                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON


MARILYN MORGAN,                           )
                                          )


VS.
              Plaintiff/Appellant,        ) Shelby Circuit No. 57118 T.D.
                                          )
                                          ) Appeal No. 02A01-9604-CV-00072
                                                                                FILED
                                          )                                 May 20, 1997
VELMA McCRORY,                            )
                                          )                               Cecil Crowson, Jr.
              Defendant/Appellee.         )                               Appellate C ourt Clerk



             APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                         AT MEMPHIS, TENNESSEE
                 THE HONORABLE ROBERT A. LANIER, JUDGE




COREY B. TROTZ
Memphis, Tennessee
Attorney for Appellant


LOUIS F. ALLEN
ROBERT B. C. HALE
WARING COX, PLC
Memphis, Tennessee
Attorneys for Appellee




AFFIRMED




                                                                ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
    In this slip and fall case, Marilyn Morgan (“Plaintiff”) filed suit against Velma McCrory
(“Defendant”) for injuries sustained from a fall at Defendant’s apartment. The trial court

granted the Defendant’s motion for a directed verdict at the close of Plaintiff’s proof holding

that Plaintiff’s negligence was at least equal to that of the Defendant because the Plaintiff

failed to traverse an alternative “unobstructed, normal pathway which would have been

only slightly a few feet further out of her way than the other direction.” Plaintiff appeals the

judgment of the court below arguing that the trial court erred in granting the Defendant’s

motion for a directed verdict. For the reasons stated hereafter, we affirm the judgment of

the trial court.



                                           FACTS



         In the fall of 1989, Plaintiff entered into an oral agreement with the Defendant

whereby Plaintiff agreed to rent an apartment located at the rear of 893 South Cooper

Street in Memphis, Tennessee from the Defendant for $215.00 per month on a month to

month basis.



         After living in the apartment for two or three weeks, Plaintiff noticed the cracked

condition of the driveway. Upon living in the apartment for eight to ten months, Plaintiff

complained to the Defendant about the driveway’s dilapidated condition. Receiving no

response from the Defendant, Plaintiff complained another five or six times about the

condition of the driveway. Defendant, however, never repaired the driveway.



         On October 19, 1992 at approximately 7:00 a.m., Plaintiff pulled her garbage cart

to the curb of Cooper Street without incident. On her return trip from the curb to her

apartment, Plaintiff “hung” her right foot on a raised piece of concrete and fell breaking her

right arm. Plaintiff testified that the raised concrete was approximately two to three inches

high. Noting the driveway’s cracked condition, Plaintiff stated that on the day in question

she “was walking, watching, being as careful as I could” but that she was unable to avoid

the fall. Plaintiff further testified that walking on the driveway was like walking on a “land

mine.”



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       Although the driveway was the shortest route from Plaintiff’s apartment to Cooper

Street, Plaintiff admitted that an alternate pathway existed leading from Cooper Street to

her apartment. The walkway led from Cooper Street through the front yard, to a gate at

the side yard, through the backyard and around to Plaintiff’s apartment.



                                           LAW



       The sole issue before this Court is whether the trial court erred in granting the

Defendant’s motion for a directed verdict at the close of Plaintiff’s proof.



       The rule in determining a motion for directed verdict requires the trial judge and the

reviewing court on appeal to look to all of the evidence, take the strongest legitimate view

of it in favor of the opponent of the motion, and allow all reasonable inferences from it in

his favor. Beske v. Opryland USA, Inc., 923 S.W.2d 544, 545 (Tenn. Ct. App. 1996);

Dobson v. Short, 929 S.W.2d 347, 349-50 (Tenn. Ct. App. 1996); Wadlington v. Miles, Inc.,

922 S.W.2d 520, 522 (Tenn. Ct. App. 1995); Bills v. Lindsay, 909 S.W.2d 434, 438 (Tenn.

Ct. App. 1993); Daniels v. White Consolidated Indus., Inc., 692 S.W.2d 422, 424 (Tenn.

Ct. App. 1985). The court must discard all countervailing evidence, and if there is then any

dispute as to any material determinative evidence, or any doubt as to the conclusion to be

drawn from the whole evidence, the motion must be denied. Wharton v. Transport Corp.

v. Bridges, 606 S.W.2d 521, 525 (Tenn. 1980); Crosslin v. Alsup, 594 S.W.2d 379, 380

(Tenn. 1980); Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977) Beske, 923 S.W.2d

at 545; Dobson, 929 S.W.2d at 349-50; Bills, 909 S.W.2d at 438; Flynn v. Shoney’s, Inc.,

850 S.W.2d 458, 459-50 (Tenn. Ct. App. 1992); Tennessee Farmers Mut. Ins. Co. v.

Hinson, 651 S.W.2d 235 (Tenn. Ct. App. 1983).



       Under the doctrine of comparative negligence as adopted in Tennessee, a plaintiff

who is at least fifty percent negligent is barred from recovery. McIntyre v. Balentine, 833

S.W.2d 52, 57 (Tenn. 1992). In Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994), our

Supreme Court held that issues involving implied assumption of the risk should be



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analyzed under the principles of comparative fault. The Court explained that:

              Attention should be focused on whether a reasonably prudent
              person in the exercise of due care knew of the risk, or should
              have known of it, and thereafter confronted the risk; and
              whether such a person would have behaved in the manner in
              which the plaintiff acted in light of all the surrounding
              circumstances, including the confronted risk.

