               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             September 14, 2016 Session

             VICKI MATHERNE, ET AL. v. JERRY WEST, ET AL.

                  Appeal from the Circuit Court for Sevier County
                   No. 2012-1383-III    Rex Henry Ogle, Judge


             No. E2015-02061-COA-R3-CV-FILED-OCTOBER 28, 2016


This appeal concerns premises liability in a slip and fall case. Vicki Matherne and
Rodney Matherne (―Plaintiffs‖) sued Jerry West and Carolyn West (―the Wests‖), owners
of a vacation cabin rented by the Mathernes, and American Patriot Getaways (―APG‖),
which managed the cabin, (collectively, ―Defendants‖) after Mrs. Matherne injured
herself falling off an elevated parking level at the cabin. Defendants filed a motion for
summary judgment. The Circuit Court for Sevier County (―the Trial Court‖) granted
Defendants‘ motion, finding that any hazardous condition was open and obvious and that
Mrs. Matherne was at least 50% at fault. Plaintiffs appeal to this Court. We hold that
there are genuine disputed issues of material fact regarding what Defendants could or
should have done to prevent the risk of a fall from the elevated parking level and whether
Mrs. Matherne was at least 50% at fault. Therefore, the Trial Court erred in granting
Defendants‘ motion for summary judgment. We reverse the judgment of the Trial Court
and remand this case for further proceedings.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Timothy J. Gudmundson, Knoxville, Tennessee, for the appellants, Vicki Matherne and
Rodney Matherne, individually and on behalf of Samuel Troxclair.

Kenneth W. Ward, Knoxville, Tennessee, for the appellees, Jerry West, Carolyn West,
and American Patriot Getaways, LLC.
                                      OPINION

                                     Background

              In December 2011, Plaintiffs and their family took a vacation to Sevier
County, Tennessee. Plaintiffs, Louisiana residents, rented a cabin called ―Bear House
Rock‖ owned by the Wests and managed by APG. Plaintiffs‘ vehicles parked at the
cabin were a rented Yukon and Mr. Matherne‘s pickup truck. The cabin had two levels
of parking—a lower level and an upper level, which was elevated and on a hill. A black
railing surrounded a portion of the upper parking level but not the full length of both
sides as shown in exhibit 8 to Mrs. Matherne‘s deposition submitted by Defendants in
their statement of undisputed material facts.




             The day after arriving, Mrs. Matherne went out with her family for the
evening. The Yukon was parked on the upper parking level. Mrs. Matherne took her
granddaughter to the Yukon and leaned into the Yukon to buckle her granddaughter in
the car. As Mrs. Matherne exited the vehicle by backing out and down, she fell off the
upper parking level to the lower parking level and allegedly injured her right arm.

            In December 2012, Plaintiffs sued Defendants for damages related to Mrs.
Matherne‘s fall. Defendants filed a motion for summary judgment. Defendants

                                          -2-
submitted Mrs. Matherne‘s deposition as an exhibit to their statement of undisputed
material facts, which we quote from in part:

      Q. But what I would like for you to do in your own words is tell me what
      you believe that either Jerry West, Carolyn West, who are the two owners
      of the cabin, or American Patriot Getaways, LLC, either did or didn‘t do
      that caused you to fall.
      A. Like if I would have owned it, what I would have done to make -- to
      assure people wouldn‘t fall? Is that what you‘re asking me?
      Q. Well, no. I just want to know what you believe that the defendants did
      that either caused you to fall or didn‘t --
      A. Well, proper lighting, for one.
      Q. Okay. Tell me what proper lighting would have been.
      A. Proper lighting would have been maybe lighting that‘s somewhere
      pointed directly onto that area or perhaps some striping paint that is visible
      at night.
      Q. Okay.
      A. Maybe some reflectors on the black part itself because, once that motion
      detector light goes off, the sky is it.
      Q. Sure. Now, let‘s take these one at a time.
      A. Okay.
      Q. If there had been lighting shining directly on the area where you fell,
      how would that have prevented you from falling based on what you‘ve
      described as how you fell?
      A. I would have known not to reach for the rail even though I saw it out the
      periphery of my vision.
      Q. Okay. How would you have known not to reach for the railing?
      A. Because if it was my railing, I would have had it go all the way to the
      end and I would have had reflectors, meaning --
      Q. Okay. Let‘s back up, because we‘re getting into a lot of -- you told me
      three things. You talked about proper lighting.
      A. Correct.
      Q. You‘re talking about a striping paint and you talked about reflectors.
      A. Right.
      Q. So what I want to talk to you about is the lighting, that if there had been
      lights shining directly on the area where you fell, how would that have
      caused or prevented you from falling given the way that you described how
      you fell?
      A. It wouldn‘t have.

                                           ***
                                           -3-
Q. Okay. Well, then, let‘s go back to my question. I want you to tell me
what my clients did or didn‘t do that caused you to fall.
A. Okay. Not extending the safety -- I don‘t know what you want to call it,
fence.
Q. The black wrought iron fence?
A. Right.
Q. Okay.
A. All the way to the end.
Q. Now, based upon what you‘ve told me already, that before you fell you
knew that the black wrought iron fence did not extend all the way to the
road --
A. Correct.
Q. And before you fell, you knew that there was a drop-off of differing
heights depending upon how close you were to the road.
A. Correct.

                                    ***

Q. Now, my question was, if you were able to put your left foot down
entirely on the concrete, why were you unable to put your right foot down
entirely on the concrete?
A. I‘m not saying I was or wasn‘t. I attempted to do that.
Q. Okay. And my question, was there room for you to put your right foot
down entirely on the concrete when you removed it from the step board?
A. Yes.

