                IN THE COURT OF APPEALS OF TENNESSEE             FILED
                                  AT KNOXVILLE                        May 19, 1998

                                                                 Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk




REGINA M . OATES and                       ) C/A NO. 03A01-9712-CV-00545
husband, JAMES OATES,                      )
                                           ) SEVIER CIRCU IT
       Plaintiffs-Appellants,              )
                                           ) HON. RICHARD R. VANCE,
v.                                         ) JUDGE
                                           )
GLEN STON E LOD GE, IN C., d/b/a           )
DAYS INN-GLENSTONE LODGE,                  )
                                           ) VACATED AND
       Defendant-Appellee.                 ) REMANDED




JOHN K. HAR BER, PRYOR, FLY NN, PRIEST & HA RBER, Knoxville, for
Plaintiffs-Appellants.

R. KIM BUR NETT E, ARN ETT, D RAPE R & H AGO OD, K noxville, fo r Defen dant-
Appellee.




                                     O P I N IO N




                                                         Franks, J.


              In this action, the plaintiff brought suit for damages for personal injuries

sustained when she fell on defendant’s premises. The Trial Court, responding to a

Motion for Summary Judgment, dismissed the action on the basis that the situs of

plaintiff’s fall was an open and obvious condition, with no duty on the part of the
proprietor to warn invitees.

              On De cember 1 2, 1993, pla intiff was a guest of the Glenston e Lodge , in

Gatlinburg. Outside the front entrance to the hotel was a drive-through area for

loading and unloa ding passengers an d luggage. Def endant had con structed a short

concrete ramp in this area so that guests could roll luggage from the street level to the

sidewalk. The ramp, as well as the sidewalk was covered with all-weather carpeting.

              Plaintiff and some frien ds were e xiting the ho tel to a conv ention site

down the street from the front entrance. She was talking to one of her friends who

was wa lking beside her, and ac cording to p laintiff, this con versation m omentarily

distracted her, and as she stepped off the curb and into the drive-through area, her left

foot landed on the ramp, and she fell, causing personal injuries.

              On eva luating a m otion for su mmary judg ment, the T rial Court sh ould

consider “(1) whether a factual dispute exists; (2) whether the disputed fact is material

to the outcome of the case; and (3) whether the disputed fact creates a genuine issue

for a trial.” Byrd v. H all, 847 S.W.2d 208, 214 (Tenn. 1993). If there is no genuine

issue as to any material fact, the movant is entitled to judgment as a matter of law. Id.

at 215. No presum ption of correctness attaches to decisions granting sum mary

judgm ent bec ause th ey involv e only qu estions o f law. Hemb ree v. State, 925 S.W.2d

513 (T enn. 19 96); Te nn.R.A pp.P. 1 3(d).

              On appeal, we are required to review the evidence in the light most

favorable to the opponent of the motion and all legitimate conclusions of fact must be

drawn in favo r of the o ppone nt. Gray v. Amos, 869 S .W.2d 925 (T enn.A pp. 199 3).

              After the trial court granted summary judgment in this case, the

Tennessee Supreme Court released its opinion in Coln v. City of Savannah, 1998 WL

139096 (Tenn.). In Coln, the court held that the “open and obvious” rule is not


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necessarily a complete bar to recov ery in premises liability actions. Under Coln, the

open or o bvious na ture of a da nger “do es not, ipso f acto, relieve a defenda nt of a duty

of care.” Id. at *9. Rath er, “the duty issue must be an alyzed with re gard to

foreseeability and gravity of harm, and the feasibility and availability of alternative

conduct that would have prevented the harm.” Id.

               The ex istence o f a duty is a questio n of law . Blair v. Ca mpbell, 924

S.W.2d 75 (Tenn. 1996). Only after a duty has been established does comparative

fault be come part of t he ana lysis. Coln, 1998 WL 139096 at *7. Thu s, it is first

necessary to determine if the defendant owed any duty to plaintiff. If defendant owed

no duty, then summary judgment may be appropriate. Id., at *9.

               There is mater ial evide nce esta blishing a duty on defen dant in th is case.

Generally, premises owners owe invitees a duty of reasonable care under all of the

circum stances . Eaton v. M cLain, 891 S.W.2d 58 7, 593 (Tenn.199 4). Business own ers

genera lly have a d uty to mai ntain the ir prem ises in a r easona bly safe c onditio n. Id. As

part of this duty, the owners must either remove or warn against any dangerous

condition on the premises of which they are aware or should have been aware though

the exe rcise of reason able dilig ence. Id. 593-94. G enerally, “[a] risk is u nreasona ble

and gives rise to a duty to ac t with due c are if the for eseeable p robability and g ravity

of harm posed by defendant’s conduct outweigh the burden upon defendant to engage

in altern ative co nduct th at wou ld have preven ted the h arm.” McCall v. Wilder, 913

S.W.2d 150, 15 3 (Tenn. 1995).

               In Coln, the Supreme Court endorsed the principles contained in the

Restatement (Second) of Torts § 343(A). This section states:

               (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


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               should anticipate the harm despite such knowledge or
               obviousness.

               Thus, a premises owner may owe a duty to invitees if the owner can

anticipate ha rm, even if a hazard is o pen and o bvious. “S uch reaso n to expec t 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 disco ver wha t is obvious, o r will forget w hat he has d iscovered, o r fail to

protect h imself a gainst it.” Restate ment (S econd ) of To rts, § 343 (A) (co mmen t f).

These principles relate to the foreseeability question and are more meaningful than

simply lab eling a c onditio n as op en and obviou s. Coln, 1998 WL 139096 at *7.

               Although the evidence suggests that the ramp was an open and obvious

condition, summary judgment was inappropriate in this case. The defendant offered

the aff idavits o f an em ployee, P amela J oyce, and John H ungerf ord, a sa fety engin eer.

These af fidavits state th at the area w as well-lighte d and that th ere were n o defects in

the carpeting. Although these factors may favor the defendant in apportioning

negligenc e, they do not w arrant a find ing of no duty. The def endant’s ag ents

obviously kn ew abo ut the presen ce of the ra mp, and th e ramp w as in front o f the main

entrance to the hotel, where defendant invited and expected pedestrian traffic. Motor

vehicles drove through this area as well. Since the ramp was in a main area used for

loading and unloading, it is foreseeable that persons entering and leaving the hotel

could be distracted, either by vehicular or o ther pedestrian traffic. More over,

defendant could have placed a warning sign, railing or other device by the ramp at

little cost. Accordingly, we conclude tha t the Trial Court erred in granting s ummary

judgment and we remand for further proceedings consistent with this opinion.

               The costs of the app eal are assess ed to defe ndant.



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                              __________________________
                              Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.
.




___________________________
Charles D. Susano, Jr., J.




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