                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON

          JAMES DONALD POWELL, ET AL. v. M. P. GURKIN, ET AL.

                  A Direct Appeal from the Circuit Court for Fayette County
                    No. 3822; The Honorable Jon Kerry Blackwood, Judge



                    No. W1999-00827-COA-R3-CV - Decided July 10, 2000


This is a personal injury action arising out of a slip-and-fall accident which occurred at a laundromat
owned by the Gurkin Defendants. The fall was allegedly caused by a hole in the floor of the
laundromat which was created by the Defendant Hardin in attempting to locate and repair a water
leak in the laundromat. The Plaintiff fell while walking into the laundromat carrying his laundry
basket. He brought the present suit claiming that the Defendants were negligent in failing to repair
the hole or providing adequate warning of the dangerous condition. The Defendants filed a Motion
for Summary Judgment claiming that the Plaintiff failed to use reasonable care in confronting a
known risk. After arguments of counsel, the trial court granted both Defendants’ Motions for
Summary Judgment.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part,
Reversed in Part and Remanded

HIGHERS , J., delivered the opinion of the court, in which CRAWFORD , P.J., and FARMER , J., joined.

Kendall Reeves, Timothy J. Williams, Memphis, For Appellants

Robert B.C. Hale, Memphis, For Appellees, M. P. Gurkin and Sons, etc.
James S. Wilder, III, Memphis, For Appellee, Curtis Hardin Plumbing Company


                                             OPINION

       In this personal injury action, the Plaintiffs, James and Bobby Powell, appeal from the order
of the Fayette County Circuit Court granting the Defendants’ motions for summary judgment.


                                  Facts and Procedural History

        M.P. Gurkin, Sr., M.P. Gurkin, Jr., Charles Gurkin and George Gurkin (collectively referred
to as “Gurkin” or “Gurkin Defendants”) own and operate Gurkin’s Auto Laundry (“Laundromat”)
in Moscow, Tennessee. Sometime toward the end of February 1996, a water leak was discovered
inside the laundromat. As a result of this discovery, one of the owners of the laundromat called
Curtis Hardin Plumbing Company (“Hardin”) to locate and repair the leak. During the course of
the repair work, Hardin had to excavate concrete, thereby creating a hole in the floor. Hardin was
unable to locate and repair the leak prior to leaving the job on the afternoon of Friday, March 1. He
left the laundromat that afternoon intending to return on the following Monday morning to resume
work. Prior to leaving, Hardin instructed Cecil Crawford, a Gurkin’s employee, to place signs in
the store windows alerting customers of the hole in the floor. Hardin also undertook to mark the
construction by placing barrels around the hole.1 Finally, Hardin instructed Cecil Crawford that the
laundromat should be closed until the job was finished. However, after consulting with one or more
of the owners, Crawford did not close the laundromat.

        James Powell (“Appellant”) entered the laundromat on Sunday, March 3, 1996. He entered
carrying his laundry basket in front of his body, thereby obstructing his view of the floor. Upon
entering, he proceeded in the direction of the washing machines where he stepped into the hole in
the floor and fell. Appellant noticed construction work being done on the outside of the premises
as he approached the laundromat. However, he claims that there was no indication that work was
being done on the inside of the laundromat.

       Appellant brought the present suit asserting claims for negligence. After answering the
complaint, both Defendants filed motions for Summary Judgment. On July 6, 1999, the trial court
granted the Defendants’ motions for summary judgment and dismissed the case. This appeal
followed.


                                                Law and Analysis

        Summary judgment is appropriate only when the moving party demonstrates that there are
no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. Tenn.
R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). We review the summary
judgment motion as a question of law in which our inquiry is de novo without a presumption of
correctness. Finister v. Humboldt General Hosp., Inc., 970 S.W.2d 435, 437 (Tenn. 1998); Robinson
v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). We must view the evidence and all reasonable
inferences in the light most favorable to the nonmoving party. Byrd, 847 S.W.2d at 210-11. If both
the facts and conclusions to be drawn therefrom permit a reasonable person to reach only one
conclusion, then summary judgment is appropriate. Robinson, 952 S.W.2d at 426; Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997). Guided by the well-settled principles applicable to summary
judgment analysis, we shall consider the claims asserted against both Defendants.



                                                      I. Hardin


       1
           The “barrels” that w ere placed arou nd the hole w ere actually garbag e cans.

                                                           2
        In Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), the Tennessee Supreme Court
considered the negligence principles which apply to premises liability cases. The court began its
analysis by noting the traditional elements of a negligence claim: (1) a duty of care owed by the
defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting
to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause.
Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993).

        The first consideration, the duty element, is a question of law requiring the court to determine
"whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at
the hands of the defendant." Id. at 870 (quoting W. Page Keeton, Prosser & Keeton on Torts, § 37
at 236 (5th ed. 1984)). We recognize that Hardin, as a independent contractor, can have liability for
the Appellant’s injury. See Broome v. Parkview, Inc., 359 S.W.2d 566 (Tenn. Ct. App. 1962)(“A
contractor, who performs work on premises to which the public is invited during the course of the
work, is liable for injuries caused by his acts in rendering the premises unsafe and dangerous and
negligently leaving them in that condition.”)(emphasis added). However, we need not ponder long
to conclude that no liability exists under the present facts.

