Court of Appeals Opinion Gives Guidance on Slip and Fall Cases
The recent Tennessee Court of Appeals opinion in Brown v. Mercer-Defriese provides an excellent outline for proof to be presented in a premises liability action involving allegations of an unreasonably dangerous step.
Nancy Brown, was at a rental property owned by Nancy Mercer-Defriese and Spencer Defriese, viewing the property as a prospective tenant. She tripped over a three-inch “step” or “threshold,” and as a result suffered serious injuries including a broken hip and femur. She then filed a premises liability action, alleging that the step was an unreasonably dangerous and defective condition that caused her to fall.
A jury trial occurred. Plaintiff presented her own testimony and the testimony of a professional engineer, Clarkson Lee Mason. In addition to their own testimony, Defendants presented the testimony of Tim Dodd, a professional engineer, and Dallas Y. Rucker, the building official for the City of Chattanooga.
At the close of the proof, Defendants moved for a directed verdict, which the trial court granted. The trial court found that it was not reasonably foreseeable under the circumstances that Plaintiff would trip over the step and further found that the condition of the step was open and obvious and should have been seen by Plaintiff. Lastly, the trial court found that there was no duty to warn the Plaintiff of the condition of the step. Ms. Brown appealed.
The sole issue on appeal was whether the trial court erred in granting a directed verdict for the Defendants. The Court characterized the “fundamental” issue as whether Plaintiff presented sufficient evidence from which a juror could reasonably find that the step was unreasonably dangerous or defective. The Court held that Plaintiff did submit such evidence.
Specifically, the Court addressed the testimony of Plaintiff’s expert witness, a professional engineer, who testified that the step, both in his view and in parts of the building code, represented a tripping hazard. Plaintiff’s expert also testified that a step with a riser of less than 6¼ inches was considered high risk. One of Defendants’ witnesses, the Chattanooga building official, stated on cross-examination that the step was a trip hazard.
The Court also held that based upon the evidence presented reasonable minds could differ on whether the step was open and obvious. The Court looked to the photographs entered into evidence and held that in nearly all the photographs, the coloring of the tile floor and the threshold were nearly identical in color. Thus, the Court noted that there was “evidence in the record suggesting no clear visual contrast between the lower floor and the threshold that is elevated three inches higher.”
The Court distinguished its ruling from a factually similar Court of Appeals case, Norfleet v. Pulte Homes Tennessee L.P., No. M2011-01362-COA-R3-CV, 2011 WL 5446068 (Tenn. Ct. App. Nov. 9, 2011). In the Norfleet case, summary judgment was granted and affirmed on appeal based on the finding that plaintiff failed to provide proof establishing the essential element of duty. The Court held that in this case there was no such failure, specifically pointing to the testimony of experts on both sides that the step was a “trip hazard,” Plaintiff’s testimony, the unusually short size of the single step between two interior rooms, and photographs of the scene of the accident.