                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                ______________________________________________

ALICE HOLDEN,

      Plaintiff-Appellant,
                                                Fayette Circuit No. 3798
Vs.                                             C.A. No. 02A01-9902-CV-00040

FRED’S STORES OF TENNESSEE,
INC.,

     Defendant-Appellee.
______________________________________________________________________
______

                   FROM THE FAYETTE COUNTY CIRCUIT COURT
                 THE HONORABLE JON KERRY BLACKWOOD, JUDGE




                           Alan G. Crone and James J. Webb, Jr.
                         Crone & Mason of Memphis, For Appellant

                      David L. Bearman and Bradley E. Trammell
            Baker, Donelson, Bearman & Caldwell of Memphis, For Appellee




                             REVERSED AND REMANDED

                                      Opinion filed:




                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE


                                                                               Page 1
HOLLY KIRBY LILLARD, JUDGE




         This is a premises liability case. Plaintiff, Alice Holden, appeals from the order of the

trial court granting summary judgement to defendant, Fred’s Stores of Tennessee, Inc.

         On November 27, 1995, Ms. Holden went shopping at Fred’s in Somerville,

Tennessee in order to purchase prescriptions for her mother and a few other household

items.    Entering through the front door she proceeded down aisle seven toward the

pharmacy located at the back of the store. On her way down the aisle, plaintiff came upon

another shopper who was pushing a basket. Prior to plaintiff’s arrival at the store, a bottle of

lamp oil had broken in aisle seven. An employee had attempted to clean up the spill with

water and a mop and had placed a yellow warning sign in aisle seven. As plaintiff passed

the other patron and entered the area of the aisle covered by oily water, she slipped and fell,

landing on her left leg with her arms and head landing in the shelving. It was at this time,

after plaintiff fell, that plaintiff first noticed the A-frame yellow warning sign, advising “

Caution-Wet Floor.”           It is an uncontested fact that there was oil and water on the floor

at the time that plaintiff proceeded down aisle seven, however there remains a dispute as to

whether the warning sign posted by the defendant was sufficient warning to the plaintiff.

         Ms. Holden’s complaint alleges that she suffered pain and suffering, diminishment of

the enjoyment of the ordinary pleasures of life, person injury, and            incurred medical

expenses.

         Plaintiff presented five issues on appeal; however, we perceive the dispositive issue

to be whether the trial court erred in granting defendant’s motion for summary judgment.

         A motion for summary judgment should be granted when the movant demonstrates

that there are no genuine issues of material fact and that the moving party is entitled to a

judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party



                                                                                                     Page 2
moving 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. 1997). On a

motion for summary judgment, the court must take the strongest legitimate view of the

evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.

1993), our Supreme Court stated:

              Once it is shown by the moving party that there is no genuine
              issue of material fact, the nonmoving party must then
              demonstrate, by affidavits or discovery materials, that there is a
              genuine, material fact dispute to warrant a trial. In this regard,
              Rule 56.05 provides that the nonmoving party cannot simply rely
              upon his pleadings but must set forth specific facts showing that
              there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

       Summary judgment is only appropriate when the facts and the legal conclusions

drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900

S.W.2d 23, 26 (Tenn. 1995).        If the facts are uncontroverted, summary judgment is

inappropriate if reasonable minds could differ as to the inferences to be drawn therefrom.

Keene v. Cracker Barrel Old County Store, Inc., 853 S.W2d 501 (Tenn. App. 1992);

Prescott v. Adams, 627 S.W.2d 134 (Tenn. App. 1981). Since only questions of law are

involved, there is no presumption of correctness regarding a trial court's grant of summary

judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of

summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk,

954 S.W.2d 722, 723 (Tenn. 1997).

       Ms. Holden contends that Fred’s Stores did not discharge their duty to warn her of a

slippery floor. According to Ms.      Holden’s deposition testimony the warning sign was

shoved up against the shelving so that the warning was not visible to her as she proceeded

down aisle seven and that the words of warning were actually facing the shelves.       Ms.



