LUCY L. BOND,                          )
                                       )   Davidson Circuit
      Plaintiff/Appellant,             )   No. 96C-4542

VS.
                                       )
                                       )
                                                         FILED
                                       )
BELLE MEADE FUND PARTNERS,             )   Appeal No.   November 9, 1998
L.P.; BRANCH PROPERTY, L.P.,           )   01A01-9802-CV-00059
BRANCH PROPERTY LTD.                   )                Cecil W. Crowson
PARTNERSHIP,                           )               Appellate Court Clerk
                                       )
      Defendants/Appellees.            )


                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

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

                 HONORABLE THOMAS W. BROTHERS, JUDGE



Keith Jordan, BPR #3000
222 Second Avenue, North
Suite 360-M
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT


M. Bradley Gilmore, #13804
PARKER, LAWRENCE, CANTRELL & DEAN
200 Fourth Avenue North
Fifth Floor
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANTS/APPELLEES



                             REVERSED AND REMANDED.



                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION




CONCURS:
WILLIAM C. KOCH, JR., JUDGE
WILLIAM B. CAIN, JUDGE
LUCY L. BOND,                                   )
                                                )      Davidson Circuit
       Plaintiff/Appellant,                     )      No. 96C-4542
                                                )
VS.                                             )
                                                )
BELLE MEADE FUND PARTNERS,                      )      Appeal No.
L.P.; BRANCH PROPERTY, L.P.,                    )      01A01-9802-CV-00059
BRANCH PROPERTY LTD.                            )
PARTNERSHIP,                                    )
                                                )
       Defendants/Appellees.                    )


                                     OPINION

       The plaintiff sued for injury suffered when she stepped into a hole in the asphalt surface

of a parking lot provided for customers of Kroger Company. Kroger was dismissed by nonsuit,

and the remaining defendants were dismissed by summary judgment. Plaintiff appealed and

presented the following issue:

               I.      Whether a genuine issue of material fact has been
               raised by the plaintiff/appellant, so as to warrant this cause to
               be tried on its merits.


       The appellees-defendants presented the following issues:

               1.      Whether the trial court properly granted summary
               judgment to the defendants based on the plaintiff’s failure,
               after adequate time for discovery, to establish the existence of
               any evidence that the defendants created or had actual or
               constructive notice of an alleged defective condition on the
               premises that caused Ms. Bond’s fall.

               2.     Whether the trial court abused its discretion in
               excluding the affidavits of James Vance under Tenn.R.Evid.
               702 and 703.


       Pertinent portions of the complaint are:

                       That on or about December 19, 1995, LUCY L.
               BOND, traveled to the Kroger Co. Grocery store located at
               4500 Harding Road, Nashville, Davidson County, Tennessee.
               That while stepping out of her vehicle, she fell as a result of
               a sizeable hole in the pavement of the parking lot, resulting in
               a fractured ankle and other serious and complicated medical
               problems.

                      That the hole in the parking lot was a hazardous,
               dangerous condition unknown to the Plaintiff and is indicative

                                             -2-
               of failure on the part of the Defendants to properly maintain
               the premises for patrons of the store.

                       That the Defendants knew or should have known of
               the dangerous and hazardous conditions of the parking lot, but
               failed to properly maintain and repair such.


       The motion for summary judgment states:

                       The undisputed facts establish that the defendants
               neither created the condition nor had actual or constructive
               notice of it. The undisputed facts further establish that before
               the date of the plaintiff’s accident, the defendants exercised
               reasonable care in maintaining the parking lot.


       Evidence submitted in support of the motion consisted of the following:

       1.      The deposition of plaintiff containing the following:

                       Q.      And when you got out of your van, you got out
               the driver’s side?

                       A.      Yes.
                                           ----
                       Q.      Did you step down right into the hole?

                       A.        Yes. Because when I stepped down into the
               hole, that first step I was into the hole and I think I was on the
               ground.
                                              ----
                       Q.        Can you describe the hole that you fell in?

                        A.     I mean, it wasn’t like a big crater hole. It was
               like a -- I mean, it was just a -- like it was not smooth. It was
               just a hole. You know, it was --

                       Q.      Do you know how deep it was?

                       A.      Two or three inches.
                                            ----
                      Q.       My question is: Do you remember looking at
               the hole right after you fell?

                       A.      No.


       2.      The affidavit of defendants’ manager that, every 3 or 4 weeks, she inspected the

parking lot for defects, including potholes and had any discovered defects repaired.



       3.      An “on site maintenance person” was instructed to inspect the parking lot daily

for defects and to repair defects found.

                                                -3-
          4.     A commercial sweeping service swept the lot daily. If this service had reported

any defects they would have been repaired immediately.



          5.     Business records of the defendants show that the lot “underwent a major

improvement in 1988, potholes were patched and the pavement was resealed in 1994.



          6.     “Parking lot repair” was performed on February 10, 1995, “asphalt repair” was

performed on May 24, 1995, “seal and stripping lots” was performed August 23, 1995, “speed

bump repairs” were performed on December 14, 1995, and “concrete island replace” was

performed on December 21, 1995.



