JEROME R. HERBISON and              )
MARGARET H. HERBISON,               )    Davidson Circuit
                                    )    No. 96C-2636
      Plaintiffs/Appellants,        )
                                    )
VS.                                 )
                                    )
HANSEN CHRYSLER-PLYMOUTH,           )
INC.,

      Defendant/Appellee.
                                    )
                                    )
                                    )
                                         Appeal No.
                                                       FILED
                                         01A01-9710-CV-00594

                                                            August 19, 1998
                  IN THE COURT OF APPEALS OF TENNESSEE
                                                    Cecil W. Crowson
                             AT NASHVILLE
                                                  Appellate Court Clerk
        APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

                  HONORABLE BARBARA N. HAYNES, JUDGE




Robert L. Whittaker, #17209
1712 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

John E. Herbison, #12659
2016 Eighth Avenue South
Nashville, Tennessee 37204
ATTORNEYS FOR PLAINTIFFS/APPELLANTS

Gareth S. Aden, #2371
GULLETT, SANFORD, ROBINSON & MARTIN, PLLC
230 Fourth Avenue North, 3rd Floor
P.O. Box 198888
Nashville, Tennessee 37219-8888
ATTORNEY FOR DEFENDANT/APPELLEE


                           AFFIRMED AND REMANDED.



                                    HENRY F. TODD
                                    PRESIDING JUDGE, MIDDLE SECTION




CONCURS:
WILLIAM B. CAIN, JUDGE

CONCURS IN RESULT:
WILLIAM C. KOCH, JR., JUDGE
JEROME R. HERBISON and                         )
MARGARET H. HERBISON,                          )       Davidson Circuit
                                               )       No. 96C-2636
       Plaintiffs/Appellants,                  )
                                               )
VS.                                            )
                                               )
HANSEN CHRYSLER-PLYMOUTH,                      )
INC.,                                          )       Appeal No.
                                               )       01A01-9710-CV-00594
       Defendant/Appellee.                     )



                                      OPINION

       The plaintiffs, Jerome R. And wife Margaret Herbison, have appealed from the summary

dismissal of their suit against the defendant, Hansen Chrysler-Plymouth, Inc., for injuries

received by Mr. Herbison on the premises of the defendant when he tripped on a metal strip

imbedded in the concrete floor on the premises of defendant.



       The defendant is an automobile dealer with a large shop for servicing and repairing

automobiles. The parts department is located in the shop. The outside entrance to the shop is

equipped with doors which close against a metal strip which protrudes from 15/16 inch to 1-1/8

inch above the level of the concrete floor.



       Mr. Herbison operates his own auto repair shop and occasionally enters defendant’s shop

through the described door way in order to procure parts from the parts department. As he

entered the shop, he noticed that the parts department had been moved and was looking for it as

he tripped on the protruding track. He testified that the track could have been made safe for

pedestrians by welding additional metal on each side of the track to create a beveled slope, rather

than an abrupt change of elevation.



       The defendant moved for summary judgment upon the deposition of Mr. Herbison stating

the above facts. The memo supporting the motion cited Eaton v. McLain, Tenn. 1994, 891

S.W.2d 587, in which the Supreme Court recognized the “open and obvious” rule in respect to


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premises liability despite the adoption of “comparative fault” in McIntyre v. Ballentine, Tenn.

1992, 833 S.W.2d 52.



       The Trial Court sustained the motion and dismissed plaintiffs’ suit without stating a

reason, but it is clear that the open and obvious rule was the reason.



       The only issue on appeal is the correctness of the summary judgment.



       Defendant’s motion for summary judgment was supported by plaintiffs’ responses to a

request for admissions, the deposition of the injured plaintiff, and the depositions of Dennis

Hansen and Erik A. Olson.



       The responses of the plaintiffs and the deposition of the injured plaintiff established that

he had operated an auto repair shop for 23 years, that he visited defendants premises three or four

times a year to purchase repair parts, that he almost always entered the shop of the defendant

through the doorways used for moving vehicles into the shop, that, on July 24, 1995, he parked

in the parking lot and walked to the doorway he ordinarily used, that he tripped on a yellow metal

ridge in the floor of the doorway, that if he had been looking at his path he would have seen the

yellow metal ridge, but he was looking ahead for the parts department which had been moved

to a different part of the shop. He admitted that there were signs at the scene which read “Do not

use vehicle doors to enter bay, walk in Service Entrance” with arrow pointing to another door,

and “Service Entrance” beside the other door, but that he thought the signs referred to service

customers and not parts customers.



       The parties stipulated that the metal strip protruded 15/16 inch to 1-1/8 inch above the

concrete floor.




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       Plaintiffs’ response to the interrogatory admitted that the metal strip did not violate any

building code.



       The injured plaintiff’s deposition stated that the entrance where he was injured could be

made safer for pedestrians by welding strips on either side of the imbedded strip so as to form

a sloping ramp and by painting said ramps with yellow paint.



       In his deposition, the service manager admitted that pedestrians do use the vehicle

entrance and that, other than the signs, they have not been forbidden or prevented form doing so.



       At the time of the decision of the Trial Court, the open and obvious rule had been

recognized as the law of Tennessee. However, on March 30, 1998, the Supreme Court released

its opinion in Coln v. City of Savannah, for publication, in which the Court said:

                         After reviewing the two cases before use, the
                 extensive literature, our Tennessee cases on the subject, and
                 cases from other jurisdictions, we conclude that an open and
                 obvious danger does not automatically result in a finding of
                 no duty and therefore no landowner liability. As in any
                 negligence action, we think 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 a defendant’s
                 conduct outweigh the burden upon the defendant to engage
                 in alternative conduct that would prevent the harm. McCall
                 v. Wilder, 913 S.W.2d 150 (Tenn. 1995). Applying this
                 analysis, if the foreseeability and gravity of harm posed by
                 the defendant’s conduct, even if “open and obvious,”
                 outweigh the burden upon the defendant to engage in
                 alternative conduct, the defendant has a duty to act with
                 reasonable care and the comparative fault principles apply
                 under McIntyre v. Balentine, supra.
                                               ----
                         (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.
                                               ----
                         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

                                             -4-
                       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.

                      Moreover, the open and obvious rule is inconsistent
               with our cases which analyze duty by balancing
               foreseeability and gravity of harm with feasibility and
               availability of alternatives that would have avoided the harm.


       In accordance with the directive of the Supreme Court, this Court has evaluated the

nature of the danger, the duty of a reasonably prudent user of the premises and have

concluded that the controller of the premises performed its duty and the sole cause of the

injury was the culpable inattention of the injured party.



       Even though the attention of the injured party may have been diverted by his search

for the parts department, he had adequate opportunity to familiarize himself with the nature

of his pathway in his previous visits and, on the day of his injury as he approached the

doorway from the parking lot. This conclusion renders unnecessary any consideration of

comparative negligence.



       The judgment of the Trial Court is affirmed. Costs of this appeal are assessed to the

appellants. The cause is remanded to the Trial Court for necessary further proceedings.

                          AFFIRMED AND REMANDED.

                                                     _________________________________
                                                     HENRY F. TODD
                                                     PRESIDING JUDGE, MIDDLE SECTION
CONCURS:

_____________________________
WILLIAM B. CAIN, JUDGE


CONCURS IN RESULT:

_____________________________
WILLIAM C. KOCH, JR., JUDGE

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