                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    October 9, 2003 Session

                DANA FRIEDENSTAB, ET AL. v. MARTHA SHORT

                     Appeal from the Circuit Court for Williamson County
                           No. II-01386 Donald P. Harris, Judge


                      No. M2003-00603-COA-R3-CV - Filed May 27, 2004


FRANK G. CLEMENT , JR., J., dissenting.

        The majority has determined that summary judgment was proper because the plaintiff failed
to establish that the defendant owed her a duty and that the plaintiff was responsible for no less that
50% of her own injuries. I respectfully disagree.

        In the order granting the defendant’s motion for summary judgment, the trial court only listed
four grounds upon which it based its decision. One of the four grounds relied on by the trial court
was “that the newspapers were open and obvious.” As the majority noted, Tennessee restricted the
“traditional open and obvious rule” in Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998) and
adopted Restatement (Second) of Torts, § 343A. Our Supreme Court concluded that attempting to
analyze the duty issue simply by labeling some conditions “open and obvious,” without consideration
of any surrounding circumstances, promoted arbitrary and inconsistent results. Id. at 42. Finding
the open and obvious rule inconsistent with Tennessee cases, “which analyze duty by balancing
foreseeability and gravity of harm with feasibility and availability of alternatives that would have
avoided the harm,” our Supreme Court held:

                We deem the Restatement approach to be the better reasoned and more
       persuasive analysis. The principles stated in the Restatement (Second) of Torts, §
       343A relate directly to foreseeability and facilitate consideration of the duty issue.
       Whether the danger was known and appreciated by the plaintiff, whether the risk was
       obvious to a person exercising reasonable perception, intelligence, and judgment, and
       whether there was some other reason for the defendant to foresee the harm, are all
       relevant considerations that provide more balance and insight to the analysis than
       merely labeling a particular risk “open and obvious.” In sum, the analysis recognizes
       that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on
       a defendant, despite its potentially open and obvious nature.

Coln, 966 S.W.2d at 42.
        Though the plaintiff’s testimony, which is set forth in her discovery deposition and in
affidavits presented in opposition to the motion for summary judgment, can be interpreted as
somewhat inconsistent, her testimony is not contradictory and the court should not ignore it.
Pertinent parts of the plaintiff’s testimony read:

       P       “I just didn’t see any papers until my foot hit them and flew out from under
               me.”
       P       “I was looking where I was going because I always did and I didn’t have any
               reason to think that it would be any different that day because [the defendant]
               had never had papers there before, ever.”
       P       “[The newspapers] were at the bottom of the steps on the garage floor.”
       P       “They just weren’t that visible until I hit them.”
       P       “There had never been any papers at the bottom of the stairs before, ever.”
       P       “I was looking where I was going, but no, I wasn’t looking to see if there was
               papers laying down there.”
       P       When asked where the papers were, she answered, “under the last step going to the
               garage on the floor, under the last step.”
       P       When asked why she didn’t see them she testified, “they were not that visible until
               my foot was hitting them.”

         The defendant admitted frequently placing used newspapers at or near the bottom of the
steps, though she denied having actual knowledge of newspapers being immediately under or in front
of the last step. The defendant testified that she had placed newspapers at the bottom of the stairs
for years in contemplation of recycling them. She admitted that she placed the old newspapers on
the garage floor at the bottom of the steps and that it was her normal routine to place old newspapers
at the bottom of the steps, on one side or the other “[j]ust however it is convenient.” When asked
what she normally does with the newspapers when taking them out to the garage she testified, “I go
down the steps and stack them close together, next to the staircase. There is a banister there and I
just stack them on either side and start a pile of newspapers.”

        In any negligence case, an issue is whether the defendant owed the plaintiff a duty, that is
whether there was a duty in accordance with the foreseeability and gravity of harm, and the
feasibility and availability of alternatives to prevent the harm. See Coln v. City of Savannah, 966
S.W.2d 34, 39 (Tenn. 1998). That may include a duty to refrain from creating a danger. Id. at 39.
The owner or occupier of land has a duty to exercise reasonable care to prevent injury to persons
lawfully on the premises. Rice v. Sabir 979 S. W.2d 305, 308 (Tenn. 1998). That duty to exercise
reasonable care includes the responsibility to refrain from creating a danger that the owner should
have been aware of through the exercise of reasonable diligence. Coln at 39.

        The second part of Restatement rule § 343A states that the open and obvious rule applies
unless the owner or possessor of the premises should anticipate the harm despite such knowledge
or obviousness to the plaintiff. Restatement (Second) of Torts, § 343A. (emphasis added)
Moreover, a danger to a plaintiff that was “open or obvious” does not ipso facto, relieve a defendant


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of a duty of care. Coln at 43. “[T]he 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.” Coln at 43. The foreseeability and gravity of harm resulting from the defendant placing
old newspapers at or near the bottom of stairs, as opposed to the alternatives of placing them
elsewhere, is a question that should be decided by a jury for, as stated in Coln, “the question of
whether a particular site or place or condition is unsafe or dangerous is a question of fact.” Coln at
45.

         Summary judgment is appropriate “when there is no dispute over the evidence establishing
the facts that control the application of a rule of law,” Byrd v. Hall, 847 S. W.2d 208, 214 (Tenn.
1993); however, the trial court must view the evidence,“ in the light most favorable to the opponent
of the motion.” Stone v. Hinds, 541 S. W.2d 598, 600 (Tenn. App. 1976). Although summary
judgment is a proper mechanism with which to evaluate the “duty” component of a negligence claim,
Coln at 45-46, genuine issues of material fact exist which preclude summary judgment against
plaintiff’s negligence claim on the question of proximity of the old newspapers in relation to the
bottom of the stairs and whether the risk of harm created by the defendant, who “stacked” old
newspapers at or near the bottom of the stairway in the various manners she found convenient to her,
was unreasonable despite the alleged open and obvious nature, and thus whether foreseeability and
gravity of harm outweighed the burden imposed on the defendant to protect against that harm to
establish a duty. In Coln the defendant homeowners had removed a “skimmer” from their pool deck
thereby creating a dangerous opening which they did not elect to otherwise cover, they invited the
plaintiff onto the deck and did not warn the plaintiff of the opening.1 The supreme court held that
the trial court erred in granting summary judgment because there was a factual issue as to the risk
of harm, whether it was unreasonable despite its open and obvious nature, and whether the
foreseeability and gravity of the harm outweighed the burden imposed by protecting against that
harm to establish a duty on the homeowner. As in both cases in Cohn, it was error for the trial court
to grant summary judgment.




                                                                  ______________________________
                                                                          FRANK G. CLEMENT, JR., JUDGE




         1
          Coln v. City of Savannah involved two separate premises liability cases. The first case involved the City of
Savannah and whether the city owed a landowner duty for the alleged negligent installation of brick pavers in a sidewalk.
The second case, Vancleave v. Markowski involved a pool deck and the facts referenced above. The two cases involved
a common question to both – whether and to what extent the traditional open and obvious rule eliminating a landowner’s
duty to one injured as a result of an open and obvious danger continues to be viable after the adoption of comparative
fault in McIntyre v. Balentine.

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