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

                                             -2-
                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.




                                               -3-
       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




                                             -4-
