #2418
BRUCE, WEATHERS, CORLEY, DUGHMAN & LYLE
First American Center
Suite 2075
315 Deaderick Street
Nashville, Tennessee 37238-2075
ATTORNEY FOR PLAINTIFF/APPELLANT
William B. Jakes, III, #10247
HOWELL & FISHER
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/APPELLEE
VACATED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
WILLIAM C. KOCH, JR., JUDGE
WILLIAM B. CAIN, JUDGE
KATHLEEN M. LYLE, )
) Davidson Circuit
Plaintiff/Appellant, ) No. 96C-4413
)
VS. )
) Appeal No.
MICHELSON ASSET MANAGEMENT, INC., ) 01A01-9710-CV-00549
and )
CREEKSTONE APARTMENTS ASSOCIATES,)
L.P. )
and )
CREEKSTONE MANAGEMENT, L.L.C., )
)
Defendants/Appellees, )
OPINION
The appellant, Kathleen M. Lyle, has appealed from a summary judgment dismissing her
suit against her landlord, the captioned defendants, for injuries received in a slip and fall on a
common area of the leasehold premises.
The judgment of the Trial Court states:
Based on the motion of the defendants, the deposition
of the plaintiff and the affidavits filed by both parties and
their witnesses and the briefs and arguments of counsel, the
Court finds that the defect or dangerous condition complained
of by the plaintiff was equally obvious to both parties and that
the plaintiff is therefore barred by her own negligence. It is
therefore ORDERED that the plaintiff’s complaint be
dismissed at the costs of the plaintiff.
It has been held that the controller of a premises is not liable for injury resulting from a
condition of the premises which is open and obvious. McCormick v. Waters, Tenn. 1980, 594
S.W.2d 385; Kendall Oil Co. v. Payne, Tenn. App. 293 S.W.2d 40 (1955).
However, on March 30, 1998, the Supreme Court announced its opinion in the case of
Coln v. City of Savannah and Vancleave v. Markowski which states:
We agree with the rationale of the majority of courts
which have limited or restricted the traditional “open and
obvious” rule in favor of the Restatement approach. We also
agree that attempting to analyze the duty issue simply by
labeling some conditions “open and obvious,” without
consideration of any surrounding circumstances, promotes
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arbitrary and inconsistent results. Moreover, the open and
obvious rule is inconsistent with our cases which analyze duty
by balancing foreseeability and gravity of harm with
feasibility and availability of alternatives that would have
avoided the harm.
----
Accordingly, while we restrict the once broad
application of the “open and obvious” doctrine, we stress that
duty remains a separate component of a plaintiff’s negligence
action. As we said in Blair v. Campbell, 924 S.W.2d 75(Tenn. 1996), “our adoption of the principles of comparative
fault did not alter the analysis applicable to the common law
concept of duty ... and it is beyond dispute that duty is a
question of law for the trial court’s determination.” Thus,
only after a duty is established does comparative fault come
into play.
----
We reject the defendants’ contentions that restriction
of the open and obvious danger rule will preclude the trial
court from applying mechanisms such as summary judgment
and directed verdict to evaluate cases. By retaining the
separate analysis of duty, and not totally subsuming all cases
by applying comparative fault, the mechanisms of summary
judgment and directed verdict remain viable to evaluate cases
at preliminary states in the proceedings.
The judgment of the Trial Court, quoted above, is based specifically and solely upon the
absolute defense of “open and obvious danger,” which was recognized at the time of the
rendition of the judgment. However, the opinion of the Supreme Court, quoted above, requires
that the judgment of the Trial Court be vacated without prejudice to further pleadings, evidence,
consideration and rulings of the Trial Court consistent with the latest ruling of the Supreme
Court.
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The judgment of the Trial Court is vacated, and the cause is remanded for further
appropriate proceedings. Costs of this appeal are taxed against the appellees.
VACATED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
______________________________
WILLIAM C. KOCH, JR., JUDGE
______________________________
WILLIAM B. CAIN, JUDGE
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