          IN THE COURT OF APPEALS OF TENNESSEE
                      AT NASHVILLE


JAMES E. SHERLOCK
                          )
                                   )                 FILED
    Plaintiff/Appellant,  )            Appeal No. September 29, 1999
                          )            01A01-9807-CV-00346
v.                        )                         Cecil Crowson, Jr.
                                                   Appellate Court Clerk
                          )            Rutherford County Circuit
KWIK SAK and              )            No. 36997
EMRO MARKETING COMPANY )
                          )
    Defendants/Appellees. )
                          )


             COURT OF APPEALS OF TENNESSEE


             APPEAL FROM THE CIRCUIT COURT
                 FOR RUTHERFORD COUNTY
              AT MURFREESBORO, TENNESSEE

      THE HONORABLE ROBERT E. CORLEW PRESIDING


T. TURNER SNODGRASS
95 WHITE BRIDE ROAD, SUITE 223
NASHVILLE, TENNESSEE 37205

ATTORNEY FOR PLAINTIFF/APPELLANT


M. CLARK SPODEN
BROWN, TODD & HEYBURN
2222 FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238

ATTORNEY FOR DEFENDANTS/APPELLEES


                  REVERSED AND REMANDED


                                 PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, P. J.
CAIN, J.
                       OPINION
         In this case, involving injuries sustained in a slip and fall accident

in a parking lot, the plaintiff, Mr. James E. Sherlock (hereinafter Plaintiff),

appeals the order of the trial court granting summary judgment to the

defendants, Kwik Sak and its parent company, Emro Marketing Company

(hereinafter Defendants).

                                       I.

         At around midnight on July 31, 1995, an employee of Kwik Sak,

a convenience store in Smyrna, Tennessee, noticed a puddle of oil in the

parking lot. She immediately spread a powdery substance called “oil-dry”

on the spot.       The spot, when covered with oil-dry, measured

approximately two feet in diameter. At approximately 10:00 a.m. the next

morning, Plaintiff walked out of the Kwik Sak, stepped off the sidewalk curb

on his way to his parked truck, slipped on the oil spot and sustained injury.

         Plaintiff sued Defendants, alleging negligent failure to completely

remove the oil or warn of the hazard. The trial court granted summary judgment

for Defendants based on a finding that Defendants did not owe Plaintiff a duty

of care under the standard announced in Coln v. City of Savannah, 966 S.W.2d

34 (Tenn.1998). The trial court also made an alternative finding that if

Defendants owed a duty of care, no breach occurred, because Defendants took

the remedial step of deploying the oil-dry.

                                      II.

         Summary judgment is appropriate only if the moving party establishes

that no genuine issues of material fact remain to be tried and, under the

undisputed facts, judgment is required as a matter of law. See Tenn.R.Civ.P. 56;

White v. Lawrence, 975 S.W.2d 525, 528 (Tenn. 1998)(citing Byrd v.

Hall, 847 S.W.2d 208, 210 (Tenn. 1993)). Courts reviewing motions for

                                      -2-
summary judgment must consider the evidence in the light most favorable

to the nonmovant, draw all reasonable inferences in favor of that party

and discard all countervailing evidence. See White, 975 S.W.2d at 529.

The motion must be denied unless the only conclusion that can

reasonably be drawn from the undisputed facts is that the movant is

entitled to summary judgment as a matter of law. See McCall v. Wilder,

913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23,

26 (Tenn. 1995). Because it is solely a legal question, our determination of

whether the requirements of Tenn.R.Civ.P. 56 have been satisfied is de novo, and

the trial court’s determination does not enjoy a presumption of correctness. See

Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Mason v. Seaton, 942

S.W.2d 470, 472 (Tenn.1997).

                                      III.

         To prevail, a party asserting a negligence claim must prove (1)

a duty of care owed by the defendant to the plaintiff, (2) conduct falling

below the standard of care that amounts to a breach of that duty, (3) an

injury or loss, (4) cause in fact, and (5) proximate cause. See McClung

v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996).