                                    ***

Q. And why is it only possible that you would not have fallen if you had
both feet flat on the concrete?
A. There could be multireasons why.
Q. List them all, please.
A. I mean, if I came down faster on that, I might have lost my footing on
that foot and went to fall and there was nothing to stop me from falling off
the edge.
Q. All right. And you knew that there was nothing to stop you from falling
off the edge when you came out of the house with your granddaughter?
A. In that section that the Yukon was pulled up -- and remember, the back
door was open here.
Q. And you knew --
A. Maybe I misjudged a little, but –

                                    -4-
      Q. Ma‘am, my question is, when you and your granddaughter left the
      house, you knew that the black fence did not extend the entire way?
      A. Correct.
      Q. And when you and your granddaughter left the house and walked up
      through there, you knew that there was a risk of falling off of the ledge;
      correct?
      A. There is a risk I could fall off this chair. So, yes, correct.
      Q. So you had already warned the boys about that risk by prohibiting them
      from playing up there?
      A. I didn‘t warn them of a risk. I told them they were not allowed up there.

             A hearing was conducted on Defendants‘ motion for summary judgment.
In September 2015, the Trial Court entered a detailed order granting summary judgment
to Defendants which reads as follows, in part:

              Further, pursuant to Rule 56.04 of the Tennessee Rules of Civil
      Procedure, this Court finds the following undisputed material facts:
              1. On December 28, 2011, Vicki Matherne and her family traveled
      from their home in Louisiana to Sevier County, Tennessee.
              2. Mrs. Matherne came to Tennessee with her husband Rodney, her
      son Sam and two of his friends, her daughter Stephanie and Stephanie‘s
      fiancé Stephen, and Mrs. Matherne‘s daughter Sophia and granddaughter
      Shea.
              3. The family traveled in two vehicles, a rented Yukon and Mr. and
      Mrs. Matherne‘s pickup truck.
              4. Vicki Matherne and her family rented a property located at 607
      Quill Gordon Court in Pigeon Forge, Tennessee.
              5. Mrs. Matherne took care of the rental arrangements for the
      property by booking online.
              6. Mrs. Matherne and her family arrived at the property around 1:00
      or 2:00 a.m. after driving straight through from Louisiana, a 12-hour drive.
              7. When Mrs. Matherne and her family arrived at the rental office,
      they used the night drop pickup box to pick up keys for the property.
              8. Mrs. Matherne and her family were staying in a cabin known as
      ―Bear House Rock‖.
              9. The cabin has two levels of parking areas outside the front.
              10. When Mrs. Matherne booked this particular cabin online she had
      seen pictures on the advertisement that showed the upper and lower levels
      of parking in front of the cabin.
              11. That night when Mrs. Matherne arrived at the cabin, she noticed
      that there were two separate levels for parking.
                                          -5-
        12. When Mrs. Matherne arrived at the property that night, she saw
the black wrought iron rail around a portion of the upper parking area.
        13. That first night, Mrs. Matherne could tell that the corner of the
upper parking lot that is the highest point was very high from the lower
point in the lower parking area.
        14. When the family arrived, they backed the pickup truck back into
the lower parking area closest to the front door in order that they could
unload everything that was in the back of it.
        15. When they arrived, Mrs. Matherne got out of the Yukon while it
was parked outside in the street.
        16. Mrs. Matherne took the key from her husband and went and
opened the door and took the kids inside, and then the rest of her family
started unloading the pickup truck.
        17. Once Mrs. Matherne went inside that first night she did not come
back out.
        18. Because it was so late when they arrived, the children all just
went to bed.
        19. The next morning when Mrs. Matherne got up, she walked
outside and looked around and noticed that it was too steep to walk around
the back of the cabin as it was on a hill, and also observed the upper and
lower parking areas in the daylight and noticed there was a big difference in
height between the upper and lower levels.
        20. The next morning when the children were up, Mrs. Matherne
told them not to play on the upper level parking lot because of the height
drop, or behind the cabin as it was on a hill.
        21. Mrs. Matherne told the children to stay off the upper level
parking area, particularly the area at the corner surrounded by the wrought
iron fence, as that is the tallest distance from the lowest parking area.
        22. The next morning when Mrs. Matherne looked at the parking
area, Mrs. Matherne saw the railing around the upper parking level and
knew that it did not go all the way to the street.
        23. Prior to her fall, Mrs. Matherne knew that because the railing did
not go all the way to the street, there was the potential for someone to lose
their footing when walking too close to the edge. Therefore, she told the
children to stay off of the upper level parking area.
        24. Prior to her fall, specifically the next morning after arriving, Mrs.
Matherne knew and appreciated that the upper and lower level parking lots
had a difference in height and the railing did not go all of the way to the
street, and so walking close to the edge and losing footing might cause a
person to fall downhill.