         The law does not require that Hardin be the absolute guarantor of the Appellant’s safety.
Rather, the law only requires that Hardin take all reasonable measures to prevent an injury.
Reasonable minds could not differ on the conclusion that Hardin took all reasonable precautions to
prevent an injury. Upon leaving the laundromat on Friday, Hardin took numerous precautions in
order to make the premises safe. Hardin instructed a Gurkin’s employee to place warning signs in
the window, placed barrels around the hole, and even instructed the Gurkin’s employee that the
laundromat should be closed. In short, Hardin took all reasonable measures to ensure that an
accident would not occur.2 The fact that the premises owner failed to implement the precautions
which Hardin suggested does not serve to place liability on Hardin. This fact serves only to place
liability, if any exists, on the owner of the premises.

        There can be no doubt that summary judgment was appropriate as to Hardin. Even if the
Appellant could show that a duty was owed by Hardin, it is clear that this duty was not breached.
Therefore, the trial court was correct in granting Hardin’s motion for summary judgment, and we
will not disturb that ruling.




                                                       II. Gurkin



         2
           Appellant contends that Hardin could hav e taken further m easures to p revent his injury. H owever, H ardin
is not required to exhaust every conceivable precaution, but, rather, is required only to take all reasonable p recautions.
Therefo re, there is no va lue in our co nsideration o f what further me asures might h ave been employed .

                                                            3
        As with the previous discussion, our consideration of the negligence claim against Gurkin
begins with the traditional elements of a negligence claim. Those elements must be considered in
the context of the procedural posture in which this case arises, namely a summary judgment
dismissal. In that regard, the Appellant is entitled to the strongest legitimate view of the evidence
and is entitled to all reasonable inferences that may be drawn from the evidence, discarding all
countervailing evidence. Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998) (citing Byrd v. Hall,
847 S.W.2d 208, 210-11 (Tenn. 1993)).

        Duty is the legal obligation owed by defendant to plaintiff to conform to a reasonable person
standard of care for the protection against unreasonable risks of harm. See Pittman v. Upjohn Co.,
890 S.W.2d 425, 428 (Tenn. 1994). Generally, "[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 defendant's conduct
outweigh the burden upon defendant to engage in alternative conduct that would have prevented the
harm." McCall, 913 S.W.2d at 153.

        Owners generally have a duty to maintain their premises in a reasonably safe condition.
Eaton v. McLain, 891 S.W.2d 587, 593 (Tenn. 1994). A premises owner may owe a duty to visitors
if the owner can anticipate harm, even if a hazard is open and obvious. See Coln v. City of
Savannah, 966 S.W.2d 34 (Tenn. 1998). "Such reason to expect harm to the visitor from known or
obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's
attention may be distracted, so that he will not discover what is obvious, or will forget what he has
discovered, or fail to protect himself against it." Jackson v. Bradley, 987 SW.2d 852, 854 (Tenn. Ct.
App. 1998)(quoting Restatement (Second) of Torts, § 343(A) (comment f)).

        Gurkin cites to the case of Eaton v. McLain in support of their contention that no duty arose
in the present case.3 891 S.W.2d 587 (Tenn. 1994). In Eaton, the plaintiff fell down a flight of stairs
after stepping through a doorway that she believed to be the bathroom. The Tennessee Supreme
Court, in dismissing the complaint, stated that “Ms. Eaton’s failure to turn on any lights, coupled
with her willingness to open the door and step into an unfamiliar area, is such a radical departure
from reasonable conduct under the circumstances that the McLains could not have reasonably
foreseen that conduct and its consequences.” Id. at 594. Just as Ms. Eaton could have avoided an
injury simply by turning on a light, Gurkin contends that the Appellant’s injury could have been
avoided by the “simple act” of positioning his laundry basket in a manner which would have allowed
him to see the floor.

       We do not, however, consider the rule in Eaton to be dispositive of the present appeal.
Whereas Ms. Eaton’s actions were a “radical departure” from reasonable conduct, the Appellant’s
entering the laundromat with a laundry basket in front of him was neither unreasonable nor
unforeseeable.

In analyzing the defendant’s duty, the Eaton court made the following statement,

       3
           Gurkin refe rs to this argume nt as the “step in the dark rule.”

                                                             4
         As indicated in [Doe v. Linder Constr.], the question of whether the McLains' general
         duty of care encompasses the duty to guard against the acts set forth in the complaint
         involves an analysis of the foreseeability of the risk to which Ms. Eaton was exposed.
         In other words, the issue is whether Ms. Eaton has made "any showing from which
         it can be said that the defendants reasonably knew or should have known of the
         probability of an occurrence such as the one which caused [her] injuries."

