FREDRIKA A. STEINER,                  )
                                      )    Davidson Circuit
      Plaintiff/Appellant,            )    No. 94C-2468
                                      )
VS.                                   )
                                      )
THE PARMAN CORPORATION,               )
                                      )    Appeal No.
      Defendant/Appellee.             )    01-A-01-9705-CV-00233


                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE
                                                      FILED
                                                       December 5, 1997
       APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE Cecil W. Crowson
                                           Appellate Court Clerk

                   HONORABLE WALTER C. KURTZ, JUDGE




Ben C. Fordham, #6408
HARWELL HOWARD HYNE GABBERT & MANNER, P.C.
1800 First American Center
315 Deaderick Street
Nashville, TN 37238
ATTORNEY FOR PLAINTIFF/APPELLANT


Glen L. Krause, #12691
BREWER, KRAUSE, BROOKS & MILLS
Suite 2600, The Tower
611 Commerce Street
Nashville, TN 37203
ATTORNEY FOR DEFENDANT/APPELLEE


                             AFFIRMED AND REMANDED.



                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
WALTER W. BUSSART, JUDGE

CONCUR IN SEPARATE IN OPINION
BEN H. CANTRELL, JUDGE
FREDRIKA A. STEINER,                           )
                                               )       Davidson Circuit
       Plaintiff/Appellant,                    )       No. 94C-2468
                                               )
VS.                                            )
                                               )
THE PARMAN CORPORATION,                        )
                                               )       Appeal No.
       Defendant/Appellee.                     )       01-A-01-9705-CV-00233



                                     OPINION

       The plaintiff, Fredrika A. Steiner, has appealed from the summary dismissal of her suit

against the defendant, The Parman Corporation, for damages for personal injury sustained in a

fall on the premises of defendant.



       Plaintiff’s injuries occurred on premises occupied, controlled and used by the defendant

as a combination convenience store and gasoline station. The purpose of plaintiff’s presence on

the premises was to use one of the public telephones on the premises. The first telephone she

approached was in use, so she went to and used a second telephone. During her walk from the

second telephone to her vehicle, her foot struck an irregularity in the pavement, and she fell. The

precise location of her fall and the location and nature of the alleged defect in the pavement are

not clearly shown by the testimony. Exhibits A, B & C to the record are pictures of the scene

and are made exhibits to this opinion.



       From said pictures of the scene, this Court has drawn an unscaled plan of the area which

is exhibit D to this opinion. The parking area and vehicle driveways are asphalt except for a

concrete area of driveway extending from the store out to the pump island.



       The testimony of plaintiff as to conditions at the place of her fall includes the following:

                       Q.      You believe that you parked in an area the day
               you arrived at the market which would have placed you to the
               rear of the red truck we see in this photograph Exhibit
               Number 3?

                       A.      Yes, sir.

                                             -2-
       Q.      And you would have walked towards the
market in the area between these two trucks, correct?

       A.      Right.

        Q.     All right. You would have walked on this
higher surface, this concrete surface, correct?

       A.      Uh-huh.
                          ----
        Q.     You stepped down onto the lower asphalt
surface that you were depicting in this photograph; is that
correct?

       A.      Yes.
                             ----
       Q.       And to go in the door to the market you would
have had to again stepped from the lower asphalt to the higher
concrete that we see here where the word “no parking” is
painted; is that correct?

       A.      Yes.
                            ----
       Q.      All right. Did you buy anything in the market?

       A.      No.
                           ----
       Q.      All right. You were looking for directions?

       A.      Yes.
                             ----
        Q.      You decided you weren’t going to wait in the
long line to get directions nor were you going to butt line and
get directions, so you went back outside to use the phone; is
that correct?

       A.      Yes.
                           ----
               I came out this door (indicating) and I came
around and I went to this phone (indicating). I didn’t go to
the front pay phone.

     Q.        You went to the phone that is shown in Exhibit
Number 1?
                           ----
       A.      To this phone (indicating).

       Q.      That is shown in Exhibit Number 1?
                             ----
               Is that correct?

       A.      Yes.
                           ----
      Q.     Okay. Now, you had talked to him, you hang
up. Did you make any other phone calls?