                                       -6-
        25. The next morning, the family decided to park the Yukon on the
upper parking area.
        26. Mrs. Matherne told her husband to put the Yukon in the upper
level parking area.
        27. Mrs. Matherne instructed her husband to move the Yukon onto
the upper level parking area as both a safety precaution to prevent the kids
from going up onto the upper level area to play and to keep the vehicle off
the street.
        28. When the Yukon was in the upper level parking area, there was
enough room to get on the upper level parking area and walk around the
Yukon.
        29. The next day after they arrived at the cabin, Mrs. Matherne
stayed at the cabin while rest of the family went to visit Cades Cove in the
Yukon.
        30. Mrs. Matherne had never stayed in this cabin before.
        31. Mrs. Matherne had been to the Pigeon Forge area three or four
other times before.
        32. The rest of the family arrived back to the cabin from the trip to
Cades Cove at around 2:00 or 3:00 p.m.
        33. When the rest of the family arrived back from Cades Cove, the
Yukon was parked up on the upper parking area.
        34. After the group arrived back from Cades Cove, everybody ate
and then Mrs. Matherne and her husband and the three boys and her
granddaughter decided to go to Gatlinburg to an arcade.
        35. It was around 6:00 p.m. when Mrs. Matherne and her husband
decided to take the children to the arcade in Gatlinburg.
        36. Mrs. Matherne and her granddaughter, Shea, walked out of the
cabin first.
        37. After stepping out of the cabin, Mrs. Matherne and her
granddaughter walked, holding hands, all the way up the lower parking area
to the street, and then turned around and walked up the upper parking area
        38. When Mrs. Matherne walked up from the street onto the upper
parking area level, she walked with her granddaughter in front of her.
        39. Mrs. Matherne‘s granddaughter then stopped a little bit before
the rear door of the Yukon and Mrs. Matherne went by the side of her
granddaughter around her to be able to open the door of the Yukon.
        40. When Mrs. Matherne went alongside and around her
granddaughter, she was on the side closest to the ledge and her
granddaughter was closer to the Yukon.
        41. As Mrs. Matherne walked around her granddaughter, she was
watching where she was going because she knew the drop off was there.
                                     -7-
        42. The Yukon was pulled up enough that the back door did not hit
the railing when it was opened, but Mrs. Matherne could see the railing
from the back door of the Yukon.
        43. The Yukon was far enough away from the black railing that Mrs.
Matherne could have opened the front door of the Yukon.
        44. When Mrs. Matherne opened the door, her granddaughter
climbed into the Yukon and Mrs. Matherne followed her in and buckled her
into one of the rear seats.
        45. Once Mrs. Matherne got her granddaughter buckled into the
vehicle, she stepped down from the vehicle.
        46. When she was stepping down from the Yukon, Mrs. Matherne
put her left foot back and connected with the concrete, but when she put her
right foot down, only half of her foot made it onto the concrete and she fell.
        47. Mrs. Matherne stepped down with one foot, but when she went
to step down with her other foot, she started to fall.
        48. When she was falling, Mrs. Matherne reached for the railing
because she could see it, but then she fell off of the ledge.
        49. The Yukon was pulled up far enough that when the door was
wide open there was a space, and then the rail on the other side.
        50. As Mrs. Matheme was backing out to step out of the Yukon, she
appreciated and understood that there was a drop off behind her.
        51. Mrs. Matherne does not know why she fell.
        52. As she was falling, Mrs. Matherne reached for the rail with her
right arm, and landed on her right shoulder and then rolled onto her arm.
        53. Mrs. Matherne ended up about half way down the driveway.
        54. After the fall, Mrs. Matherne and her husband and the boys and
her granddaughter got into the Yukon and went on to the arcade in
Gatlinburg.
        55. To get back into the Yukon, Mrs. Matherne went to the end of
the driveway and back along the upper parking area level and climbed into
the Yukon, pulling up into it with her left hand.
        56. When Mrs. Matherne went outside of the cabin with her
granddaughter before she fell, it was light enough that she could see the
black railing.
        57. As Mrs. Matherne was walking up the driveway toward the back
door to get in the Yukon, at no point did either she or her granddaughter
almost fall off the drop off.
        58. Mrs. Matherne knew the drop off was there when she was
walking toward the back door of the Yukon.
        59. Mrs. Matherne knew that if she stepped off of the drop off, she
could fall.
                                     -8-
        60. Mrs. Matherne did not report her fall to the office at any point
during her stay.
        61. Mrs. Matherne did not report her fall to Patriot Getaways until
after she hired her attorney.
        62. In her deposition, Mrs. Matherne identified a picture as being
either identical or similar to the photograph that she saw when she went on
the website for Patriot Getaways that showed the two different levels of
parking.
        63. Mrs. Matherne booked the vacation rental within about 4-6
weeks of the trip.
        64. Somewhere around 4-6 weeks before Mrs. Matherne came to
Pigeon Forge for her trip, Mrs. Matherne had seen a photograph of the dual
parking levels.
        65. Before Mrs. Matherne fell, she knew that the black wrought iron
fence did not extend all of the way to the road.
        66. Before Mrs. Matherne fell, she knew that there was a drop off of
differing heights between the upper and lower parking levels, depending on
how close she was to the road.
        67. The only reason that Mrs. Matherne is claiming she fell is
because the black wrought iron fence did not extend all the way to the road.
        68. As Mrs. Matherne was stepping down from the Yukon, and put
her second (right) foot down, there was enough room for her to put her
right foot down entirely on the concrete when she removed it from the
running board of the Yukon.
        69. When Mrs. Matherne and her granddaughter left the house and
walked down the driveway and up the second level of parking area, she
knew there was a risk of falling off of the ledge.
        70. Before she fell, Mrs. Matherne had told the children not to go up
onto the upper parking area because she knew there was a chance that one
of them could fall off and get hurt.
        71. Mrs. Matherne knew that as she walked toward the upper
parking area there was a risk that if she was not careful, she could fall off
the edge.
        72. As Mrs. Matherne put her granddaughter into the back seat of the
Yukon, she knew that she could fall off the ledge and get hurt.
        73. As Mrs. Matherne was getting out of the Yukon, she knew that
there was a risk that if she wasn‘t careful, she could fall off of the ledge and
get hurt.
        74. There was nothing that prevented either Mrs. Matherne or her
husband or any other family member from backing the Yukon out to where
it was not beside the ledge between the upper and lower parking levels.
                                      -9-
        75. Mrs. Matherne made the decision to park the Yukon up on the
upper level parking area.
        76. As Mrs. Matherne was putting her right foot down stepping out
of the Yukon, she was holding the handle in the doorway of the Yukon with
her left hand and she was not holding onto anything with her right hand.
        77. When Mrs. Matherne stepped down with her left foot, she was
looking down, and when she was stepping down with her right foot, she
was not looking down, but was looking more toward her right.
        78. The light was still on the inside of the Yukon when Mrs.
Matherne was stepping down.
        79. Nothing about the concrete itself caused Mrs. Matherne to fall.
        80. Mrs. Matherne is not claiming that it was wet on the concrete or
that any foreign object was present that caused her to fall.
        81. Mrs. Matherne is not claiming that any unevenness of the
concrete caused her to fall.
        82. Mrs. Matherne has no information from any source that leads her
to believe that prior to the time that she fell that anyone else had ever fallen
in that specific area of the driveway between the parking levels.
        83. When Mrs. Matherne opened the door to put her granddaughter
in the Yukon, she was paying attention to where the railing stopped relative
to where the door was because she did not want to bang the door on the
railing.
        84. Vicki Matherne was aware of her surroundings when [she] was
stepping in and out of the Yukon on December 29, 2011.
        85. Rodney Matherne saw his wife fall.
        86. When the family arrived at the cabin the night before Mrs.
Matherne‘s fall, Rodney Matherne noticed the upper level parking area.
        87. Mr. Matherne noticed that there was a change in elevation from
the upper pad to the lower pad.
        88. The change in elevation was pretty obvious as you could see the
upper level parking area from the front door of the cabin.
        89. Before the family arrived at the cabin, Rodney Matherne saw the
photograph on the website of the American Patriot Getaways showing the
two levels of parking area.
        90. Mr. Matherne recalled that he mentioned to his wife that if it
snowed or froze then he would not park the vehicles on the upper level
parking area because they might slide into the cabin.
        91. The next morning after the family arrived at the cabin, Mr.
Matherne moved the Yukon up to the upper parking area.



