BOBBIE READ,                          )    Williamson Circuit
                                      )    No. I-95391
      Plaintiff/Appellant,            )
                                      )
VS.                                   )
                                      )
HOME DEPOT USA, INC.,                 )    Appeal No.
                                      )    01A01-9803-CV-00121
      Defendant/Appellee.             )


                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

      APPEAL FROM THE CIRCUIT COURT OF WILLIAMSON COUNTY
                    AT FRANKLIN, TENNESSEE

                  HONORABLE CORNELIA A. CLARK, JUDGE


R. E. Lee Davies
123 Fifth Avenue, North
Franklin, Tennessee 37064
ATTORNEY FOR PLAINTIFF/APPELLANT


Robert Orr, Jr.
210 Third Avenue, North
P.O. Box 190683
Nashville, Tennessee 37219-0683
ATTORNEY FOR DEFENDANT/APPELLEE



                             REVERSED AND REMANDED.



                                      HENRY F. TODD, JUDGE




CONCURS:
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
WILLIAM C. KOCH, JR., JUDGE
BOBBIE READ,                                 )       Williamson Circuit
                                             )       No. I-95391
       Plaintiff/Appellant,                  )
                                             )
VS.                                          )
                                             )
HOME DEPOT USA, INC.,                        )       Appeal No.
                                             )       01A01-9803-CV-00121
       Defendant/Appellee.                   )


                                   OPINION

       This is a premises liability case in which the captioned plaintiff tripped over an

obstruction in the aisle of a retail store. The Trial Court rendered summary judgment for the

store because the obstruction was open and obvious. Plaintiff has appealed and presented the

following issues:



                     1.      Whether the trial court misapplied the “open
              and obvious” rule under the comparative negligence standards
              in Tennessee.

                      2.      Whether Home Depot, when using overhead
              displays of merchandise designed to attract shoppers’
              attention to the merchandise rather than the floor, has a duty
              to keep its floor free of objects or warn its customers of such
              objects if they were not removed.


       Defendant has presented the following issues:



                      I.    Whether the undisputed facts make any
              showing from which it can be said that Home Depot
              reasonably knew or should have known of the probability of
              an occurrence such as the one which caused Mrs. Read’s
              injuries.

                      II.     Whether the undisputed facts establish as a
              matter of law that the fault of Mrs. Read equaled or exceeded
              that of Home Depot.


       The facts are undisputed.




                                             -2-
        Defendant displays for sale a wide variety of products used in construction, renovation

and decoration of homes. The building is a large warehouse with high ceilings and shelves for

storage of cartons of merchandise. The cartons are temporarily stacked in the aisles used by

customers, but employees are instructed to move the cartons from the aisle to the shelves

promptly to clear the aisle. A sample of each item is removed from its carton and displayed for

customer view.



        On the occasion of plaintiff’s injury. There was a stack of cartons which had been

placed in the aisle during the morning and the store employees failed to move the cartons from

the aisle to the shelves promptly and had gone to lunch without doing so. The stack was high

enough to be readily visible, but one carton, which was on the floor of the aisle, was longer than

the rest and protruded into the aisle a few inches further than the other cartons.



        The merchandise in this area included over 200 ceiling light fixtures (chandeliers) which

were hung 18 feet above the floor in what was described as a light cloud which extended the

entire length of the aisle.



        Plaintiff, a sixty year old visitor from Mississippi, accompanied by her sister and

daughter, visited defendant’s store looking for a light fixture for her church. As the group

walked in the aisle, plaintiff’s daughter and sister led the way and partially obstructed plaintiff’s

view of the floor ahead. All three ladies were looking at the lighted chandeliers overhead.

Plaintiff did not see the carton protruding into the aisle further than the stack. She tripped over

it, fell and was injured.



        The standards for entry of summary judgment are established by TRCP Rule 56.04. The

moving party must present undisputed evidence of facts which entitle that party to judgment as

a matter of law. Byrd v. Hall, Tenn. 1993, 847 S.W.2d 208. Whether a summary judgment

should be rendered is a question of law. Roberts v. Roberts, Tenn. App. 1992, 845 S.W.2d 225.



                                                -3-
       Prior to recent decisions of the Supreme Court, the courts of Tennessee applied what was

known as the “open and obvious rule” to defeat a premises liability suit where the danger on the

premises was as open and obvious to the plaintiff as to the defendant. McCormick v. Waters,

Tenn. 1980, 594 S.W.2d 385. Kendell Oil Co. v. Payne, Tenn. App. 201, 293 S.W.2d 40 (1955).



       In McIntyre v. Ballentine, Tenn. 1992, 833 S.W.2d 52, the Supreme Court adopted the

principle of comparative fault, whereby a plaintiff guilty of no more than 50% fault might

receive a partial recovery, but if plaintiff’s fault exceeds 50% there can be no recovery.



       In Coln v. City of Savannah, Tenn. 1998, 966 S.W.2d 34, the Supreme Court modified

the open and obvious rule to provide that, the controller of the premises may be held liable where

he or she knows or should have prior knowledge of a dangerous condition on the premises which

might reasonably cause harm to reasonably prudent visitor whose attention may be distracted so

that he will not discover what is obvious and fail to protect himself against the danger.



       The factual considerations pointed out in McIntyre and Coln are such that, before the law

is applied, there must first be findings of fact. The necessary facts are not so conclusively

established in the present record as to justify a summary judgment.



       The presence of the “cloud of light” for the express purpose of attracting the attention of

customers placed a special duty of care upon the defendant to provide safety for the customers

whose attention was diverted from their pathway to the ceiling.



       Moreover, the employees having the assigned duty to promptly clear the aisle of cartons

by placing them on shelves, knowing that the cartons were in the aisle, failed to perform their

duty by leaving the cartons in the aisle while they went to lunch.



       The diversion of her attention to the ceiling, the obstruction of her view of the floor by

her companions she was following, and the fact that a carton over which she tripped was

                                               -4-
protruding further into the aisle than the stack of cartons, all mitigate or remove any fault of the

plaintiff which might be found under other circumstances.



       All of the foregoing circumstances preclude a summary judgment and require an

evaluation by the finder of fact.



       The judgment of the Trial Court is reversed, and the cause is remanded to the Trial Court

for further proceedings. Costs of this appeal are assessed against the defendant appellee.



                          REVERSED AND REMANDED.



                                                ___________________________
                                                HENRY F. TODD, JUDGE




CONCUR:


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


___________________________
WILLIAM C. KOCH, JR., JUDGE




                                                -5-
