KATHERINE KENNING,                   )
                                     )
      Plaintiff/Appellant,           )       Appeal No.
                                     )       M1998-00482-COA-R3-CV
v.                                   )

                                 FILED
                                 December 17, 1999

                                 Cecil Crowson, Jr.
                                Appellate Court Clerk
                                     )       Davidson Circuit
HCA HEALTH SERVICES OF               )       No. 97-C-1815
TENNESSEE, INC. d/b/a                )
DONELSON HOSPITAL,                   )
                                     )
      Defendant/Appellee.            )


                     COURT OF APPEALS OF TENNESSEE


     APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
                  AT NASHVILLE, TENNESSEE


                THE HONORABLE BARBARA HAYNES, JUDGE




ROBERT J. TURNER
Turner Law Offices
208 Third Avenue, North, Suite 100
Nashville, Tennessee 37201
      ATTORNEY FOR PLAINTIFF/APPELLANT




DIXIE W. COOPER
JOE W. ELLIS, II
Gideon & Wiseman
NationsBank Plaza, Suite 1900


                                                                     Page 1
414 Union Street
Nashville, Tennessee 37219-1782
     ATTORNEYS FOR DEFENDANT/APPELLEE




                             REVERSED AND REMANDED




                                                         WILLIAM B. CAIN, JUDGE
                                  OPINION

       This is a premises liability case involving a "slip and fall" accident which
resulted in the plaintiff being injured after a fall on the defendant hospital's outside
premises. The trial court granted summary judgment to the defendant finding that
there was no genuine issue of material fact. On appeal, the plaintiff contends that the
trial court improperly granted summary judgment by misapplying the "open and
obvious" rule under comparative negligence standards.          We conclude that the
defendant premises owner did owe a duty of care to the plaintiff under the facts of
this case. Accordingly, the trial court’s grant of summary judgment is reversed.


                                       I. Facts
       On February 23, 1994, Katherine Kenning ("Plaintiff") took a friend to a
doctor's appointment at the Donelson Hospital ("Defendant"). Plaintiff dropped her
friend off at the door and parked the car and, while walking up to the building, she
fell and injured herself. Plaintiff sued Defendant asserting in her complaint that
Defendant negligently constructed its “walkway in such a way that a portion of such
walkway was raised in such a fashion that it caught [P]laintiff’s heel, which caused
her, in turn to trip and fall.”


       To her second affidavit, Plaintiff attached photographs of the general area in
which she fell. The photos depict the parking lot adjacent to the doctor’s building



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which has a covered drive-through into which cars enter from the parking lot and
from which they exit back into the parking lot in order for drivers to drop patients
off at the door. It appears that after persons who are parking walk up to the building
through the parking lot, they have two options. They can either continue to the door
by walking into the covered drive-through or they can step up onto the sidewalk, just
outside the covered drive-through, and follow it, alongside the drive-through, to the
same entrance. Plaintiff chose to walk on the drive-through and her fall occurred at
the point where the asphalt of the parking lot joins the brick surface of the covered
drive-through.



       Plaintiff claims that her heel hung on a concrete strip that separates this area
where the asphalt parking lot connects with the brick surface as there is a 1¼ inch
height deviation in the two adjoining surfaces. This raised ridge was not marked or
painted; however, other uneven areas only a few feet away were painted yellow to
warn of the discrepancy in the heights of juxtaposed surfaces. Plaintiff testified that
she did not see the raised area that tripped her in that her attention was diverted to
the yellow paint on the raised area a few feet away. Regarding the area where she
fell, Plaintiff stated that “unless you were aware of this difference in height or were
looking down at your feet to inspect the area, it would not be noticed by a person
who was walking normally across that area.” While the photographs are not close
enough to reveal the deviation in these two surfaces, they do portray that this area is
not painted and that the area directly in front of this where the drive-through adjoins
the sidewalk is painted yellow to indicate a deviation. Plaintiff said that she was
walking in this area because the sidewalk adjacent to the building was not accessible
to her because it was obstructed by a tree. The photographs do portray a large tree
on the end of the sidewalk.


      Gary Michael Green, Director of Plant Operations for Defendant, was
responsible for inspecting, supervising, and overseeing maintenance of the premises
in and around Defendant Hospital including the location of the drive-through



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entrance and exit to the building where Plaintiff fell. Mr. Green testified in his
affidavit that there were no reported problems or defects with the drive-through area
on or before February 23, 1994, nor did he or anyone in his department ever have or
receive any knowledge of any claimed defect relating to this area where Plaintiff fell.
Mr. Green testified also that he did not know of anyone else ever falling in this area
before.