                                     -10-
        92. Mr. Matherne moved the Yukon up to the upper parking area to
make room in the driveway as well as for safety for the kids to discourage
them from getting up there.
        93. Mr. Matherne knew that Mrs. Matherne was concerned that she
did not want the kids to play on the upper pad because it is unsafe and even
though the upper area had a handrail it was a long drop.
        94. From the time that the family arrived, the drop from one level to
the next both where there was a handrail and where there was not a handrail
was open and obvious.
        95. When Mr. Matherne arrived back from the day trip that he had
gone on with the rest of the family to Cades Cove and parked the Yukon in
the upper level parking area, he pulled up to where there was enough room
to open the front door beside the railings. In particular, he pulled up all the
way to the left as far as he could to where he could open his door on the
left-hand side of the vehicle and get out because he wanted to intentionally
leave enough room on the other side of the vehicle next to the railing to
where the door could be opened.
        96. When the Yukon was parked in the upper level parking area,
there was room to open both right side front passenger and rear passenger
doors fully extended without touching the rail.
        97. When Mrs. Matherne went out to put her granddaughter in the
Yukon, there was approximately 3 — 3 ½ feet from the right side passenger
tires to the rail and drop off.
        98. When Mr. Matherne got back from the day trip to Cades Cove
around 2:00 p.m., after parking the Yukon in the upper parking area, he got
out of the Yukon and walked around the back of the Yukon and down the
side to get into the house.
        99. When Mr. Matherne walked around the back of the Yukon to get
back into the house, he stepped off the little drop off between the upper and
lower parking areas.
        100. When Mrs. Matherne and her granddaughter first went out of
the front door to the Yukon, Mr. Matherne was still in the house talking to
the boys and getting them ready.
        101. Mr. Matherne was standing on the porch when his wife fell.
        102. At no time during the week that the Matherne family was
staying at the cabin did Mr. Matherne have any issue with backing the
Yukon out of the upper parking area where he came close to running off the
edge.
        103. Mr. Matherne did not observe anybody in his party either
before or after his wife fell who almost fell off the edge between the upper
and lower parking levels.
                                     -11-
        104. Mr. Matherne did not personally call anyone at the rental office
to let them know what happened.
        105. Rodney Matherne has not had any conversations with Jerry
West or Carolyn West about his wife‘s fall.
        106. Rodney Matherne has not ever spoken with anyone at American
Patriot Getaways about Mrs. Matherne‘s fall.
        107. There was nothing that prevented Mr. or Mrs. Matherne or
anyone else in their party from seeing that the black rail did not go down to
the street.
        108. On December 28, 2011, there was sufficient room for Mrs.
Matherne and her granddaughter to walk up to the rear door of the Yukon
and get in without falling.
        109. On December 28, 2011, there was sufficient room for Mrs.
Matherne to be able to get in and out of the back seat of the Yukon without
falling.
        110. On December 28, 2011, there was sufficient room for someone
to get in and out of the front passenger‘s seat without falling.