Eaton, 891 S.W.2d at 594(emphasis added). While we do not disagree that Ms. Eaton’s actions were
both unforeseeable and unreasonable, we do not consider the Appellant’s actions in the present case
to be such. In fact, it is certainly foreseeable that any person entering a laundromat will be carrying
a laundry basket full of clothes. It is also reasonable that a person may be carrying that basket in
front of his body. We do not believe that a person carrying a laundry basket in such a manner enters
at his own peril. Moreover, carrying a basket in such a manner certainly should not relieve the
premises owners of their duty to warn their customers of a large hole in the floor.4 “The pertinent
question is whether there was any showing from which it can be said that the defendants reasonably
knew or should have known of the probability of an occurrence such as the one which caused the
plaintiff's injuries. Doe v. Linder Constr. Co., Inc., 845 S.W.2d 173, 178 (Tenn. 1992)(citing
Corbitt v. Ringley-Crockett Inc., 496 S.W.2d 914 (Tenn. Ct. App. 1973). The facts before us clearly
indicate that the Defendants had a duty to warn the Appellant of the dangerous condition in the
laundromat. We are not persuaded that any actions of the Appellant relieved the Defendants of this
duty.

        In essence, Gurkin’s argument is a somewhat veiled version of the “open and obvious” rule.
Under that rule, a premises owner will not be liable for an injury which occurs due to a condition
which was "obvious, reasonably apparent, or as well known to the invitee [or licensee] as to the
owner." Kendall Oil Co. v. Payne, 293 S.W.2d 40, 42 (1955); see also McCormick v. Waters, 594
S.W.2d 385, 387 (Tenn. 1980). However, the open and obvious doctrine was abrogated by the Coln
decision, wherein the pertinent consideration became whether 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. Coln, 966 S.W.2d at 37. If so, the defendant has a duty
to act with reasonable care and the comparative fault principles apply under McIntyre v. Balentine,
833 S.W.2d 52 (Tenn. 1992). Id.

        Having determined that a duty of care was owed to the Appellant, we believe the trial court
erred in dismissing the complaint against the Gurkin defendants. The pertinent questions now
become whether the Defendants breached their duty and, if so, whether that breach caused the
Appellant’s injuries. Issues of breach and causation are generally questions decided by the trier of

         4
            Gurkin also points out that the Appellant could just have easily fallen over “trash cans, detergent boxes, or
baskets.” We refuse to deal in such hypotheticals, nor does such an argument have any bearing on the present facts. If
the Appellant had fallen over an object wh ich he had re ason to kno w might be o n the floor, then , perhaps, o ur analysis
would be different. However, absent some warning from the premises owner, no customer should expect to encounter
a large hole in the floor, and the position in wh ich one car ries his laundry b asket, if foreseeable and reasonable, has no
effect on the p remises ow ner’s duty.

                                                             5
fact. Kelley v. Johnson, 796 S.W.2d 155 (Tenn. Ct. App. 1990)(citing Frady v. Smith, 519 S.W.2d
584, 586 (Tenn. 1974); Senters v. Tull, 640 S.W.2d 579, 582 (Tenn. Ct. App. 1982). These
questions become questions of law only when the facts and inferences drawn from the facts permit
reasonable persons to reach only one conclusion. Id.(citing Evridge v. American Honda Motor Co.,
685 S.W.2d 632, 635 (Tenn. 1985); Haga v. Blanc & West Lumber Co., 666 S.W.2d 61, 65 (Tenn.
1984).

         Based on the record, we believe there to be a dispute as to the material facts in the case
sufficient to preclude summary judgment at this time. Specifically, questions exist as to the
warnings which Gurkin provided and the adequacy of those warnings. Our review of the record
leads us to conclude that reasonable minds could differ on the pertinent questions, therefore we must
reverse the grant of summary judgment in favor of the Gurkin Defendants.5 The case is remanded
to the trial court so that the Appellant may have the opportunity to present his evidence of Gurkin’s
negligence. We express no view on the remaining elements of the Appellant’s claim.6


                                                       Conclusion

       For the foregoing reasons, the decision of the trial court granting summary judgment is
affirmed as to the Defendant Hardin. The decision of the trial court granting summary judgment to
the Gurkin Defendants is reversed and the case is remanded for further proceedings. Costs of this
appeal shall be taxed one-half to the Appellants, James and Bobbye Powell, and one-half to the
Appellees, M.P. Gurkin, Sr., M.P. Gurkin, Jr., Charles Gurkin and George Gurkin, for which
execution may issue if necessary.




         5
            We reject Gurkin’s argument that reasonable minds could not disagree that the Appellant was guilty of
negligence at least equal to, if not greater than, their own. Where reasonable minds can differ, as we believe they can
in the present case, the apportionment of fault is proper ly left to the trier of fact. See Prince v. St. Thomas Hospital, 945
S.W.2d 731 (T enn. Ct. App. 1996).
         6
            We do not wish to imply any apportio nment of fault in the present case . That dete rmination sho uld be left
to the trier of fact. Our sole conclusion is that reasonable minds could differ as to the material aspects of this case,
thereby pre cluding sum mary judgm ent.

                                                              6