Id. at 905.


       In Manes v. Hines & McNair Hotels, 197 S.W.2d 889 (Tenn. 1946), plaintiff and her

husband rented a room in an apartment building for twelve dollars per month.

Approximately four feet from the door of plaintiff’s room, there was a wet spot on the floor

caused by water dripping from an overhead hot water pipe. On November 3, 1943, plaintiff

came out of her room, closed the door, took two or three steps and then slipped and fell

on the puddle of water in the floor suffering a broken hip. Plaintiff testified that she knew

about the water accumulation for many months and that she passed by it several times a

day. Noting that plaintiff knew about the water dripping and standing on the floor for many

months, the court held that plaintiff’s negligence barred her recovery as a matter of law.

Id. at 891.



       In Merritt v. Carr, 621 S.W.2d 740 (Tenn. Ct. App. 1980), plaintiff operated a dairy

farm for the defendant. Plaintiff knew of two open drains in a holding pen and suggested

that defendant provide covers for the drains to prevent injury to a cow from stepping in the

open drains. Defendant did not provide the covers, and plaintiff continued to use the pen

with the open drains. This Court held that the plaintiff’s knowledge of the danger was equal

to or greater than that of the defendant and that continued use of the pen after recognizing

the danger precluded recovery for plaintiff’s injuries when a cow stepped in the open drain

and fell on him. In affirming a directed verdict for the defendant, this Court stated:

              The Plaintiff not only knew of the defects about which he
              complains but appreciated the dangers connected therewith as
              fully, if not more so, than anyone else and with this knowledge
              he voluntarily entered the holding pen with the herd of cattle.

Id. at 745.



       In Hamilton v. Moore, 14 Tenn.App. 584 (1932), plaintiff rented a house from the


                                             4
defendant on a week to week basis. Plaintiff slipped and fell with the breaking of one of

the rear outside steps leading to the house. Plaintiff complained to the defendant two

months prior to the accident, and defendant promised to have the steps repaired. In

affirming the trial court’s grant of a directed verdict for the defendant, this Court stated that:

                [T]he lease was from week to week, so that the tenant could
                vacate promptly upon the breach. Instead, [plaintiff] remained
                in the house for about six weeks after the first promise [to
                repair] was made. The defect in the steps and the danger
                from injury therefrom were well known to her and yet she made
                constant use of the steps. . . .The plaintiff chose to remain in
                the house and take the risk of injury until the promise to repair
                should be performed. The law does not make the landlord an
                insurer to the tenant.

Id. at 586.



       In Talley v. Curtis, 129 S.W.2d 1099 (Tenn. Ct. App. 1939), plaintiff fell and was

injured while descending a flight of four steps which led from a side porch to the ground.

At the time of his injury, plaintiff had been occupying the house in question as a month to

month tenant of the defendant for approximately three years and ten months. Having

inspected the steps approximately four months before plaintiff’s fall, plaintiff and defendant

knew of the defective condition of the steps. Although defendant had stated that he would

have to install new steps, the defendant did not repair the steps, and plaintiff continued to

use the steps on a daily basis. In affirming the trial court’s dismissal of plaintiff’s suit, this

court stated:

                A tenant cannot assume a known serious risk from defects in
                the premises and expect to recover damages from the landlord
                because his promise to repair had not been performed. . . . In
                this case we must hold that the plaintiff’s negligence in using
                steps known to be dangerous barred any right of action for her
                injuries.

Id. at 1103.



       In Cummings v. City of Memphis, No. 02A01-9506-CV-00122, 1996 WL 544366

(Tenn. Ct. App. Sept. 25, 1996), a case similar to the case at bar, the defendant, City of

Memphis, and the defendant, White Contracting, Inc., entered into a contract to renovate

Ontario Street, the street on which plaintiff resided. As a result of the construction, plaintiff

and her neighbors’ yards were “all torn up” for a period of several months. While


                                                5
attempting to find a construction manager to assist in clearing a path to her driveway,

plaintiff chose to walk through a pile of debris consisting of pipes, wire and bricks in order

to avoid walking through a muddy area. Plaintiff fell when her foot slipped on some pipes.

In noting that there were other alternative paths that the plaintiff could have chosen, this

Court held that the plaintiff was at least fifty percent negligent and was thereby precluded

from recovery. Id. at *2.



       In the present case, it was uncontroverted that the driveway leading from Plaintiff’s

apartment to Cooper Street was cracked and in poor condition. Plaintiff noticed the

cracked condition of the driveway during the fall of 1989, three years before her accident.

Plaintiff complained to the Defendant about the cracked driveway on at least six prior

occasions, and Plaintiff stated that walking on the driveway was like walking on a “land

mine.” Plaintiff admitted that there was an alternative path she could have taken, even

though it was less convenient.



       Because Plaintiff knew and appreciated the dangers associated with the cracked

condition of the driveway and because Plaintiff admitted that there was an alternative route

she could have taken, the trial court did not err in directing a verdict in favor of the

Defendant.




       The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Appellant for which execution may issue if necessary.




                                                         HIGHERS, J.



CONCUR:




FARMER, J.


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LILLARD, J.




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