                                     ***
                        CONCLUSIONS OF LAW
        1. On December 29, 2011, the defendants owed a duty to the
plaintiff related to the potential dangerous condition that existed at the
rental property known as ―Bear House Rock‖ located at [sic] located at 607
Quill Gordon Court in Pigeon Forge, Tennessee.
        2. On December 29, 2011, prior to her fall, plaintiff had absolute and
actual knowledge of the potentially dangerous condition related to the dual
parking levels at the rental property known as ―Bear House Rock‖ located
at [sic] located at 607 Quill Gordon Court in Pigeon Forge, Tennessee.
        3. On December 29, 2011, with absolute and actual knowledge of
the potentially dangerous condition related to the dual parking levels at the
rental property known as ―Bear House Rock‖ located at [sic] located at 607
Quill Gordon Court in Pigeon Forge, Tennessee, plaintiff continued to act
in a manner that placed herself in danger.
        4. On December 29, 2011, the potentially dangerous condition
related to the dual parking levels at the rental property known as ―Bear
House Rock‖ located at [sic] located at 607 Quill Gordon Court in Pigeon
Forge, Tennessee was open and obvious for the plaintiff and all persons to
see, comprehend, and appreciate and that plaintiff had at least equal
knowledge of its existence.

                                     -12-
        5. On December 29, 2011, the plaintiff knew that the potentially
dangerous condition existed. She had seen and appreciated the difference
in height between the upper and lower parking levels. She had seen and
appreciated the fact that the black fence/handrail/guard rail did not extend
all the way to the street. She had told the children in her group not to play
on the upper parking level because she knew that someone could fall and
get hurt. She had made her husband park the Yukon in the upper parking
level so that the other members of her party could not get up there to play
because she knew that someone could fall and get hurt due to the difference
in height between the parking levels and the lack of a guard rail going all
the way to the road. She knew that she could possibly fall and be injured if
she was not careful,
        6. Based upon all of the undisputed material facts and applying the
law of the State of Tennessee, on December 29, 2011, plaintiff was guilty
of negligence that was the proximate cause of her fall and any injuries
allegedly sustained therefrom.
        7. Based on all of the undisputed material facts, the plaintiff, as a
matter of law, the Court finds that the plaintiff had the absolute and actual
notice of the alleged danger at issue and with such knowledge, the plaintiff
continued to act in such a way that placed herself in danger which makes
her at least 50% at fault for her fall and any injuries sustained.
        8. Based on all of the undisputed material facts, the plaintiff, as a
matter of law, given her full knowledge and understanding of the
potentially dangerous condition, failed to exercise reasonable care for her
own safety and was guilty of negligence that was the proximate cause of
her fall and any injuries allegedly sustained therefrom.
        9. Based upon all of the undisputed material facts and applying the
law of the State of Tennessee, on December 29, 2011, plaintiff was at least
50% at fault for her fall and any injuries sustained therefrom.
        10. Under the comparative fault principles adopted by the State of
Tennessee, plaintiff, being at least 50% at fault as a matter of law, is barred
from recovery in this matter, and as such, plaintiffs‘ Complaint should be
dismissed with full prejudice to the re-filing of the same.
        11. Since this matter was filed on or after July 1, 2011, T.C.A. §20-
16-101 governs the standard for determining summary judgment.
        12. Defendants have submitted evidence that negates one or more
essential elements of the plaintiffs‘ claims and that the plaintiffs‘ evidence
is insufficient to establish an essential element of the plaintiffs‘ claims. In
particular, the plaintiffs have failed to submit any proof that the defendants
owed any duty to the plaintiff given the fact that the alleged dangerous
condition was open and obvious, that the plaintiff had at least equal
                                     -13-
       knowledge of its existence, and based upon the Court‘s finding that plaintiff
       was at least 50% at fault for her fall and any injuries allegedly sustained
       therefrom.

Plaintiffs timely filed an appeal to this Court.

                                         Discussion

             We restate and consolidate the issues Plaintiffs raise on appeal into the
following dispositive issue: whether the Trial Court erred in granting Defendants‘ motion
for summary judgment.

              As our Supreme Court has instructed:

              Summary judgment is appropriate when ―the pleadings, depositions,
       answers to interrogatories, and admissions on file, together with the
       affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.‖
       Tenn. R. Civ. P. 56.04. We review a trial court‘s ruling on a motion for
       summary judgment de novo, without a presumption of correctness. Bain v.
       Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
       Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
       so, we make a fresh determination of whether the requirements of Rule 56
       of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
       Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
       Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

                                                   ***

       [I]n Tennessee, as in the federal system, when the moving party does not
       bear the burden of proof at trial, the moving party may satisfy its burden of
       production either (1) by affirmatively negating an essential element of the
       nonmoving party‘s claim or (2) by demonstrating that the nonmoving
       party‘s evidence at the summary judgment stage is insufficient to establish
       the nonmoving party‘s claim or defense. We reiterate that a moving party
       seeking summary judgment by attacking the nonmoving party‘s evidence
       must do more than make a conclusory assertion that summary judgment is
       appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
       moving party to support its motion with ―a separate concise statement of
       material facts as to which the moving party contends there is no genuine
       issue for trial.‖ Tenn. R. Civ. P. 56.03. ―Each fact is to be set forth in a
                                             -14-
      separate, numbered paragraph and supported by a specific citation to the
      record.‖ Id. When such a motion is made, any party opposing summary
      judgment must file a response to each fact set forth by the movant in the
      manner provided in Tennessee Rule 56.03. ―[W]hen a motion for summary
      judgment is made [and] . . . supported as provided in [Tennessee Rule 56],‖
      to survive summary judgment, the nonmoving party ―may not rest upon the
      mere allegations or denials of [its] pleading,‖ but must respond, and by
      affidavits or one of the other means provided in Tennessee Rule 56, ―set
      forth specific facts‖ at the summary judgment stage ―showing that there is a
      genuine issue for trial.‖ Tenn. R. Civ. P. 56.06. The nonmoving party
      ―must do more than simply show that there is some metaphysical doubt as
      to the material facts.‖ Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
      Ct. 1348. The nonmoving party must demonstrate the existence of specific
      facts in the record which could lead a rational trier of fact to find in favor of
      the nonmoving party. If a summary judgment motion is filed before
      adequate time for discovery has been provided, the nonmoving party may
      seek a continuance to engage in additional discovery as provided in
      Tennessee Rule 56.07. However, after adequate time for discovery has
      been provided, summary judgment should be granted if the nonmoving
      party‘s evidence at the summary judgment stage is insufficient to establish
      the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
      56.04, 56.06. The focus is on the evidence the nonmoving party comes
      forward with at the summary judgment stage, not on hypothetical evidence
      that theoretically could be adduced, despite the passage of discovery
      deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

