                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE
                                                                 FILED
                                                                 December 5, 1997
FREDRIKA A. STEINER,                        )
                                            )                   Cecil W. Crowson
        Plaintiff/Appellant,                )                  Appellate Court Clerk
                                            )       Appeal No.
                                            )       01-A-01-9705-CV-00233
VS.                                         )
                                            )       Davidson Circuit
                                            )       No. 94C-2468
THE PARMAN CORPORATION,                     )
                                            )
        Defendant/Appellee.                 )


                            CONCURRING OPINION

                I concur in the result reached in Judge Todd’s opinion. My only reason

for writing separately is to focus on what I perceive to be decisive in this case: the fact

that the defendant did not violate a duty to the plaintiff. In that way, I avoid the

nagging problem of the court apportioning fault in a case in which the plaintiff was

entitled to a jury trial.



                I start from the point that everybody owes to everybody else a duty of

due care under all the circumstances. Doe v. Linder Constr. Co., 845 S.W.2d 173

(Tenn. 1992). For a possessor of property, a duty to take action to prevent injury to

an invitee depends on

                “the nature and use of the land, the nature of the
                invitation, the nature of the relationship with the invitee,
                the opportunity of the possessor and the invitee to know
                and avoid existing or probable dangers and any and all
                other factors which would challenge the attention of the
                possessor and/or invitee to the probability of danger to the
                invitee . . . .”

Zang v. Leonard, 643 S.W.2d 657 at 663 (Tenn. App. 1982)(emphasis added).



                It naturally follows that a premises owner or operator has no duty to an

invitee whose knowledge of a dangerous condition is as great as the owner or

operator’s. As the Supreme Court said in Eaton v. McClain, 891 S.W.2d 587 (Tenn.
1994): “Although Tennessee law provides that premises owners owe invitees the duty

to warn of latent or hidden dangers, this duty does not arise if the danger is open and

obvious.” 891 S.W.2d at 595.



                Assuming that a one and one-half to two inch difference in elevation

between a concrete pad and the surrounding asphalt at a service station is

dangerous, the condition was as apparent to an invitee as it was to the owner.

Therefore, I do not think that the owner had a duty to warn the plaintiff to watch her

step.



                I am aware that the other sections of this court have held that the “open

and obvious” rule has gone the way of contributory negligence, remote contributory

negligence and implied assumption of the risk. See Broyles v. City of Knoxville, App.

No. 03A01-9505-CV-00166 (filed at Knoxville, Aug. 30, 1995); Cooperwood v. Kroger

Food Stores, App. No. 02A01-9308-CV-00182 (filed at Jackson, Dec. 30, 1994). But,

it seems to me that my colleagues have drawn that conclusion where the open and

obvious rule is asserted as an absolute bar to a claim against an otherwise negligent

defendant.1 In that context, I would agree that the negligence of the plaintiff and the

defendant should be compared, but there is nothing to compare where the defendant

did not violate a duty to the plaintiff.



                I am comfortable with what I have said so far. I become uncomfortable

when I am asked to apportion fault in a case where the plaintiff has a right to a jury

trial. Where there is some evidence on both sides of the issue, I am not so sure that

the court can say as a matter of law that the plaintiff’s fault exceeds that of the

defendant. In cases tried without a jury, of course, the court as the finder of fact must




        1
          The Suprem e Court granted permission to appeal in Cooperwood on the question of whether
the open and obvious rule is limited to determining whether a duty of care is owed or whether it also
applies in the assessm ent of relative degrees of fault. The appeal was dismissed, however, and the
Court did not reach that issue.

                                                -2-
make that determination. But the question remains one for the jury in cases where

either party exercises the right to demand a jury.



              I also admit to having some trouble with the question of whether it is for

the jury to determine if a condition is open and obvious. It may be. But in this case

I think reasonable minds could reach only one conclusion: that the plaintiff knew as

much about the hazard as the defendant did. She had walked over the place where

the concrete met the asphalt on her way to the store, and the difference in elevation

was plainly visible.



              Therefore, I concur in the majority opinion.




                                          _________________________________
                                          BEN H. CANTRELL, JUDGE




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