                    IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT NASHVILLE



LINDA BRAGG,               )
                           )
    Plaintiff/Appellee,    )              Davidson Law No. 92C-2533
                           )
vs.                        )
                           )              Appeal No. 01A01-9703-CV-00111
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON     )
COUNTY,                    )
                           )                        FILED
    Defendant/Appellant.   )
                                                   December 30, 1997

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk

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




                THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE




For the Defendant/Appellant:       For the Plaintiff/Appellee:

James L. Murphy, III               Nancy K. Corley
William Michael Safley             V. Michael Fox
Nashville, Tennessee               Kelley A. Sauls
                                   Nashville, Tennessee



                                   AFFIRMED



                                   HOLLY KIRBY LILLARD, J.


CONCUR:


ALAN E. HIGHERS, J.


DAVID R. FARMER, J.
                                             OPINION

       This is a slip and fall case under the Governmental Tort Liability Act. The heel of the

plaintiff’s shoe caught in a hole as she descended the stairs of a government building, resulting in

injuries. The trial court found the defendant to be 100% negligent and awarded damages to the

plaintiff. The defendant appeals, contending that the hole in the steps was not a dangerous and

defective condition or, in the alternative, that it was open and obvious. We affirm.

       In October 1991, Plaintiff/Appellee Linda Bragg (“Bragg”) left her office building in

downtown Nashville around two o’clock in the afternoon and drove to the Howard Office School

Building, (“Howard building”) to purchase car license tags. Bragg parked her car in the vicinity of

the Howard building and walked up the front sidewalk to its main entrance. In front of the building

are several steps leading up to three pairs of doors. At this time, there were only two handrails,

located over forty feet apart, along the length of the stairs. Bragg walked up the stairs and entered

the building. Once in the building, she found that she needed to return to her car in order to get more

money for the license tags. Bragg walked down the stairs and returned to her car. She then re-

entered the building by walking up the same stairs. After purchasing the license tags, Bragg exited

the building and began to descend the stairs. Not including the top landing, six steps lead up to the

building. As Bragg stepped off the first step, the heel of her shoe caught in a hole along the front

edge of the first step. This caused her to fall forward. Bragg sustained a variety of injuries to her

knee and back, with significant medical expenses and lost wages.

         Bragg then filed this action in the Circuit Court of Davidson County against the

Metropolitan Government of Nashville and Davidson County (“Metro”), pursuant to the Tennessee

Governmental Tort Liability Act, Tennessee Code Annotated §§ 29-20-204 and 205. She sought

damages for her injuries, including medical expenses and lost wages.

       At the bench trial, it was undisputed that the hole measured two inches by two and one-half

inches (2" x 2.5") and was located in a seam where two large marble sections were joined together

at the front of the step. The hole was directly in front of the middle set of doors. Sam McPherson,

Metro’s Director of General Services, testified at trial that this was a “high traffic area.” McPherson

stated that Metro’s records indicated that they had never received any complaint concerning the

hole, nor had they received any complaint about anyone falling on the steps as a result of a defect

in the steps. McPherson also stated that a Metro employee, Charlie Rhodes, was an “on-site

maintenance person” for the Howard building and had the authority to initiate repairs to the Howard
building.

       At trial, Metro contended that Bragg was in a hurry and could have used the handrails on

either side of the steps. Metro argued that the hole in the steps was not a “defective, unsafe, or

dangerous condition,” under Tennessee Code Annotated § 29-20-203, and would not give rise to a

duty by Metro to repair it. Metro also argued that the hole was “open and obvious,” and that Metro

therefore had no duty to repair it or warn those entering or exiting the building.

       After the trial, the trial court found the following:

       1) Metro was 100% negligent and the affirmative defense of comparative negligence
       does not apply;
       2) The steps to the Howard building were defective and dangerous and the dangers
       were not open and obvious to Bragg;
       3) Bragg proved that Metro had constructive notice of the defective and dangerous
       condition of the steps: the crack between the two segments of the concrete steps was
       unfilled, and the concrete had obviously deteriorated and disappeared over a long
       period of time; therefore, Metro should have had notice of the hole;

The trial court entered an order of judgment for Bragg in the amount of $130,000. Metro now

appeals this decision.