“Duty of care” refers to the defendant’s obligation to conform to the

reasonable person standard of care for the protection of the plaintiff from

unreasonable risks of harm. See McCall, 913 S.W.2d at 153. This duty

of care must be considered in relation to all the relevant circumstances:

         In determining the duty that exists, the foreseeability of
         harm and the gravity of harm must be balanced against
         the commensurate burden imposed on the business to
         protect against that harm. In cases in which there is a
         high degree of foreseeability of harm and the probable
         harm is great, the burden imposed upon defendant may
         be substantial. Alternatively, in cases in which a lesser

                                      -3-
           degree of foreseeability is present or the potential harm
           is slight, less onerous burdens may be imposed.

McClung, 937 S.W.2d at 902.

           The existence of a duty in a particular situation is a question of

law to be decided by the court. See Blair v. Campbell, 924 S.W.2d 75,

78 (Tenn.1996); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993).

           In the context of premises liability, the person in control of the

premises has the duty to exercise reasonable, ordinary care under the

circumstances to avoid injuring one lawfully on the premises.                            See

Johnson v. EMPE, Inc., 837 S.W.2d 62, 65 (Tenn. App.1992). This duty

requires proprietors to maintain their premises in a reasonably safe

condition. Because of their superior knowledge of the premises, owners

and possessors of property must exercise reasonable care to make the

premises safe. See McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980);

Jones v. Exxon Corp., 940 S.W.2d 69, 71 (Tenn. App. 1996).

           If the premises contain a latent or hidden defect or danger, the owner

has a duty to either remove that danger or warn customers about it, if the owner

knows, or through reasonable diligence should know, about the danger. See

Blair, 924 S.W.2d at 76; Eaton v. McLain, 891 S.W.2d 587, 593-594

(Tenn. 1994). If, on the other hand, the danger is not hidden, but is observable,

the owner may owe a duty to customers to take reasonable actions to prevent

harm to them if the owner can foresee or anticipate the harm and its potential

seriousness.1 In that situation, a duty on the part of the owner will arise if the



       1
           In the past, our law did not impose liability on proprietors for injuries caused by
defective or dangerous conditions that were "open and obvious.” See Eaton, 891 S.W.2d at
595; McCormick, 594 S.W.2d at 387. However in Coln v. City of Savannah, the court held that
a plaintiff’s recovery is not per se barred by a finding that a danger is open and obvious. See
Coln, 966 S.W.2d at 42.

                                             -4-
foreseeable probability and gravity of the harm posed by the owner’s conduct

outweigh the burden upon the owner to engage in alternative conduct that would

have prevented the harm. See Coln, 966 S.W.2d at 43.

            To prevail in the face of an open and obvious condition, a

plaintiff must prove that the injury received was reasonably foreseeable

and that the defendant could have taken an action which more probably

than not would have prevented the injury. See Doe v. Linder Constr. Co.,

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

                                             IV.

           At this point in our analysis, we must review the facts. Kwik Sak

employees observed the oil spot and spread the oil-dry the night before

Mr. Sherlock incurred his injuries as part of their duties related to closing

the store. Ten hours later, on a clear day, Mr. Sherlock fell on the spot

and sustained injury. The record contains no showing that during the

intervening time between spreading the oil-dry and Mr. Sherlock’s injury,

Defendants attempted to ascertain whether the oil-dry had worked or if

the spot was still slick. There is a lack of evidence that the employees

undertook additional remedial measures or attempted to warn patrons of

the hazard, or to inhibit foot traffic over or around the spot.                          The

employees opening the store the morning of Plaintiff’s injury did not check

the parking lot or the oil spot.2 Defendants’ operations manual, under

“General Safety Guidelines,” directs employees to “use oil-dry on oil or

fuel spills on the driveway, as soon as possible after they occur.” There

is no evidence regarding the proper application of oil-dry or whether it was

       2
         Store policy directs that the lot be inspected each morning and any spills cleaned up.
While not a basis for negligence per se principles, the policy is relevant when assessing
reasonable alternative measures which might have prevented the harm.