                                                                                              Page 3
Holden further asserts that given the placement of the sign, against the shelving, the finder of

fact could conclude that it would be reasonable for a person to think that its placement

against the shelves indicated that the spill and



clean up were limited only to a small area, close to the shelving, while the rest of the aisle

remained clean and dry. Or, the signs placement could lead a finder of fact to conclude that

the spill had been cleaned up and that the sign had remained so long that it had been

pushed up against the shelves, and thus disregard the sign. A juror could conclude that a

reasonable person walking in the aisle could come to one of many reasonable conclusions

upon viewing the sign at the time that Ms. Holden fell. Ms. Holden asserts that because

reasonable minds would not necessarily reach only one conclusion --that the sign gave

adequate warning of the present danger, a floor wet with oil and water -- that there exists a

genuine issue of material fact.

       In addition to the assertion that reasonable minds could come to more than one

conclusion about the placement of the warning sign, Ms. Holden contends that the language

on the sign warned of a wet floor, yet the substance on the floor was a mixture of oil and

water. A reasonable person might proceed over a floor that he believed was wet with water,

while the same person might not proceed over a floor that he knew was covered with oil and

water. Ms. Holden asserts that a patron might reasonably think that the signed warned of

water that would dry, instead of oil and water that would not dry, therefore the warning

provided by Fred’s was inadequate because it did not warn patrons of the real danger

present. In view of the differences between the risks associated with oil and water Ms.

Holden argues that despite the fact that Fred’s placed a warning sign in aisle seven, it failed

to warn of a latent danger and therefore breached its duty of care.

       Fred’s asserts that once they placed the caution sign in aisle seven they had met or

exceeded the applicable standard of care. Fred’s asserts that the sign was placed in such

a way that the cautionary language was visible to patrons walking from the front or from the



                                                                                                   Page 4
back of the store. Fred’s contends that although Ms. Holden disputes the placement of the

sign at the time of her fall, she admitted that she did not know the original position of the

sign and further admitted that the sign was




present at the time of her fall. Fred’s relies on the affidavit of their Somerville store manager
1
    to define the applicable standard of care with regard to warning patrons about wet or

slippery floors. According to their store manager, the duty of care to warn customers of a

wet or slippery floor is met by placing a brightly colored caution sign in the immediate area

of the spill. Fred’s contends that the proper question before this Court is not whether Ms.

Holden actually saw the bright yellow caution sign, but rather, whether Fred’s discharged its

duty by placing a warning sign in aisle seven that was reasonably calculated to give Ms.

Holden notice of the condition of the floor. Furthermore, whether language on the sign was

visible to Ms. Holden at the time that she fell is not an issue, since Ms. Holden admitted to

knowing the purpose of brightly colored signs, such as the one used by Fred’s Stores.

         Fred’s Stores asserts that Ms. Holden’s argument, that oil and water present two

different levels of danger, and therefore two different levels of care, is completely

unsupported by any evidence or by affidavit, expert or otherwise. Fred’s Stores contends

that the argument made by Ms. Holden that suggests what reasonable people might think

upon viewing the sign is nonsensical and completely unsupported by the record.

         Fred’s asserts that it is entitled to summary judgment not only because it discharged

its duty as a matter of law, but also because the facts of this case demonstrate that Ms.

Holden is at least 50% negligent as a matter of law. Fred’s contends that Ms. Holden had

an adequate opportunity to become aware of her path, as she was a frequent shopper at

Fred’s, visiting there three or four times a week. Furthermore, Fred’s contends that Ms.

Holden admitted to walking past the sign before she fell. Fred’s argues that reasonable



                                                                                                    Page 5
minds could not differ in concluding that Ms. Holden’s inattention, as a matter of law, was the

sole cause, or




at the least 50% the cause of her injury. Fred’s asserts that, assuming the caution sign was

in the position that Ms. Holden claimed, it would have protruded into the aisle, blocking

almost one third of the aisle. Fred’s contends that since Ms. Holden was familiar with the “A

” frame signs and their purpose, she had ample opportunity to see the sign, and take steps

to avoid any danger.

       Finally Fred’s asserts that an independent basis for supporting summary judgment is

that once it had placed the warning sign in aisle seven, any danger became an open and

obvious one, thereby precluding Ms. Holden of any recovery. Fred’s asserts that as a

matter of law it is not foreseeable that a customer who is familiar with the purpose of a

brightly colored warning sign, and who walked directly around and past the sign visible to

anyone who was attentive, would fall on the very thing that the sign warned of -- a wet floor.