       On appeal, Metro argues that the trial court erred in finding that the hole in the steps which

caught Bragg’s heel constituted a dangerous and defective condition thereby imposing upon Metro

a duty to warn or repair. Metro also contends that the hole constituted an “open and obvious

condition,” which relieved Metro of the duty to repair or warn those entering or exiting the building.

       Our review of this case is de novo upon the record with a presumption of correctness of the

findings of fact by the trial court. Absent error of law, the trial court’s decision will be affirmed,

unless the evidence preponderates against the factual findings. Tenn. R. App. P. 13(d). No

presumption of correctness attaches to the trial court’s conclusions of law. See Carvell v. Bottoms,

900 S.W.2d 23, 26 (Tenn. 1995).

        In Tennessee, a municipality is liable for foreseeable injuries resulting from defects and

obstructions that cause injuries to pedestrians using a street or sidewalk in the usual and customary

manner. See City of Knoxville v. Baker, 150 S.W.2d 224, 228 (Tenn. App. 1940). The obstruction

or defect must be dangerous and the danger must be one that a reasonably prudent person would

have anticipated as a natural and probable result of allowing the obstruction or defect to exist.

Forrester v. City of Nashville, 179 Tenn. 682, 169 S.W.2d 860, 861 (Tenn.1943); Batts v. City of

Nashville, 22 Tenn. App. 418, 123 S.W.2d 1099, 1102-1103 (1938). A risk is foreseeable if a



                                                  2
reasonable person could foresee the probability of its occurrence. Doe v. Linder Construction Co.,

Inc., 845 S.W.2d 173, 178 (Tenn. 1992).

        In this case, the hole which caught Bragg’s heel was an abrupt break-off from the edge of the

step. “An abrupt break-off or drop in a depression is generally recognized as being more dangerous

than one which tapers off gradually.” Batts v. City of Nashville, 123 S.W.2d 1099, 1102 (Tenn.

App. 1938). To determine if a condition is dangerous or defective, the issue is whether a reasonably

prudent person traveling along a sidewalk or highway who unexpectedly encountered the hole would

suffer injuries. Batts at 1104; City of Memphis v. McCrady, 124 S.W.2d 248, 249 (Tenn. 1938).

        The hole in this case was located at the top of the steps, where it is more likely that serious

injury could result from a fall. In addition, the trial judge specifically found that women visiting

the Howard building frequently wore high heels, which could get stuck in a hole such as the one at

issue in this case.

        From reviewing the record, the evidence presented does not preponderate against the trial

court’s finding that the hole in the stairs constituted a dangerous and defective condition that could

have foreseeably resulted in an injury similar to that which Bragg received.

        Metro next contends that the trial court erred by not finding that the hole in the steps

constituted an “open and obvious” condition which would have relieved Metro of the duty to repair

or warn.

        Since the adoption of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.

1992), Tennessee courts have attempted to reconcile the open and obvious rule with the doctrine of

comparative fault. In Eaton v. McLain, 891 S.W.2d 587, 595 (Tenn. 1994), the Tennessee Supreme

Court stated: “although Tennessee law provides that premises owners owe invitees a duty to warn

of latent or hidden dangers, this duty does not arise if the danger is open and obvious.” Some

intermediate appellate decisions have stated that the adoption of comparative fault does not impact

the open and obvious rule. See Tracy v. Exxon Corp., No. 02A01-9512-CV-00277, 1996 WL

741876 (Tenn. App. Dec. 31, 1996); Valentine v. Weatherford, No. 02A01-9511-CV-00264, 1996

WL 741878 (Tenn. App. Dec. 31, 1996); Jones v. Exxon Corp., No. 02A01-9507-CV-00159, 1996




                                                  3
WL 482674 (Tenn. App. Aug. 27, 1996); Shope v. Radio Shack, No. 03A01-9508-CV-00288, 1995

WL 733885 (Tenn. App. Dec. 7, 1995).

