                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs, January 10, 2005

                          ISAAC HALL v. SHIRLEY A. HALL

                      Appeal from the Circuit Court for Bedford County
                               No. 8832    Lee Russell, Judge



                   No. M2003-02664-COA-R3-CV - Filed February 4, 2005


The plaintiff left the defendant’s residence through her kitchen which opened into a carport, three
steps lower. The defendant had left a pair of shoes on the steps which the plaintiff did not see owing
to darkness because he failed to turn on the light. The undisputed evidence reveals evidence of
negligence on the part of each party, but under McIntyre, the negligence of each should be
compared. Summary judgment for the defendant is reversed.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Remanded

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.,
P.J.M.S. and FRANK G. CLEMENT , JR., J., joined.

Brenda S. Bramlett, Shelbyville, Tennessee, for the plaintiff, Isaac Hall.

John W. Rodgers, Murfreesboro, Tennessee, for the defendant, Shirley A Hall.

                                             OPINION

        The defendant’s residence has a carport adjoining her kitchen. The floor of the carport is
lower than the kitchen floor, and requires three steps for access. Her nephew, the plaintiff, came to
visit and entered through the carport entrance as he had done many times before. The steps were
unobstructed.

      The defendant arrived about sunset. She also entered through the carport, and routinely
removed her tennis shoes and placed them on the “second bottom step.”

       Forty minutes or so later the plaintiff took his leave. He testified that “it was dark.” He was
unable to see his aunt’s tennis shoes and stumbled over them, sustaining a broken fibula in the
process. He admitted that he “voluntarily took a step into total darkness,” notwithstanding that the
area would be well-lit if he turned the lights on. He was familiar with the location of the switch and
simply failed to turn the lights on. The plaintiff admitted that he would have seen the shoes had he
turned the lighting on, and that it did not occur to him that his aunt had left her shoes on the steps.1

        The plaintiff filed this complaint alleging that upon the exercise of due care the defendant
knew or should have known that leaving her shoes on the steps would cause someone to fall. The
defendant responded that the shoes were in plain view, and that the negligence of the plaintiff was
equal to or greater than any negligence of the defendant. The material facts not being controverted,
the defendant moved for summary judgment which was granted. The plaintiff appeals. The sole
issue is the propriety of summary judgment. Review is de novo on the record with no presumption
of correctness.
                                               Analysis

         We begin with the cautionary statement that McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.
1992) wrought a decidedly fundamental charge in negligence law in this jurisdiction. No longer is
the proximate contributory negligence of the plaintiff a bar to any recovery; if the negligence of the
plaintiff is less than that of a tortfeasor, the plaintiff may recover damages reduced by a percentage
of the plaintiff’s own negligence. In Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994) the court again
expounded the doctrine of the duty reposed upon the owner of premises to use reasonable care under
the circumstances for a guest, including the removal of a latent dangerous condition, or warning of
its existence. The rationale of this principle is said to be apparent owing to the “owners superior
knowledge of a perilous condition on his premises.” A concomitant principle is also apparent; the
owner is not liable for injuries sustained from dangers that were obvious, open, or as well known,
to the guest as to the owner, see, Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), but this
rules does not automatically preclude recovery. Rather, the rule promulgated in Restatement of
Torts, section 343A, prevails in Tennessee: that the owner of premises is not liable to invitees for
physical harm caused to them by obvious dangers unless the owner should anticipate the harm
despite such obviousness.

       In Eaton v. McLain, supra, a guest awakened during the nighttime and fell while descending
a darkened stairway. The Court explained that “the issue is whether the plaintiff has made any
showing from which it can be said that the defendants reasonably know or should have known of the
probability of an occurrence such as the one which caused her injuries.” (Emphasis in original).
The Court emphasized that:

                 In order for the [defendants] to be charged with the duty to leave on
                 the light in the hall and to lock the basement door, they must have
                 been able to reasonably foresee that [the plaintiff] would get out of
                 bed in total darkness, walk across the hall, and step into the basement
                 stairwell, all without turning on any lighting whatsoever. While our
                 holding would likely be different if no lighting had been provided or


        1
            The record does not reveal whether the plaintiff noticed his aunt’s unshod feet, or whether he knew she
routinely removed her shoes before entering her house.

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               if it had been inoperative, [the plaintiff’s] failure to turn on any lights,
               coupled with her willingness to open the door and step into an
               unfamiliar area is such as radical departure from reasonable conduct
               under the circumstances that the [defendants] could not have
               reasonably foreseen that conduct and its consequences.

        A negligence claim requires proof of the following element: (1) a duty of care owed by the
defendant to the plaintiff; (2) conduct of the defendant falling below the standard of care amounting
to a breach of that duty; (3) an injury or loss; (4) causation in fact; (5) proximate or legal cause.
Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993). In any negligence case, the analysis must begin
with a determination of duty in accordance with the foreseeability and gravity of harm, and the
feasibility and availability of alternatives; if a duty is imposed, then the surrounding circumstances
are analyzed under the principles of comparative fault. Coln, supra. A risk of harm may be
foreseeable and unreasonable thereby imposing a duty on a defendant despite its potentially open and
obvious nature, which does not, ipso facto, relieve the defendant of a duty of care. As stated in Coln,
supra, if the foreseeability of harm posed by a defendant’s conduct, even if open and obvious,
outweighed the defendant’s burden to engage in alternative conduct to avoid the harm, there is a duty
to act with reasonable care and comparative fault is implicated.

        In premises liability cases, application of duty principles resulted in imposing a duty on an
owner or possessor of premises to exercise reasonable care under the circumstances to a guest or
business invitee. The duty includes the responsibility of either removing or warning against any
latent or hidden condition on the premises of which one was aware or should have been aware
through the exercise of reasonable diligence. Smith v. Inman Realty Co., 846 S.W.2d 819 (Tenn.
Ct. App. 1992).

         The appellee relies heavily on Eaton, supra, as did the trial judge. Coln, supra, essentially
restricts the open and obvious principle to the enumerated circumstances in Eaton, while making
it clear that summary judgment remains viable to evaluate cases at the preliminary stage of
proceeding. In Eaton, as stated, the plaintiff failed to turn on available lights before opening a door
she was unfamiliar with and stepped into an unfamiliar area. This was found to be unreasonable
conduct which barred a recovery. In the case at Bar, the plaintiff was familiar with the door and the
steps, and failed to turn on the lights even through he was familiar with the location of the switch.
Since the steps were unobstructed when he entered the house two hours or so earlier, he had no
apparent reason to consider that the defendant had obstructed them, although that fact would have
been revealed had he turned the lights on.

       We conclude that McIntyre requires a jury determination of the comparative negligence of
each of these parties. The judgment is reversed and the case is remanded for trial. Costs are
assessed to the appellee.

                                                         ___________________________________
                                                         WILLIAM H. INMAN, SENIOR JUDGE


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