       In order to bring a successful suit based on a claim of negligence, the plaintiff must

establish:

              (1) a duty of care owed by the defendant to the plaintiff; (2)
              conduct falling below the        applicable standard of care
              amounting to a breach of that duty; (3) an injury or loss; (4)
              causation in fact; and (5) proximate, or legal cause.

       Bradshaw v. Daniel, 854 S.W. 2d 865, 869 (Tenn. 1993) (citing McClenahan v.

Cooley, 806 S.W. 2d 767, 774 (Tenn. 1991); Lindsey v. Miami Dev. Corp., 689 S.W. 2d

856, 858 (Tenn. 1985)).     Duty, the first element of the claim, is the legal obligation a

defendant owes to a plaintiff to conform to the reasonable person standard of care in order

to protect against unreasonable risks of harm. McCall v. Wilder, 913 S.W.2d 150, 153

(Tenn. 1995). Whether a defendant owes a duty to a plaintiff in any given situation is a




                                                                                                  Page 6
question of law for the court. Bradshaw, 854 S.W.2d at 869.

       The existence and scope of the duty of the defendant in a particular case rests on all

the relevant circumstances, including the foreseeability of harm to the plaintiff and other

similarly situated persons. Pittman v. Upjohn Co., 890 S.W.2d 425, 433



(Tenn. 1994).

       Once duty is established, the question of breach of duty and proximate cause of the

plaintiff’s injury are usually treated as questions of fact.

                [W]hether the defendant breached its duty and whether the
                breach proximally caused the injury are generally decided by the
                trier of fact. (citations omitted) These questions become
                questions of law only when the facts and inferences
                drawn from the facts permit reasonable persons to reach
                only one conclusion.


Kelley v. Johnson, 796 S.W.2d 155, 157 (Tenn. App. 1990)(citation omitted) (emphasis

added).

       In cases involving premises liability, the premises owner has a duty to exercise

reasonable care under the circumstances to prevent injury to persons lawfully on the

premises. Eaton v. McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994). This duty is based

upon the assumption that the owner has superior knowledge of any perilous condition that

may exist on the property. Kendall Oil Co. v. Payne, 41 Tenn. App. 201, 293 S.W.2d 40,

42 (1955). The duty includes the obligation of the owner to maintain the premises in a

reasonably safe condition and to remove or warn against latent or hidden dangerous

conditions on the premises of which the owner is aware or should be aware through the

exercise of reasonable diligence. Eaton, 891 S.W.2d at 593-94. The duty of a premises

owner is “a duty of reasonable care under all the circumstances” Jones v. Exxon Corp.,

940 S.W.2d 69, 71 (Tenn. App. 1996)(quoting Eaton at 593). The scope of this duty is

grounded upon the foreseeability of the risk involved. Id. at 72 Thus, in order to prevail in a

premises liability action, the plaintiff must show that the injury was a reasonably foreseeable



                                                                                                  Page 7
probability and that some action within the defendant’s power more probably than not would

have prevented the injury. Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992).



       Traditionally, liability was not imposed on a premises owner by courts of this




state for injuries that resulted from defective or dangerous conditions that were “open and

obvious.” See McCormick v. Waters, 594 S.W.2d 385 (Tenn. 1980); Kendall Oil Co. v.

Payne, 41 Tenn. App. 201, 293 S.W.2d 40 (1955).             However, the Supreme Court of

Tennessee recently restricted this rule of law providing a balancing test in Coln v. City of

Savannah, 966 S.W.2d 34 (Tenn. 1998). The Coln Court held:

              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.

Id. at 43.

       The Coln Court further stated that “summary judgment remains appropriate where

the plaintiff has not produced sufficient evidence to meet any component of a negligence

claim, as a matter of law.” Id. at 44.

       Fred’s supports summary judgment in its brief by arguing that once Fred’s placed the

yellow caution sign in the aisle they had met the standard of care. Fred’s relies on Coln v.