                                             -5-
properly applied here.

           At approximately 10:00 a.m. Plaintiff went into the convenience

store to make a purchase. When he left he used the telephone in front of

the store. In walking back to his truck, which was parked in the store’s

parking lot, he stepped off the curb. He then stepped onto a white

substance, his feet went out from under him, and he fell. Plaintiff attested

that he did not see “the oil spot” until he was in the process of stepping

onto it when it was too late to alter his course. He denied knowingly stepping

in the oil.     One of Defendants’s employees, who observed the spot

immediately after Plaintiff’s injury, stated that she did not see any oil

seeping through the oil-dry. She saw oil-dry, which she described as “a

light tan powdered substance that we keep on any oil spots that are on

the paved or concrete pad in front of our store to keep anyone from

slipping in oil.”

                                              V.

           It is undisputed that Defendants knew about the oil spot. Before

they applied the oil-dry, both the spot and its danger were, arguably, open

and obvious. The oil-dry, however, may have disguised the spot and/or

hidden its dangerous nature.

           Whether the oil spot at the time Mr. Sherlock encountered it was a

“latent, dangerous” condition or whether it was an “open and obvious” condition

whose danger Mr. Sherlock could apprehend,3 the basic test for determining


       3
          Although neither party disputes that Coln governs this case, the evidence does not
necessarily support the theory that the oil itself, which was the danger, was open and obvious.
In Coln, the court adopted the approach espoused by the Restatement (Second) of Torts, §
343A, which states 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

                                             -6-
whether Kwik Sak owed him a duty remains:

         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.

Coln, 966 S.W.2d at 46.

           It is foreseeable that a customer would walk through the parking lot

between his vehicle and the store. It is also foreseeable that a person walking

across oil spilled on the parking lot would slip, fall and sustain injuries. KwikSak

itself foresaw these possibilities. Therefore, to sustain the trial court’s summary

judgment of dismissal on the basis that KwikSak had no duty to Plaintiff, the

undisputed facts must demonstrate that any other actions by KwikSak which

might have prevented Plaintiff’s injuries were so burdensome as to outweigh the

risk that he would fall on the oil spot and sustain injury.

           Based on the record before us, we cannot find that alternative

measures to remove the oil or to remove the risk of harm by inhibiting

traffic over the spot or by warning of the danger were so burdensome as

to relieve KwikSak of its duty. We also cannot agree with the trial court’s

conclusion that KwikSak did not breach any duty of care which may have

existed because it deployed oil-dry. After reviewing the evidence both

supporting and opposing the summary judgment, we conclude that



       to them, unless the possessor should anticipate the harm despite such
       knowledge or obviousness.

Id. at 41. The court observed that

       the word “known” denotes “not only knowledge of the existence of the
       condition or activity itself, but also appreciation of the danger it involves,” and
       the word “obvious” means that both the condition and the risk are apparent to
       and would be recognized by a reasonable man, in the position of the visitor,
       exercising ordinary perception, intelligence, and judgment.

Id. (quoting Restatement (Second) of Torts, § 343A (comment b)).

                                              -7-
reasonable minds could differ as to whether KwikSak’s sole act of

applying oil-dry was consistent with its duty of care. Summary judgment

should not be granted if any reasonable doubt exists with regard to the

conclusions to be drawn from the undisputed facts. See Chrisman v. Hill Home

Dev., Inc. 978 S.W.2d 535, 538 (Tenn. 1998). Therefore, we reverse the trial

court’s grant of summary judgment of dismissal.

                                    VI.

         Accordingly,     the order granting summary judgment to

Defendants is reversed. Costs of this appeal are taxed to the appellee.

The case is remanded to the trial court for such further proceedings as

are necessary, consistent with this opinion.




                                          __________________________
                                          ___
                                          PATRICIA J. COTTRELL, JUDGE

CONCUR:


________________________________________
BEN H. CANTRELL, PRESIDING JUDGE (M.S)



________________________________________
WILLIAM B. CAIN, JUDGE




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