A recent opinion released by the Tennessee Court of Appeals addressed the theory of a property owner’s “constructive notice” of a dangerous condition, and the duty of property owners with respect to open and obvious conditions on their property.
In Beverly v. Hardee’s Food Sys., LLC, No. E2014-02155-COA-R3-CV (Tenn. Ct. App. June 15, 2015), a child had vomited on the floor of a Hardee’s restaurant near the entryway. The mother and child left without informing any Hardee’s employees of the incident. Approximately three minutes later, the plaintiff walked into the Hardee’s and slipped in the vomit, injuring his ankle. The plaintiff brought a personal injury suit against Hardee’s, based on the theory of negligence.
In order to recover on a premises liability case, the plaintiff must show the standard four elements of negligence: (1) duty, (2) breach, (3) causation, and (4) damages, as well as that either (a) the dangerous condition was caused by the owner, or (b) it was not caused by the owner, but the owner had actual notice of the dangerous condition. In Beverly, the plaintiff alleged that the employees had “constructive notice” of the spill. Constructive notice is imputed to a person when he could have discovered the fact by proper diligence and had a duty to do so. The trial court granted summary judgment in favor of the defendant, finding that the plaintiff could not establish that the defendant had notice of the spill prior to the fall.
In reversing the trial court, the court of appeals stated that in light of the nature of the business, the number of patrons, the nature of the harm, and other factors, a jury could find that within three minutes, the dangerous condition existed long enough that Hardee’s would have discovered it by exercising reasonable care.
The court of appeals also disagreed with the defendant’s argument that, since the spill was open and obvious, it had no duty to the plaintiff, and the plaintiff’s comparative negligence prevented him from prevailing. Generally, the duty of care owed by a property owner is to maintain the premises in a reasonably safe condition and warn against hidden dangers of which the owner is aware or should be aware through the exercise of reasonable diligence. However, in Beverly, the spill was open and obvious, not a hidden danger. Tennessee courts have found that the premises owner may still have a duty when the dangerous condition is open and obvious. In such cases, the situation is analyzed with regard to foreseeability and degree of harm, and whether any alternative conduct on the part of the owner was feasible to prevent the harm. In Beverly, the court found that the gravity of the potential harm outweighed the burden on the defendant of performing regular inspections of its restaurants. In addition, it found that a material fact remained as to whether the plaintiff should have seen the spill in time to avoid it.
The dedicated premises liability attorneys at Martin Heller Potempa & Sheppard understand that personal injury cases require careful attention to detail, preparation, and individualized attention. Whether it’s a slip and fall, motor vehicle collision, or medical malpractice, our Nashville attorneys are committed to helping accident victims. Contact our offices to discuss your case at (615) 800-7096 or online.