       Other intermediate appellate decisions have held the open and obvious rule does not bar

recovery; rather the trier of fact compares the defendant’s negligence to the plaintiff’s negligence

in failing to exercise reasonable care regarding a danger that is “obvious, reasonably apparent, or as

well known to the injured party as to the owner. . . .” Coln v. City of Savannah, No. 02A01-9507-

CV-00152, 1996 WL 544652 at *3 (Tenn. App. Sept. 25, 1996), perm. to appeal granted, Feb. 3,

1997; See also Broyles v. City of Knoxville, No. 03A01-9505-CV-00166, 1995 WL 511904 (Tenn.

App. Aug. 30, 1995); Hazelwood v. Certainteed Corp., No. 02A01-9405-CV-00106, 1995 WL

676042 (Tenn. App. Nov. 14, 1995); Cooperwood v. Kroger Food Stores, No. 02A01-9308-CV-

00182, 1994 WL 725217 (Tenn. App. Dec. 30, 1994).

       In this case, regardless of the approach adopted with respect to the open and obvious rule,

the result is unaffected. Bragg testified that the hole was noticeable only by intentionally looking

at the exact place where the hole was located:

       Q:      [W]hen you went out the last time, there’s no question you were in
               the vicinity of where this particular hole was?
       A:      That’s correct.
       Q:      And if you were looking, there’s nothing--had you been looking at
               these steps, there’s nothing that would have obstructed your view
               from the top of the steps from seeing this hole, was there?
       A:      There’s nothing--You mean like--to block it?
       Q:      If you were looking you could have seen it.
       A:      If I would have been like inspecting it like that. But just the normal
               glance that you give when you walk, you wouldn’t see it. But if you
               really looked down to see the hole, once you knew it was there you
               would definitely see it.
       Q:      Well you alleged in your complaint, did you not, Ms. Bragg, that the
               hole upon proper inspection was easily noticed?
       A:      Upon inspection. When I looked back after I fell to see what had
               caused me to fall and my heel was in the hole, yes, you could see it
               then but you wouldn’t just see it normally walking. But if you looked
               for it, you definitely would see it.
                                               *****
        Q:     Ms. Bragg, these pictures which have been entered as Collective
               Exhibit 16, it’s my understanding this is the top layer.
        A:     Correct.
                                               *****
        Q:     So, if you were holding this like this, that would be as you were
               looking down the steps as you were headed down; is that correct?
        A:     That’s correct.
        Q:     And it’s your testimony that if you were standing there where
               whoever was standing there taking this picture, you couldn’t see that
               hole?




                                                  4
       A:      I couldn’t see it. It’s very, very evident now because the contrast, this
               white that’s filled in. If I had been looking down, if I would have
               been doing like this, I would have saw [sic] it.
       Q:      In other words, if you were paying attention to where you were
               walking you would have seen it?
       A:      No sir, that’s not correct. If I would have been looking down looking
               for a hole looking to fall, then I would have saw it. But just normal
               walking, just like you just walked over there, you do not look at every
               step in front of your feet. You don’t do that when you walk.
                                                   ****
       Q:      So, it’s your testimony then, Ms. Bragg, that you were not looking at
               the steps as you were descending the steps?
       A:      No, I was not looking down at the steps. I was looking in front of me
               to not walk into anybody. That’s more of what I was thinking to not
               do because people were coming up and down the steps.
                                                   ***
       Q:      Ms. Bragg, you don’t generally go down steps without looking to see
               if there’s something on the steps, do you?
       A:      In a public place I do because normally there’s nothing on the steps.

       From our review of the record, regardless of the approach adopted with respect to the open

and obvious rule, the evidence does not preponderate against the trial court’s conclusion that the hole

in the steps was not an “open and obvious condition,” and that Bragg did not fail to exercise

reasonable care for her own safety. The evidence preponderates in favor of the trial court’s

determination that Metro was one hundred percent negligent. Consequently, the judgment against

Metro must be affirmed.

       The decision of the trial court is affirmed. Costs on appeal are taxed to Appellant for which

execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.


CONCUR:



ALAN E. HIGHERS, J.




DAVID R. FARMER, J.




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