City of Savannah, 966 S.W.2d 34 (Tenn. 1998), arguing that any peril that existed became

open and obvious, thereby relieving the Fred’s of any further duty. In addition, Fred’s argues

that summary judgement is proper because Ms. Holden is at least 50% negligent.

        In the majority of cases after the decision of the Tennessee Supreme Court in

McIntyre v. Balentine, 833 S.W. 2d 52 (Tenn. 1992):

              [w]hen an invitee is injured because of dangers that are
              obvious, reasonably apparent, or as well know to the injured
              party as to the owner or operator of the premises, liability, if any



                                                                                                 Page 8
               should be determined in accordance with the principles of
               comparative fault analysis and the general negligence law of
               this state.

Jones, 940 S.W. 2d at 72 (quoting Cooperwood v. Kroger Food Stores, Inc., No.

02A01-9308-CV-00182, 1984 WL 725217 (Tenn. App. W.S. Dec. 30,1994)).                  Before

McIntyre, under the contributory negligence system the determination of




liability included the notion that:

               [n]egligence, contributory negligence, and proximate cause are
               ordinary issues to be decided by the jury, and can be withdrawn
               from the jury and decided by the court only in those cases where
               the facts are established by evidence free from conflict, and the
               inference from the facts is so certain that all reasonable men, in
               the exercise of a free and impartial judgment, must agree upon
               it.

Prince By and Through Bolton v. St. Thomas Hosp., 945 S.W. 2d 731, 735 (Tenn. App.

1996) (quoting Frady v. Smith, 519 S.W. 2d 584, 586 (Tenn. 1974)(regarding a motion for

a directed verdict) (citation omitted)). That notion did not change after the adoption of

comparative fault, and the principle remains that “comparison and allocation of fault issues

are properly left to the jury.” Id. at 735

       In arguing that Fred’s did not breach its duty of care to Ms. Holden, Fred’s cites the

Ohio case Nibert v. K-Mart Corp., No. CA89-09-019, 1990 WL 67011 (Ohio App. May 21,

1990), appealed to Ohio S. Ct. dismissed, 563 N.E.2d 297 (Ohio 1997) (court held that

summary judgment for the defendant was proper, stating that the warning was “reasonably

calculated to give an invitee knowledge of a dangerous or hazardous condition”. Id. at *3).

Fred’s also argues that where a business owner has discharged his duty with adequate

warning, there is not a latent condition and defendant owes no further duty to plaintiff.

Dillard v. Vanderbilt University, 970 S.W.2d 958, 960 (Tenn Ct. App. 1998).

       We disagree with the defendant that the warning satisfied the duty requirement as a



                                                                                                Page 9
matter of law, and instead agree with the plaintiff, that reasonable minds could differ on

whether the defendant breached its duty of care. The deposition testimony of a department

manager for the Fred’s at pages 33-34 is illustrative on this point.

                Q:      I think my previous question was, do you remember
                anything being on the floor when you arrived at the scene of the
                accident and found Ms. Holden in the floor? I thought you
                testified that you didn’t remember there being anything on the
                floor.
                A:      Well, the “wet floor” sign was there, and, no, I




                       don’t remember anything just being right on the floor.
                       The “wet floor” sign tells me that something has been
                       cleaned up there. 2

         With the presence of oil on the floor it is not unreasonable to expect Fred’s to at least

close the aisle and immediately clean the floor.

         Following the analysis in Coln with regard to the duty issue, by weighing the

foreseeable risk and gravity of harm against the burden placed on the defendant to engage

in alternative conduct, we are of the opinion that a jury could conclude the harm was

reasonably foreseeable and reasonable minds could differ in requiring alternative conduct.

Under the circumstances present in this case, we hold that record does not lead reasonable

minds to only one conclusion in considering if the defendant breached its duty to the

plaintiff.

         In light of our conclusion that reasonable minds could differ on whether the defendant

breached its duty of care in providing an adequate warning of the wet, oily floor, we do not

agree with the defendant that Ms. Holden was at least 50% negligent as a matter of law.

                Accordingly, the order of the trial court      granting summary judgment is

reversed and this case is remanded for such further proceedings as necessary. Costs of

appeal are assessed to Appellee.




                                                                                                     Page 10
_________________________________
                                       W. FRANK CRAWFORD,
                                       PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




                                                               Page 11