      Plaintiff filed this suit on June 6, 1997 1 alleging a negligence cause of action.
Defendant moved for summary judgment and supported its motion by a statement of
undisputed material facts, Plaintiff’s deposition, Mr. Green's affidavit and
photographs of the premises. The court granted Defendant summary judgment
finding that there was no genuine issue of material fact.


                              II. Standard of Review
      We turn first to the standard by which an appellate court must review the
decision of a trial court to grant summary judgment.            Summary judgment is
appropriate when there is no genuine issue of any fact necessary to resolve the
substantive claim or defense embodied in the summary judgment motion and the
moving party is entitled to a judgment as a matter of law. Byrd v. Hall, 847 S.W.2d
208, 210 (Tenn. 1993); see Tenn R. Civ. P. 56. The party who moves for summary
judgment bears the burden of demonstrating that no genuine issue of material fact
exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1987).


      The legal principles which guide an appellate court's review of a trial court's
grant of a motion for summary judgment are well settled.      Because the trial court's
decision involves only a question of law, there is no presumption of correctness
attached to this decision. Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996).
The appellate court must review the record anew to determine whether the
requirements of Tennessee Civil Procedure Rule 56 have been met.             Carvell v.
Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). In so doing, a court views the evidence
in the light most favorable to the nonmoving party, allows all reasonable inferences in



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favor of that party, and discards all countervailing evidence. Id. (citing Byrd, 847
S.W.2d at 210-11).      Summary judgment should be granted if the facts and
conclusions permit a reasonable person to reach only one conclusion. McCall v.
Wilder, 913 S.W.2d 150, 152 (Tenn. 1995). We turn to an application of the
relevant law to the facts of the instant case to determine if only one conclusion can
be reached.


                                   III. Legal Duty
      The elements of a negligence claim are well established: a plaintiff must prove
(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. Rice v. Sabir,
979 S.W.2d 305, 308 (Tenn. 1998); Bradshaw v. Daniel, 854 S.W.2d 865, 869
(Tenn.1993). In the instant case, Plaintiff’s failure to demonstrate that she will be
able to prove each of these elements at trial will entitle Defendant to summary
judgment. See Byrd, 847 S.W.2d at 215-16.


      The initial requirement for a negligence claim, the existence of a legal duty, is a
question of law for the court. Blair v. Campbell, 924 S.W.2d 75, 78 (Tenn. 1996).
This court must determine whether or not Defendant owed a duty to Plaintiff under
the circumstances of this case. Duty is the legal obligation that a defendant owes to
a plaintiff to conform to the reasonable person standard of care in order to protect
that plaintiff against unreasonable risks of harm. McCall v. Wilder, 913 S.W.2d
150, 153 (Tenn. 1995). The supreme court has explained that "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." Id. Among the
factors for consideration are the following:
      the foreseeable probability of the harm or injury occurring; the possible
      magnitude of the potential harm or injury; the importance or social
      value of the activity engaged in by defendant; the usefulness of the
      conduct to defendant; the feasibility of alternative, safer conduct and



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      the relative costs and burdens associated with that conduct; the relative
      usefulness of the safer conduct; and the relative safety of alternative
      conduct.

Id. (citing Restatement (Second) of Torts, §§ 292, 293 (1964)).


      The open and obvious nature of the harm posed by a defendant’s conduct
does not preclude recovery under our system of comparative fault. “As in any
negligence action, a risk is unreasonable and gives rise to a duty if the foreseeability
and gravity of harm posed by a defendant's conduct, even if open and obvious,
outweigh the burden upon the defendant to engage in conduct that would have
prevented the harm.” Coln v. City of Savannah, 966 S.W.2d 34, 46 (Tenn. 1998).
In Coln, our supreme court agreed with the majority of jurisdictions which had
limited or restricted the traditional “open and obvious” rule in favor or the approach
taken by the Restatement (Second) of Torts:
      Nearly every jurisdiction has also relied upon the Restatement (Second)
      of Torts, § 343A, which states the rule as follows:
           (1) A possessor of land is not liable to his invitees for physical
           harm caused to them by any activity or condition on the land
           whose danger is known or obvious to them, unless the
           possessor should anticipate the harm despite such knowledge
           or obviousness.
      (Emphasis added). The word " 'known' denotes not only knowledge of
      the existence of the condition or activity itself, but also appreciation of
      the danger it involves," and the word " 'obvious' means that both the
      condition and the risk are apparent to and would be recognized by a
      reasonable man, in the position of the visitor, exercising ordinary
      perception, intelligence, and judgment."        Restatement (Second) of
      Torts, § 343A (comment b). The restatement further provides that the
      premises owner's duty exists if the harm can or should be anticipated
      notwithstanding the known or obvious danger:
           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. Such reason may also arise where the possessor
           has reason to expect that the invitee will proceed to encounter
           the known or obvious danger because to a reasonable man in
           his position the advantages of doing so would outweigh the
           apparent risk.