             With regard to negligence, our Supreme Court has explained:

              As we have frequently observed, a negligence claim requires a
      plaintiff to prove the following elements: (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 the duty; (3) an injury or loss; (4)
      causation in fact; and (5) proximate causation. See, e.g., Bradshaw v.
      Daniel, 854 S.W.2d 865, 869 (Tenn. 1993). 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

                                            -15-
Torts, § 37 at 236 (5th ed.1984)). Appellate review of a question of law is
de novo. Bradshaw, 854 S.W.2d at 870.

       In analyzing duty, the court must balance the foreseeability and
gravity of the potential risk of harm to a plaintiff against the burden
imposed on the defendant in protecting against that harm. McClung v.
Delta Square Ltd. Partnership, 937 S.W.2d 891, 902 (Tenn. 1996). 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 v. Wilder, 913 S.W.2d 150, 153
(Tenn. 1995).

       In a premises liability case, an owner or occupier of premises has a
duty to exercise reasonable care with regard to social guests or business
invitees on the premises. The duty includes the responsibility to remove or
warn against latent or hidden dangerous conditions on the premises of
which one was aware or should have been aware through the exercise of
reasonable diligence. See Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn.
1996); Eaton v. McLain, 891 S.W.2d 587, 593–94 (Tenn. 1994). Although
the traditional rationale for imposing this duty was the owner‘s superior
knowledge of conditions on the premises, see e.g., Kendall Oil v. Payne, 41
Tenn. App. 201, 293 S.W.2d 40, 42 (Tenn. App. 1955), we recently held
that a duty may exist even where the injury-causing condition is alleged to
be ―open and obvious‖ to the plaintiff. We explained:

      That a danger to the plaintiff was ‗open or obvious‘ does not,
      ipso facto, relieve a defendant of a duty of care. Instead, the
      duty issue must be analyzed with regard to foreseeability and
      gravity of harm, and the feasibility and availability of
      alternative conduct that would have prevented the harm. The
      factors provided in the Restatement (Second) of Torts, §
      343(A) relate directly to the foreseeability question; in short,
      if the foreseeability and gravity of harm posed from a
      defendant‘s conduct, even if ‗open and obvious,‘ outweighed
      the burden on the defendant to engage in alternative conduct
      to avoid the harm, there is a duty to act with reasonable care.

Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998).



                                    -16-
              The duty imposed on the premises owner or occupier, however, does
      not include the responsibility to remove or warn against ―conditions from
      which no unreasonable risk was to be anticipated, or from those which the
      occupier neither knew about nor could have discovered with reasonable
      care.‖ Prosser and Keeton on Torts, supra, § 61 at 426. In this regard, ―the
      mere existence of a defect or danger is generally insufficient to establish
      liability, unless it is shown to be of such a character or of such duration that
      the jury may reasonably conclude that due care would have discovered it.‖
      Id. at 426–27. As we explained in Doe v. Linder Const. Co., 845 S.W.2d
      173, 178 (Tenn. 1992):

             Foreseeability is the test of negligence. If the injury which
             occurred could not have been reasonably foreseen, the duty of
             care does not arise, and even though the act of the defendant
             in fact caused the injury, there is no negligence and no
             liability. ‗[T]he plaintiff must show that the injury was a
             reasonably foreseeable probability, not just a remote
             possibility, and that some action within the [defendant’s]
             power more probably than not would have prevented the
             injury.‘

      (emphasis added) (citations omitted).

Rice v. Sabir, 979 S.W.2d 305, 308-09 (Tenn. 1998) (footnote omitted).

             As explained in Staples v. CBL & Assocs., Inc.:

             In negligence cases, only after the element of duty is
             established does the comparative fault of the plaintiff come
             into play. See Coln v. City of Savannah, 966 S.W.2d [34] at
             42 [ (Tenn. 1998) ]. If the defendant has plead the affirmative
             defense of the plaintiff‘s relative fault, the reasonableness of
             the plaintiff‘s conduct in confronting a risk should be
             determined under the principles of comparative fault. See
             Perez v. McConkey, 872 S.W.2d 897, 905 (Tenn. 1994). If the
             evidence is evaluated in the light most favorable to the
             plaintiff and reasonable minds could not differ that her fault
             was equal to or great [sic] than that of the defendants,
             summary judgment in the defendant‘s favor may be granted.
             See Coln v. City of Savannah, 966 S.W.2d at 44.

                                           -17-
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000).