          7.     The lot was pressure washed intermittently and swept regularly.



          It is significant that, although the defendants’ affidavits indicate that systems and

personnel were in place to assure integrity and safety of the parking lot, no evidence is found that

“on or about December 19, 1996" or at any time shortly preceding that date, the lot was

examined and found to be free of potholes. Moreover, the lack of any report of potholes from

those who had the duty to report same is not conclusive evidence that there were no potholes.



          In contrast to the inference to be drawn from the negative evidence that no pothole was

reported, there is the positive deposition of plaintiff that there was a pothole at the time of her

injury.



          For purposes of reviewing the summary judgment, this Court must view the evidence of

plaintiff in its most favorable light and find that the existence of the pothole was a disputed issue

fact which must be resolved by a trial rather than by summary judgment. Barber v. Ralston

Purina Co., Tenn. App. 1991, 825 S.W.2d 96.




                                                -4-
       What constitutes reasonable care on the part of a parking lot in providing for the safety

of invitees is a question for the jury. Mumford v. Thomas, Tenn. App. 1980, 603 S.W.2d 154.



       In the past, some “trip and fall” suits have been dismissed under the “open and obvious

rule.” Plaintiff testified that the pothole was not open and obvious to her because her foot went

into the hole as she stepped from her vehicle. If her version of the incident is found to be true,

then the open and obvious rule might be held to be inapplicable. Moreover, the Supreme Court

has recently modified the open and obvious rule and revised the duty of the owner or controller

of a premises to an invitee or licensee who is injured on the premises.



       In Coln v. City of Savannah, for publication, March 30, 1988, Tenn. 1998, 966 S.W.2d

 34, the Supreme Court said:

                        After reviewing the two cases before us, 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.
                                             ----
                       In each of these premises liability cases, the plaintiff
               contends that the open and obvious rule does not preclude
               finding a duty owned by the defendant landowner and that an
               open and obvious danger is merely a factor for consideration
               in determining comparative fault under McIntyre v. Balentine.
               The landowner defendants in both cases maintain that the rule
               is intact; that there is no duty of care when an open and
               obvious condition results in injury to the plaintiff. The City
               of Savannah in Coln also contends that the plaintiff was at
               least 50 percent negligent, barring recovery under
               comparative fault.
                                             ----
                       We granted and consolidated these appeals to resolve
               the conflicting views and to determine the viability of the
               “open and obvious” rule after McIntyre; specifically, whether
               an “open and obvious” condition relieves a defendant’s duty

                                             -5-
of care or whether it merely is considered in assessing the
comparative fault of the parties.

        A negligence claim requires proof of the following
elements: (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 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).

        In McCall v. Wilder, supra, we 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.” Among the factors for consideration are

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

913 S.W.2d at 153.

        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.
McClung v. Delta Square Lt. Partnership, 937 S.W.2d 891,
901 (Tenn. 1996). Assuming a duty of care is owed, be it a
duty to refrain from creating a danger or a duty to warn
against an existing danger, it must then be determined
whether a defendant has conformed to the applicable standard
of care, which is generally reasonable care under the
circumstances. “Ordinary, or reasonable, care is to be
estimated by the risk entailed through probable dangers
attending to the particular situation and is to be commensurate
with the risk of injury.” Doe v. Linder Constr. Co., Inc., 845
S.W.2d 173, 178 (Tenn. 1992).

        If the plaintiff meets the burden of establishing the
defendant’s duty in a particular case, as well as the other
elements of the negligence claim, the trier of fact must apply
the principles of McIntyre v. Balentine, supra. In that case we
joined nearly every jurisdiction in holding that a plaintiff’s
contributory negligence no longer would bar recovery against
a tortfeasor and adopting a system of comparative negligence
in which the plaintiff’s negligence is compared to the fault of
the defendant or defendants. A plaintiff whose negligence is
less than that of a tortfeasor may now recover damages


                              -6-
               reduced by a percentage of the plaintiff’s own negligence.
               833 S.W.2d at 54.
                                             ----
                       In premises liability cases, application of duty
               principles resulted in imposing a duty on an owner or
               possessor of premises to exercise reasonable care under the
               circumstances to a guest (licensee) or business invitee. The
               duty includes the responsibility of either removing or warning
               against any latent or hidden dangerous condition on the
               premises of which one was aware or should have been aware
               through the exercise of reasonable diligence. Eaton v.
               McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Smith v. Inman
               Realty Co., 846 S.W.2d 819, 823 (Tenn. App. 1992).
                                             ----
                       (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
                       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.
                                             ----
                       We reject the defendants’ contentions that restriction
               of the open and obvious danger rule will preclude the trial
               court from applying mechanisms such as summary judgment
               and directed verdict to evaluate cases. By retaining the
               separate analysis of duty, and not totally subsuming all cases
               by applying comparative fault, the mechanisms of summary
               judgment and directed verdict remain viable to evaluate cases
               at preliminary stages in the proceedings.

