DORIS KEOWN,                      )
                                  )   Davidson Circuit


VS.
     Plaintiff/Appellant,         )
                                  )
                                  )
                                      No. 96C-2810
                                                     FILED
                                  )
                                                   September 14, 1998
FIDDLER’S INN, d/b/a FIDDLERS INN )   Appeal No.
NORTH and JAH, INC.,              )   01A01-9712-CV-00730
                                                    Cecil W. Crowson
                                  )
                                                  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 BARBARA N. HAYNES, JUDGE



David B. Lyons, #11046
601 Woodland Street
Nashville, Tennessee 37206
ATTORNEY FOR PLAINTIFF/APPELLANT


Scott A. Rhodes, #16870
BREWER, KRAUSE & BROOKS
P.O. Box 23890
Nashville, Tennessee 37202-3890
ATTORNEY FOR DEFENDANTS/APPELLEES


                     REVERSED AND REMANDED.



                                 HENRY F. TODD, JUDGE




CONCUR:

BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE
DORIS KEOWN,                      )
                                  )                   Davidson Circuit
     Plaintiff/Appellant,         )                   No. 96C-2810
                                  )
VS.                               )
                                  )
FIDDLER’S INN, d/b/a FIDDLERS INN )                   Appeal No.
NORTH and JAH, INC.,              )                   01A01-9712-CV-00730
                                  )
     Defendants/Appellees.        )



                                     OPINION

       This is a premises liability case in which the plaintiff, Doris Keown, sued the defendants,

owner and tenant, for injuries sustained by plaintiff in a fall allegedly caused by a 3 inch rise

from a parking area to the concrete walkway at the entrance of a hotel. The Trial Judge rendered

summary judgment for the defendants, and plaintiff appealed. The sole issue on appeal is the

correctness of the summary judgment.



       Heretofore actions for defective premises have been subject to summary dismissal under

the “open and obvious risk.” However, on March 30, 1998, the Supreme Court revised the rule

in Coln v. City of Savannah, Tennessee, Tenn. 1998,        S.W.2d      , in which the Court said:

                       In June of 1992, the City of Savannah (“City”)
               contracted to have decorative brick pavers installed in front of
               the entrance of its City Hall building. The brick pavers were
               installed on top of a bed of sand in an area approximately
               thirteen and one-half feet wide by sixteen and one-half feet
               long; the surface of the pavers when installed was below the
               level of the adjacent concrete sidewalk that led to the door of
               the City Hall building.

                       On November 2, 1992, the plaintiff, Hazel Coln, who
               was 68 years of age, walked across the brick pavers toward
               the entrance of the building and tripped on the lip of the
               concrete sidewalk adjacent to the brick pavers. She fell,
               injuring her left wrist and arm. Coln conceded that the
               weather had been clear and sunny, and that nothing prevented
               her from seeing the brick pavers or the sidewalk.

                        William Gilchrist, the landscape designer who
               installed the brick pavers, testified that there was a deviation
               approximately three-eighths of an inch between the pavers
               and sidewalk when the pavers were installed. Gilchrist
               testified that the deviation was due to the settling of sand
               beneath the pavers. Gilchrist told Bill Fox, the assistant

                                             -2-
manager of the City, that a deviation existed and that half of
the pavers would have to be replaced to correct the deviation.

         Fox testified that he knew about the deviation between
the pavers and the sidewalk, but felt that it was acceptable and
should not be corrected. Paul Lebovitz, a landscape architect,
testified that it is reasonable to expect some deviation
between the two surfaces when pavers are installed near a
concrete sidewalk but that pavers are accepted in the industry
as a safe walkway material. There was also evidence that the
size of the deviation was several inches greater at the time the
plaintiff was injured.

         The plaintiffs alleged that the City “had negligently
and carelessly left [the area of the new brick pavers] defective
and in disrepair” and that the City had created “a dangerous
condition for the plaintiff and any other person walking down
said sidewalk.
                              ----
         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 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. The Court of Appeals’ analysis in each
case reflects the conflicting views about duty and comparative
fault it has expressed in a series of its unpublished decisions.
                              ----
         A negligence claim requires proof of the following
elements: (1) a duty of care owned 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).
                              ----
            OPEN AND OBVIOUS DOCTRINE

        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).

      Because the rationale for the imposition of this duty
was partly the “owner’s superior knowledge of a perilous

                              -3-
condition on his premises,” a rule of no-liability also was
derived: that a premises owner has no liability for injuries
sustained from dangers that were “obvious, reasonably
apparent, or as well known to the invitee [or licensee} as to
the owner.” Kendall Oil Co. V. Payne, 293 S.W.2d 40, 42
(Tenn. App. 1955; see also McCormick v. Waters, 594
S.W.2d 385, 387 (Tenn. 1980).
                           ----
        Nearly every jurisdiction has also relied upon the
Restatement (Second) of Torts, § 343A, which states the rule
as follows:

       (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.
                             ----
                    TENNESSEE LAW