                             -3-
       A.      No.

       Q.      Then where did you go?

       A.      I was walking back to my car.

Q.Now, let’s use our Exhibit Numbers 1 and 3 here because
I want to follow your path of travel. You’re at the phone on
the far left of Exhibit Number 1. Your car is parked, we’ve
  decided, approximately behind what would have been the
      red truck we see on the left of Exhibit Number 3?

                           A.Correct.

 Q.Okay. So you have to leave the sidewalk at some point
  in travel to get from the phone to your car, do you not?

       A.      Yes, sir.
                            ----
              As I said, there were other people out there on
the sidewalk and I was walking directly back to my car to
avoid, you know, being in anyone’s way.

        Q.      Okay. So you stepped off the sidewalk in the
vicinity of the phone you were using?
                             ----
        When you’re heading back towards your car before
you stumble and fall, the area that in these photographs has no
parking painted on it would have been to your left?

       A.      Yes, sir.

        Q.     And you would have been traveling parallel to
that area?

       A.      Yes.

      Q.      All right. And you were going to cross this --
Mr. Hamilton called it a lip. I think he also called it a ridge.
What do you want to call that? I’ll call it whatever you want.

        A.     A step-down.

       Q.      Okay. You would have been approaching this
step-down at a 90-degree angle; is that correct?

        A.      No. At that point I would have been going
straight on.

        Q.      Okay.

        A.     Because when I hit my foot -- I stubbed my toe
straight on and that’s what cause me to fall.




                              -4-
       From the exhibits and foregoing testimony of plaintiff, it is clear that she fell at or

near a line where asphalt joins concrete and where the asphalt is measurably and visibly

lower than the concrete; that she had walked across the same line a few minutes prior to the

fall; and that where plaintiff thinks she fell, the asphalt was “about 1-1/2 to 2 inches lower

than the adjoining concrete.



       The judgment of the Trial Court states:

                      This is a premises liability case in which the plaintiff
              alleges that she tripped and fell in the parking lot of a gas
              station and convenience store owned by the defendant. The
              plaintiff tripped over a “step down” where there was a height
              variation where an asphalt section of the parking lot met the
              concrete surface.
                                            ----
                      The Court believes that the plaintiff proceeding in
              broad daylight should have seen the change in the level of
              the parking area surface and that the condition of the parking
              lot was open and obvious to anyone to such an extent that a
              reasonably prudent person exercising reasonable care for her
              own safety should have noticed and recognized the peril.

                      The motion for summary judgment is granted.


       With due respect to the use of the word “step-down” by the plaintiff and the Trial

Judge, the place where plaintiff “stubbed” her toe must have been a “step up” rather than

a “step-down.” As she described her movements, she negotiated a “step-up,” as she first

walked across the junction of the asphalt and concrete. On the occasion of her fall, the

“step-up” at which she “stubbed” her toe, was at the opposite edge of the concrete, as she

approached it from the telephone she used. The pictures exhibited to the record show that

plaintiff measured the “step-down” which she crossed without injury, and not the “step-

down” at which she “stubbed” her toe.



       On appeal, plaintiff presents a single issue, as follows:

                     1.      Whether given the totality of the circumstances
              faced by the Plaintiff there were genuine issues of material
              fact whether her conduct was reasonable thus precluding
              granting summary judgment for the Defendant.



                                            -5-
       In Eaton v. McLain, Tenn. 1994, 891 S.W.2d 587, the plaintiff-guest was injured

when she attempted to go to the bathroom in the dark without turning on an available light,

erroneously opened the door to a basement stair, stepped through the doorway and fell down

the stairs. The Supreme Court affirmed a directed verdict for the homeowners and said:

                       [1-3] The standards governing trial courts in ruling
               on motions for directed verdict or JNOV in negligence cases
               are well established. In ruling on the motion, the court must
               take the strongest legitimate view of the evidence in favor of
               the non-moving party. In other words, the court must
               remove any conflict in the evidence by construing it in the
               light most favorable to the non-movant and discarding all
               countervailing evidence. The court may grant the motion
               only if, after assessing the evidence according to the
               foregoing standards, it determines that reasonable minds
               could not differ as to the conclusions to be drawn from the
               evidence. Sauls v. Evans, 635 S.W.2d 377 (Tenn. 1982);
               Holmes v. Wilson, 551 S.W.2d 682 (Tenn. 1977). If there is
               any doubt as to the proper conclusions to be drawn from the
               evidence, the motion must be denied. Crosslin v. Alsup, 594
               S.W.2d 379 (Tenn. 1980).
                                            ----
                       [4] This Court’s adoption of the doctrine of
               comparative fault in McIntyre does not change these
               standards governing the trial court’s assessment of the
               evidence; nor does it change the established standard
               governing the trial court’s ultimate decision of whether to
               grant the motion. The trial court still must take the strongest
               legitimate view of the evidence in favor of the non-movant;
               and it must grant the motion only if reasonable minds could
               not differ as to the legal conclusions to be drawn from that
               evidence.

                       The recitation of these standards of review does not,
               however, provide a satisfactory answer to the issue before us
               because McIntyre has radically changed the question to be
               asked by the trial court on a motion for directed
               verdict/JNOV which alleges negligence on the part of the
               plaintiff. The question now is not whether the plaintiff was
               guilty of any negligence that proximately caused the
               resulting injuries. Instead, the question is: assuming that
               both plaintiff and defendant have been found guilty of
               negligent conduct that proximately caused the injuries, was
               the fault attributable to plaintiff equal to or greater than the
               fault attributable to the defendant.
                                            ----
                       [8]      In summary, the percentage of fault assigned
               to each party should be dependent upon all the circumstances
               of the case, including such factors as: (1) the relative
               closeness of the causal relationship between the conduct of
               the defendant and the injury to the plaintiff; (2) the
               reasonableness of the party’s conduct in confronting a risk,
               such as whether the party knew of the risk, or should have


                                            -6-
               known of it; (3) the extent to which the defendant failed to
               reasonably utilize an existing opportunity to avoid the injury
               to the plaintiff; (4) the existence of a sudden emergency
               requiring a hasty decision; (5) the significance of what the
               party was attempting to accomplish by the conduct, such as
               an attempt to save another’s life; and (6) the party’s
               particular capacities, such as age, maturity, training,
               education, and so forth.
                                            ----
                       We need not, however, decide the question of
               whether Ms. Eaton’s fault equaled or exceeded that of the
               McLains’ as a matter of law because we agree with the Court
               of Appeals that Ms. Eaton failed to submit legally sufficient
               evidence as to the duty element of her claims of negligence.



       Because of the last sentence of the preceding quotation, it is arguable that the

remainder of the quotation is dicta. However, said remainder is the last published

expression of the Supreme Court, and this Court will follow its guidelines.



       The liability of the owner or controller of a premises to a person injured thereon is

based upon superior knowledge of the owner or controller as to the condition of the

premises, but such owner or controller is not liable for injuries sustained from dangers that

are obvious, reasonably apparent or as well known to the invitee as to the owner or

controller. Illinois Cent. Ry. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213 (1937); Park

v. Sinclair Refining Co., 24 Tenn. App. 204, 142 S.W.2d 321 (1940). The invitee assumes

all normal or obvious risks attendant upon the use of the premises. Gargaro v. Kroger

Groc. & Baking Co., 22 Tenn. App. 70, 118 S.W.2d 561 (1938); 65 C.J.S. Negligence. §

50, p. 541.



       Plaintiff’s fall occurred in broad daylight at a point where the alleged dangerous

condition was clearly visible, and plaintiff had an opportunity to see the condition a few

minutes before her fall. Under these undisputed conditions, it is unnecessary to consider

whether the difference in level was sufficient to support an action against the defendant.




                                            -7-
       The judgment of the Trial Court is affirmed at the cost of appellant. The cause is

remanded to the Trial Court for any necessary further proceedings.



                         AFFIRMED AND REMANDED



                                    ___________________________________
                                    HENRY F. TODD
                                    PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


_______________________________
WALTER W. BUSSART, JUDGE



CONCUR IN SEPARATE OPINION
BEN H. CANTRELL, JUDGE




                                            -8-