       The evidence presented by defendants in support of their motion is not sufficiently

conclusive to entitle them to dismissal as a matter of law. Any doubt as to the existence of a

genuine issue of fact must be resolved against the moving party. Barber v. Ralston Purina




                                               -7-
Co., Tenn. App. 1991, 826 S.W.2d 96. Generally, what constitutes negligence on the parking

lot is a question for the jury. Mumford v. Thomas, Tenn. App. 1980, 603 S.W.2d 154.



       Complaint is made of the exclusion of the affidavit of a witness with 15 years

experience in the installation, maintenance and repair of asphalt surfaces. It is not necessary

for an “expert” who expresses an opinion to have any particular qualification except

knowledge of the subject matter which is not possessed by an ordinary person which

information would assist the trier of fact in reaching an accurate and just conclusion. TRE

Rule 702.



       Mr. Vance’s affidavit makes a prima facie showing that he is qualified to render an

opinion concerning the deterioration of asphalt based on his knowledge, experience, and

training gained from working with asphalt for fifteen years. Thus, the trial court erred, to the

extent that it excluded Mr. Vance’s affidavit based on his lack for more formal education or

qualifications.



       We also find that the trial court erred by striking Mr. Vance’s affidavit on the ground

that it lacked trustworthiness because Mr. Vance’s opinion was based on Ms. Bond’s

description of the pothole or because Mr. Vance did not explain how he arrived at his

conclusion that a pothole of the size described by Ms. Bond “would have taken numerous

months to develop.” These are certainly appropriate considerations when the trial court is

performing its “gate keeper” function at trial, but the same standards do not apply at the

summary judgment stage.



       The courts customarily treat the papers of a party opposing a motion for summary

judgment more indulgently than the papers of the party seeking the summary judgment. The

evidence supporting and opposing a summary judgment will be considered in the light most

favorable to the opposing party, see Speaker v. Cates Co., 879 S.W.2d 811, 813 (Tenn.

1994), and the nonmoving party is also entitled to all favorable inferences that can be

                                              -8-
reasonably drawn from the proof. See Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).

The court’s indulgence may extend to technically defective papers that inform the court of

important relevant evidence that the nonmoving party can and will introduce at trial. See 6

James A. Moore, et al., Moore’s Federal Practice § 56.22[1] (2d ed. 1995); 10A Charles A.

Wright, et al., Federal Practice and Procedure § 2738, at 485 (2d ed. 1983).



        Mr. Vance’s affidavit should not have been stricken because it did not contain a

description of how Mr. Vance arrived at his opinion. Tenn. R. Civ. P. 56.06 provides that the

adequacy of expert affidavits should be measured by the requirements of the rules of

evidence. Tenn. R. Evid. 705 permits experts to give an opinion without prior disclosure of

the underlying facts or data. Thus, Mr. Vance’s affidavit was competent. It does not

necessarily follow, however, that Mr. Vance will be able to give an expert opinion at trial.

Like any other expert witness, Mr. Vance may be subjected to cross-examination concerning

the basis of his opinion, and the trial court, acting as gate keeper, may exclude Mr. Vance’s

opinion if it determines that the opinion will not substantially assist the trier of fact or that the

facts, data, or methodology on which the opinion is based indicates a lack of trustworthiness.



        The summary judgment in favor of defendants is reversed and vacated. Costs of the

appeal are taxed against the defendants-appellees. The cause is remanded to the Trial Court

for further proceedings consistent with this opinion.




                               REVERSED AND REMANDED.



                                                        _________________________________
                                                        HENRY F. TODD
                                                        PRESIDING JUDGE, MIDDLE SECTION

                                                -9-
CONCUR:


____________________________
WILLIAM C. KOCH, JR., JUDGE


____________________________
WILLIAM B. CAIN, JUDGE




                               -10-
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT NASHVILLE



LUCY L. BOND,                                 )
                                              )     Davidson Circuit
       Plaintiff/Appellant,                   )     No. 96C-4542
                                              )
VS.                                           )
                                              )
BELLE MEADE FUND PARTNERS,                    )     Appeal No.
L.P.; BRANCH PROPERTY, L.P.,                  )     01A01-9802-CV-00059
BRANCH PROPERTY LTD.                          )
PARTNERSHIP,                                  )
                                              )
       Defendants/Appellees.                  )


                                       JUDGMENT

       In accordance with the opinion of the Court filed herein, the judgment of the Trial

Court is reversed. Costs of this appeal are adjudged against the defendants-appellees. The

cause is remanded to the Trial Court for necessary further proceedings consistent with the

opinion of this Court.




                                             __________________________________
                                             HENRY F. TODD,
                                             PRESIDING JUDGE, M.S.


                                             ____________________________________
                                             WILLIAM C. KOCH, JR., JUDGE


                                             ____________________________________
                                             WILLIAM B. CAIN, JUDGE