        We agree with the rationale of the majority of courts
which have limited or restricted the traditional “open and
obvious” rule in favor of the Restatement approach. We also
agree that attempting to analyze the duty issue simply by
labeling some conditions “open and obvious,” without
consideration of any surrounding circumstances, promotes
arbitrary and inconsistent results. 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 deem the Restatement approach to be the better
reasoned and more persuasive analysis.
                              ----
        We find that the City owned a duty of care under the
facts of this case. The deviation between the surface of the
brick pavers and concrete sidewalk created a foreseeable
probability of harm. Although the deviation was open and
noticeable to a degree, it is significant that the deviation was
in an area that had to be navigated in order to gain access to

                              -4-
             the City Hall building. It is also significant that the City had
             actual knowledge of the deviation when the pavers were
             installed and was aware of the availability of corrective
             action.” Despite such knowledge and the foreseeable risk of
             harm to persons who entered the City Hall building, the City
             took no steps to remove or warn against the danger. In our
             view, the risk of harm was unreasonable despite its open and
             obvious nature and the foreseeability and gravity of harm,
             therefore, outweighed the burden imposed in protecting
             against that harm. See McCall v. Wilder, 913 S.W.2d at 153.
                                           ----
                      The evidence in this record, reviewed with the
             presumption of correctness, supports the trial court’s finding
             that the sidewalk was defective, unsafe or dangerous, as well
             as the finding that the City had actual notice of the condition.
             Tenn. R. App. P. 13(d). Moreover, because we have held that
             comparative fault applies to conduct that is broader than
             negligence, such as strict liability in tort, see, e.g., Whitehead
             v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995). We
             observe that the trial court’s application of comparative fault
             principles under Tenn. Code Ann. § 29-20-203 was entirely
             consistent with McIntyre v. Balentine, supra. See Bradford v.
             City of Clarksville, 885 S.W.2d 78 (Tenn. App. 1994).
                                           ----
                      Summary judgment is appropriate only if the moving
             party shows that no genuine and material factual issue exists
             and he or she is entitled to relief as a matter of law. In ruling
             on such a motion, the court must consider the evidence in a
             light most favorable to the non-moving party and must allow
             all reasonable inferences in his or her favor. A summary
             judgment may be appropriate, therefore, “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 at
             214-215, Tenn. R. Civ. P. 56.
                                           ----
                                     CONCLUSION

                     We conclude that an open and obvious danger that
             causes an injury to a plaintiff does not automatically result in
             a finding of no duty and no landowner liability. As in any
             negligence action, a risk is unreasonable and gives rise to a
             duty if the foreseeability and gravity of harm posed by a
             defendant’s conduct, even if open and obvious, outweigh the
             burden upon the defendant to engage in conduct that would
             have prevented the harm.


      In the present case, the Trial Court made no finding of fact, but the motion of defendants

for summary judgment stated:

                    Comes now Defendant, JAH, Inc. (Hereinafter
             “JAH”), pursuant to Tennessee Rule of Civil Procedure 56,
             and moves this Court for an order granting summary
             judgment in its favor. JAH owed no duty to Plaintiff Keown
             because the hazard she complains of was open and obvious.

                                            -5-
                Further, the Court should find Keown’s negligence was fifty
                percent or more as a matter of law under the circumstances of
                this case.


        The affidavit of the hotel manager stated:

                        5.      I was in an office off the lobby area of the
                hotel when Doris Keown fell. I heard a crash and went
                quickly to the entrance. I saw her head resting against the
                door and she was lying on the sidewalk. The entrance where
                she fell is located on the east side of the hotel and there are
                benches adjacent to it.

                      6.      The sidewalk in front of the entrance is
                composed of a brown aggregate known as Futura Stone
                Outdoor Surface Covering.

                        7.       I have measured the height of the sidewalk in
                front of this particular entrance. It is approximately three and
                one-half inches high.


        Plaintiff relied upon a deposition of a consulting engineer that the paving of the parking

lot was a different color from that of the sidewalk and that the “step up” of approximate 3-1/2

inches was readily discernable at some distance, but that it was not discernable from a short

distance because the color of the vertical face of the sidewalk was the same as the horizontal face

of the sidewalk.



        Plaintiff’s other expert testified of various “standards” and “codes” which were not

shown to be locally applicable or applicable to the facts of the present case.



        Nevertheless, the decision of the Supreme Court in Coln v. City of Savannah, quoted

above, requires a re-evaluation of the summary judgment in the light of the law declared in Coln

and its applicability to the facts of the present case.



        Where reasonable minds might differ as to degree of fault, summary judgment on this

issue is not in order.




                                                -6-
       The summary judgment in favor of defendants is reversed, and the cause is remanded to

the Trial Court for further proceedings and final disposition. Costs of this appeal are assessed

against the defendants.



                             REVERSED AND REMANDED.



                                                     _________________________________
                                                     HENRY F. TODD, JUDGE




CONCUR:


____________________________
BEN H. CANTRELL, JUDGE


____________________________
WILLIAM B. CAIN, JUDGE




                                              -7-
