       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                         FILED
                                          January 30, 1998
JAMES DILLARD and wife,        )
THELMA DILLARD,                )         Cecil W. Crowson
                               )        Appellate Court Clerk
      Plaintiffs/Appellants,   )
                               )   Davidson Circuit
VS.                            )   No. 95C-1880
                               )
THE VANDERBILT UNIVERSITY      )   Appeal No.
and CENTRAL PARKING SYSTEM,    )   01A01-9706-CV-00265
INC.,                          )
                               )
      Defendants/Appellees.    )



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

          THE HONORABLE THOMAS W. BROTHERS, JUDGE



For Plaintiffs/Appellants:              For Defendants/Appellees:

Anthony E. Hagan                        Joseph F. Welborn, III
Lebanon, Tennessee                      Bass, Berry & Sims
                                        Nashville, Tennessee




                   AFFIRMED AND REMANDED




                               WILLIAM C. KOCH, JR., JUDGE
                                 OPINION



      This appeal concerns a woman who was injured when she tripped over a
brightly painted concrete tire stop in a hospital parking garage. The woman and her
husband filed a negligence action in the Circuit Court for Davidson County against
the owner and operator of the parking garage. The trial court granted the defendants’
motion for summary judgment, and the plaintiffs have appealed. We affirm the
summary judgment because the defendants did not have a duty to protect patrons
from the tire stop.


                                          I.


      Thelma Dillard underwent a cornea transplant at Vanderbilt University Medical
Center in early 1994. Several months later, on June 29, 1994, she returned to the
hospital for a checkup with her opthamologist. Following her appointment, Ms.
Dillard and her husband returned to the parking garage adjacent to the hospital where
they had parked their car. As Ms. Dillard walked toward her car, she heard a loud
engine noise behind her and, fearing that she was in the path of an on-coming car,
stepped to her left without looking where she was going. Ms. Dillard tripped over a
brightly painted concrete tire stop approximately six inches high, five inches wide,
and six feet long. She injured her eye, arm, hip, pelvis, and head in her fall.


      The tire stop over which Ms. Dillard tripped was located on the inside of a
curve in the parking garage adjacent to where the vehicles drove and patrons walked.
It was out of the normal flow of vehicular and pedestrian traffic and was placed on
a diagonal at the end of a row of parking spaces, apparently to prevent cars from
parking near enough to the turn to block vehicular traffic. The tire stop was painted
bright yellow, and the floor area around it was also marked with bright yellow cross-
hatched lines.


      Ms. Dillard and her husband sued Vanderbilt University, the owner of the
garage, and Republic Parking System, Inc., the lessee of the garage, alleging that they
were negligent in placing the tire stop in a common walkway used by pedestrians.

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Both Vanderbilt and Republic Parking moved for summary judgment. The trial court
granted the motions, reasoning that Vanderbilt and Republic Parking did not have a
duty to warn pedestrians of the tire stop or to remove it because the tire stop was open
and obvious and because injuries such as those sustained by Ms. Dillard were not
reasonably foreseeable. The Dillards argue on appeal that granting the summary
judgment was improper because Ms. Dillard reacted to a sudden emergency and
because the risk of harm to pedestrians was foreseeable.


                                          II.


      The standards for reviewing summary judgments on appeal no longer require
lengthy elaboration. Because summary judgments do not enjoy a presumption of
correctness on appeal, see City of Tullahoma v. Bedford County, 938 S.W.2d 408, 412
(Tenn. 1997); McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894
(Tenn. 1996), appellate courts must make a fresh determination concerning whether
the requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown, 955
S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997).
Summary judgments are appropriate only when there are no genuine material disputes
regarding the relevant facts and when the moving party is entitled to a judgment as
a matter of law. See Tenn. R. Civ. P. 56.03; Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).


      Courts considering summary judgments must view the evidence in the light
most favorable to the nonmoving party and must also draw all reasonable factual
inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d 423,
426 (Tenn. 1997); Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996). Thus,
using standards akin to motions for directed verdict, the courts should grant a
summary judgment only when the undisputed facts reasonably support one
conclusion – that the moving party is entitled to a 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 at 26.


      To succeed with a negligence claim, the plaintiff must establish: (1) a duty
owed by the defendant to the plaintiff, (2) conduct by the defendant falling below the
applicable standard of care, (3) an injury or loss resulting from the defendant’s breach


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of that duty, (4) causation in fact, and (5) legal cause. See Haynes v. Hamilton
County, 883 S.W.2d 606, 611 (Tenn. 1994); Bradshaw v. Daniel, 854 S.W.2d 865,
869 (Tenn. 1993).      The nature and scope of a person’s duty in particular
circumstances is a question of law to be decided by the courts. See Blair v. Campbell,
924 S.W.2d 75, 78 (Tenn. 1996). Thus, when the material facts are undisputed, a
summary judgment is an appropriate vehicle for determining the existence of a
defendant’s duty. See Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn. 1992).


                                         III.


      Vanderbilt and Republic Parking owed a duty to Ms. Dillard to exercise
reasonable care under all the circumstances to protect her from unreasonable risks of
harm. See Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984); Johnson v. EMPE,
Inc., 837 S.W.2d 62, 65 (Tenn. Ct. App. 1992). That duty included maintaining the
premises in a reasonably safe condition, including removing or warning of any latent,
dangerous conditions that they were aware of or should have been aware of through
reasonable diligence. See Blair v. Campbell, 924 S.W.2d at 76; Smith v. Inman
Realty Co., 846 S.W.2d 819, 823 (Tenn. Ct. App. 1992). It did not include warning
her of dangers that were open and obvious. See Eaton v. McClain, 891 S.W.2d 587,
595 (Tenn. 1994).


      A condition is dangerous if it is reasonably foreseeable that the condition could
probably cause harm or injury. See McCall v. Wilder, 913 S.W.2d at 153; McClung
v. Delta Square Ltd. Partnership, 937 S.W.2d at 901. Foreseeability does not require
awareness of a precise type of injury, but rather an awareness of a general character
of injuries similar to those suffered by the plaintiff. See Dawson v. Sears, Roebuck
& Co., 217 Tenn. 72, 81, 394 S.W.2d 877, 881 (1965); Lancaster v. Montesi, 216
Tenn. 50, 56, 390 S.W.2d 217, 220 (1965). If injuries of the type that occurred could
not have been reasonably foreseen, a duty of care never arises. See McCall v. Wilder,
913 S.W.2d at 153; Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992).




      Under the undisputed facts of this case, Vanderbilt and Republic Parking did
not breach its duty to Ms. Dillard because the brightly painted tire stop was not a
latent dangerous condition. Tire stops such as the one involved in this case are


                                         -4-
common features of parking lots. Ms. Dillard concedes that she had been in the
garage before and that she was aware that these parking stops were in the garage. The
incident occurred around noon on a clear and sunny day, and Ms. Dillard’s vision was
unimpaired. The tire stop was clearly marked with yellow paint to contrast it from
its surroundings. Because noises from car engines are common in parking garages,
it would be unreasonable to require Vanderbilt and Republic Parking to have foreseen
that Ms. Dillard, upon hearing a car engine, would step suddenly to her left without
looking where she was going and stumble over a brightly painted tire stop that was
plainly visible to anyone looking where they were going.


                                        IV.


      We affirm the summary judgment and remand the case to the trial court for
whatever further proceedings may be required. We also tax the costs of this appeal,
jointly and severally, to James Dillard and Thelma Dillard for which execution, if
necessary, may issue.




                                              ______________________________
                                              WILLIAM C. KOCH, JR., JUDGE


CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
BEN H. CANTRELL, JUDGE




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