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      Restatement (Second) of Torts, § 343A (comment f).

Coln, 966 S.W.2d at 41.


      Thus, the determination of whether a duty is owed requires a balancing of the
foreseeability and gravity of the potential harm against the burden imposed in
preventing that harm. Id. at 39 (citing McClung v. Delta Square Ltd. Partnership,
937 S.W.2d 891, 901 (Tenn. 1996)). As a general matter, a premises owner such as
the defendant hospital has a duty to exercise reasonable care to its business invitees
to make the premises safe. Eaton v. McLain, 891 S.W.2d 587, 593 (Tenn. 1994). “
[T]he question of whether the [defendant’s] 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 [the plaintiff] was exposed. In other words, the
issue is whether [the plaintiff] 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.’ ” Id. at 594 (citing Doe v.
Linder Constr. Co., 845 S.W.2d 173 (Tenn.1992)). In the instant case, whether
Defendant hospital’s duty encompasses the duty to warn against the ridge in its drive
or to modify the construction of its drive involves an analysis of the foreseeability of
the risk to which Plaintiff was exposed. See Mangum v. Golden Gallon Corp., No.
01A01-9709-CV-00459, 1999 WL 114221 at *3 (Tenn. App. 1999).


      After a review of the evidence, we can not say that, as a matter of law, the
unmarked ridge in Defendant’s driveway did not create a foreseeable probability of
harm. In other words, we find that Defendant owed a duty of care because the 1¼
inch deviation in the level of the surfaces on Defendant’s drive-through created a
foreseeable probability of harm. Plaintiff testified that this deviation was discernable
only from a side angle such that someone approaching the door from the parking lot
would not notice it. Even if it were “open and obvious” to a degree, it is significant
that the area where Plaintiff fell was not painted yellow while uneven surfaces only a
few feet away were painted yellow. As Plaintiff asserted was the case in her fall, the
deviation marked by yellow paint in such close proximity could easily distract one’s


                                                                                           Page 7
attention from the unmarked deviation. See Restatement (Second) of Torts, § 343A
(comment f).


      Defendant maintains that it fulfilled its duty by providing a safe route to the
entrance of the building via the sidewalk.      Defendant claims that it was not
foreseeable that pedestrians would choose to walk in the drive-through as opposed
to the sidewalk. We disagree. From Plaintiff’s photographic evidence, depending
on where in the parking lot one had parked, walking on the drive-through may well
provide the most direct path to the door. Furthermore, since there was no sidewalk
from the parking lot up to the building, it would require a proactive decision to step
onto the sidewalk once one had walked through the parking lot and reached the
building. It is certainly foreseeable that patrons would choose to approach the
building’s entrance by continuing to walk on the drive-through. Finally, as Plaintiff
noted, the photos depict a tree with low-hanging branches growing on a portion of
the sidewalk. While the pictures do not indicate that this tree would prohibit access
to the sidewalk, they do show that, in order to circumvent the tree, one may have to
walk partially into the drive-though toward the entrance before stepping onto the
sidewalk. This further supports our conclusion that it was foreseeable that, once a
pedestrian walked around the tree, he or she might avoid using the sidewalk
altogether and continue to the entrance by walking on the drive-through.

      While there is no evidence that Defendant had actual knowledge of the
deviation in the drive-through, it is reasonable to infer that a 1¼ deviation was
recognizable such that it should have known. Defendant had an employee who was
responsible for inspecting, supervising, and overseeing maintenance of the area
where Plaintiff fell. Finally, the burdens of protecting against this harm would have
been minimal. Defendant could have easily painted the raised ridge yellow as it had
other deviations. It could have posted a sign to alert pedestrians to the potential
danger. We therefore find that the foreseeable probability and gravity of harm posed
by Defendant's conduct outweighed the burden upon Defendant to engage in
alternative conduct that would have prevented the harm.



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                                 IV. Conclusion
      For the foregoing reasons, we reverse the decision of the trial court to grant
summary judgment to Defendant Donelson Hospital. Plaintiff, Ms. Kenning, has
established that Defendant owed her a duty of care as a matter of law. We therefore
remand this case to the trial court for further proceedings consistent with this
opinion. The costs of this appeal should be taxed to Defendant.


                               ____________________________________
                               WILLIAM B. CAIN, JUDGE

CONCUR:


_________________________________
BEN H. CANTRELL, P.J., M.S.

_________________________________
PATRICIA J. COTTRELL, JUDGE




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