              Defendants cite Goumas v. Mayse, No. 2013-01555-COA-R3-CV, 2014
WL 1713195 (Tenn. Ct. App. April 29, 2014), no appl. perm. appeal filed, for the
proposition that an individual has a responsibility to tend to his or her own safety. In
Goumas, we stated:

              There are no disputed material facts presented in this record;
      plaintiff does not argue in his brief that there are any, nor does he point to
      any material fact in dispute. Accepting plaintiff‘s version of the facts as
      true, and drawing all reasonable inferences in his favor, we find that there is
      no proof establishing that the area where plaintiff ―misstepped‖ and fell
      presented any unreasonable risk of harm. There is simply no evidence of a
      dangerous or defective condition. The rock that plaintiff tripped on was
      easily visible, in an area with no obstructions; it was truly ―open and
      obvious.‖ Plaintiff was well familiar with the area, having worked there
      and traveled the same path on three earlier occasions. Plaintiff admitted
      having seen the rock and stepped on it multiple times before his misstep, so
      he knew the rock was there. ― ‗Liability in premises liability cases stems
      from superior knowledge of the condition of the premises.‘ ― Blair v. W.
      Town Mall, 130 S.W.3d at 764 (quoting McCormick v. Waters, 594 S.W.2d
      385, 387 (Tenn. 1980)); Christian v. Ayers L.P., No. E2013-00401-COA-
      R3-CV, 2014 WL 1267247 at *5 (Tenn. Ct. App. E.S., filed Mar. 28, 2014)
      (quoting Green v. Roberts, 398 S.W.3d 172, 177 (Tenn. Ct. App. 2012));
      Martin v. Melton, No. M2012-01500-COA-R3-CV, 2013 WL 6206865 at
      *5 (Tenn. Ct. App. M.S., filed Nov. 26, 2013); Nee, 106 S.W.3d at 653.
      Under these circumstances, plaintiff had at least equal, and probably
      superior, knowledge of the condition of the premises at issue. Even
      assuming that defendants had constructive notice of the location of the
      rock, there is no evidence that they undertook any action to put it there or to
      create any condition that could be said to be unreasonably dangerous.

             Several other legal principles inform our analysis and decision. We
      have recently noted that ―an individual has a duty to take reasonable care
      for his or her own safety.‖ Martin, 2013 WL 6206865 at *4; see also
      Green, 398 S.W.3d at 179; Smid v. St. Thomas Hosp., 883 S.W.2d 632, 634
      (Tenn. Ct. App. 1994) (―We doubt that there is any product of nature or of
      human invention, no matter how benevolent, that a human being cannot
      turn into a source of injury to himself, if only he is careless enough. We
      believe that the defendant had no duty to protect the plaintiff from the
      consequences of his action, when he could have easily protected himself by
                                           -18-
      simply looking where he was about to step.‖). We have also observed that ―
      ‗negligence is not to be presumed by the mere happening of an injury or
      accident,‘ ― Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn. Ct. App.
      2004) (quoting Brackman v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App.
      1971)), and that ―[a] landowner is not an insurer of his premises as relates
      to invitees.‖ Id. at 224 (citing McCormick v. Waters, 594 S.W.2d 385, 387
      (Tenn. 1980)). Finally, Tennessee appellate courts have affirmed summary
      judgment or a directed verdict on numerous occasions on the ground that
      there was no duty under facts similar or analogous to those presented here.
      See, e.g., Green, 398 S.W.3d at 179-80, 182, and cases cited therein;
      Friedenstab, 174 S.W.3d at 228; Wilson v. Gables-Tenn. Properties, LLC,
      168 S.W.3d 154, 155 (Tenn. Ct. App. 2004); Plunk v. Nat’l Health
      Investors, Inc., 92 S.W.3d 409, 415 (Tenn. Ct. App. 2002) (reversing jury
      verdict and directing dismissal of premises liability claim); Nee, 106
      S.W.3d at 654; Rice, 979 S.W.2d at 307.

Goumas, 2014 WL 1713195, at **8-9.

              In other premises liability cases, however, this Court has determined that
summary judgment was inappropriate. In Reynolds v. Rich, No. E2015-01245-COA-R3-
CV, 2016 WL 4007883 (Tenn. Ct. App. July 22, 2016 ), Rule 11 appl. perm. appeal filed
Sept. 20, 2016, we stated:

             Defendants argue in their brief on appeal that they did not owe a
      duty to Plaintiff ―inasmuch as every volunteer present at the construction
      site possessed a duty to exercise reasonable care to avoid injury to another.‖
      While we agree that the volunteers had a duty to exercise reasonable care to
      avoid injury to themselves and each other, this in no way means that
      defendants did not owe a duty to Plaintiff.

             In the case now before us, it is clear that the reasonably foreseeable
      probability and gravity of harm from a possible fall while installing a roof
      outweighs the burden upon defendants to engage in alternative conduct
      which would prevent such a risk of harm. Thus, defendants‘ use of
      volunteers to install the roof gave rise to a duty for defendants to act with
      reasonable care. We, therefore, hold that defendants did owe a duty to
      Plaintiff.

             Turning to the issue of whether the duty that defendants owed to
      Plaintiff was breached, and viewing the evidence in the light most favorable
      to Plaintiff, as we must at this summary judgment stage of the proceedings,
                                           -19-
      we note that there are genuine disputed issues of material fact regarding
      whether defendants breached the duty they owed to Plaintiff. There are
      genuine disputed issues regarding whether defendants could have, or should
      have, taken action other than, or in addition to, what was done, such as
      providing a safety or restraining device which would have prevented the
      risk of a fall from the roof.

                                           ***

             Viewing the evidence in the light most favorable to plaintiffs, again
      as we must at this summary judgment stage, we cannot say that a rational
      trier of fact could not find that the percentage of fault attributable to
      Plaintiff was less than 50%. As such, there are genuine disputed issues of
      material fact with regard to comparative fault in this case, making summary
      judgment inappropriate.

             As there are genuine disputed issues of material fact with regard to
      whether defendants breached the duty they owed to Plaintiff and genuine
      disputed issues of material fact as to comparative fault, summary judgment
      was granted improperly. We, therefore, reverse the grant of summary
      judgment and remand this case to the Trial Court for further proceedings
      consistent with this Opinion.

Reynolds, 2016 WL 4007883, at **7-8.

             Initially, we observe that it is clear from the record on appeal that Mrs.
Matherne knew beforehand about the risk of possibly falling from the elevated parking
level. Mrs. Matherne had seen the dropoff. Mrs. Matherne even had forbidden the
children from playing on the upper parking level. We are satisfied that Mrs. Matherne‘s
actual knowledge of the danger is not in dispute here. Mrs. Matherne knew the risk.
According to Defendants, this should be sufficient to grant their motion for summary
judgment.

              However, Mrs. Matherne‘s knowledge of the risk does not end our inquiry.
In the case law cited above, even an ―open and obvious‖ hazard does not necessarily
relieve a defendant of a duty of care. We must determine whether the reasonably
foreseeable probability and gravity of harm from a possible fall while using the upper
parking level as intended outweighed the burden upon Defendants to engage in
alternative conduct which would have prevented a risk of harm to Plaintiffs. In our
judgment, Reynolds is more persuasive and applicable to the facts of this case than
Goumas. In Reynolds, it could well be said that the danger of falling off a roof should be
                                           -20-
obvious to anyone. That did not serve to relieve defendants in that case of a duty of care.
Similarly, in the present case, the danger of falling off this elevated parking level was
obvious to Mrs. Matherne. We conclude, nevertheless, that Defendants owed a duty of
care. In a way, Defendants‘ protestations that Mrs. Matherne knew of the obvious risk
argues too much. This is tantamount to conceding that there was an obvious danger to
guests on this property because the railing did not extend to the end of the elevated
parking area. Tennessee case law does not automatically insulate a premises owner from
a duty of care or liability simply because the danger was open and obvious.

                Having determined that Defendants owed a duty of care, we must consider
whether, at this summary judgment stage, there is a genuine issue as to whether
Defendants breached their duty of care to Plaintiffs. Defendants argue that Plaintiffs
failed to adequately submit evidence that any additional precautions, such as extending
the safety railing, were feasible. Plaintiffs did not submit any kind of detailed evidence
regarding the feasibility of precautions such as extended railing. In her deposition, Mrs.
Matherne was asked by Defendants‘ counsel what Defendants could have done to avert a
risk of falling, and she provided various answers including extending the railing. It is
true that it would have been better had Plaintiffs presented additional evidence in
opposition to Defendants‘ motion for summary judgment demonstrating that Defendants
feasibly could have taken additional precautions such as extending the railing. However,
we do not believe that, under this record, Plaintiffs‘ failure to do so fatally undermines
their case at this summary judgment stage. The risk of an individual incurring serious
injury or even death by falling from the upper parking level to the lower parking level
and landing on concrete outweighs the burden on the Defendants to prevent the risk of
harm by alternative conduct of the Defendants such as extending the railing along the full
length of the sides of the upper parking level. For example, photographs in the record of
the parking areas clearly show that the railing went around a significant portion of the
upper parking level including portions of both sides. The photos show that the railing
stopped several feet short of the end of the elevated parking level even though the drop
off still was, according to Mrs. Matherne in her deposition, ―[a]t least two feet‖ where she
fell. Taking the evidence in the light most favorable to Plaintiffs, as we must at this
summary judgment stage, it would have been feasible for the Defendants to extend the
railing a few more feet for the entire length of the upper parking level. At this summary
judgment stage, it is at least a disputed fact whether Mrs. Matherne could have fallen to
the lower parking level if the railing had been extended all along the sides of the upper
parking level. The foreseeable probability and gravity of harm to an individual falling
from the upper parking level to the lower parking level onto concrete outweighs the
burden upon the Defendants to extend for a few more feet the railing already placed
along most of both sides of the upper parking level.



                                            -21-
               Viewing the evidence in the light most favorable to Plaintiffs, as we must at
this summary judgment stage of the proceedings, we note that there are genuine disputed
issues of material fact regarding whether defendants breached the duty they owed to
Plaintiffs. There are genuine disputed issues regarding whether Defendants could have, or
should have, taken action other than, or in addition to, what was done, such as extending
the safety railing to include all of both sides of the upper parking level.

               There seems little doubt that Defendants, had they chosen to do so, could
have engaged in alternative conduct by extending the railing a few more feet for the full
length of the upper parking level and that this would have prevented the harm to Mrs.
Matherne. Could a rational trier of fact find that Mrs. Matherne was 50% or more at
fault? Clearly the answer is yes. However, viewing the evidence in the light most
favorable to Plaintiffs, again as we must at this summary judgment stage, we cannot say
that a rational trier of fact could not find that the percentage of fault attributable to Mrs.
Matherne was less than 50%. As such, there are genuine disputed issues of material fact
with regard to comparative fault in this case, making summary judgment inappropriate.

              As there are genuine disputed issues of material fact with regard to whether
Defendants breached the duty they owed to Plaintiffs and as to comparative fault,
summary judgment was granted improperly. We, therefore, reverse the grant of summary
judgment and remand this case to the Trial Court for further proceedings consistent with
this Opinion.

                                        Conclusion

             The judgment of the Trial Court is reversed, and this cause is remanded to
the Trial Court for further proceedings consistent with this opinion. The costs on appeal
are assessed against the Appellees, Jerry West, Carolyn West, and American Patriot
Getaways.

                                           ____________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE




                                            -22-
