The team at Dodson Parker Behm & Capparella, PC shares updates and thoughts on developments in the law.

Fall at Convenience Center Not From “Open and Obvious” Cause; Plaintiff Entitled to Recover Damages

June 11, 2018

Getting a case reversed on appeal is difficult under any circumstances. Where negligence cases are concerned, it is particularly difficult.  Negligence cases in Tennessee are governed by the principle of “comparative fault.” This means that, where premises liability cases are concerned, in order for a plaintiff to recover damages a court must find the plaintiff’s own negligence, if any, to be less than 50% of the “proximate cause” of the injuries. Fault is a “question of fact,” and reviewing courts give great deference to the “fact-finder,” which is often a jury and sometimes the trial judge.  That deference to the fact-finder means that allocations of fault are rarely disturbed on appeal. The opinion from the Tennessee Court of Appeals in Osborne v. Metropolitan Gov’t of Nashville and Davidson Co. shows once more how difficult it is to change the outcome of a case once fault has been determined at the trial court level.

On February 28, 2015, Ronald Osborne was dropping off some garbage at the East Nashville Convenience Center, a facility operated by the local government.  The trash bin was elevated approximately five feet off the ground. When Mr. Osborne headed to the back of his truck to unload the garbage, he stepped into a 15-inch drainage cut that had been placed at the back of the concrete barrier surrounding the platform.  He fell and was hurt.

Mr. Osborne sued the city for negligence, alleging that the city had failed to maintain the property in a reasonably safe condition and had failed to comply with safety standards and local codes. The trial court concluded that the city was 80% at fault for Mr. Osborne’s injuries and that Mr. Osborne was 20% at fault for failing to notice the drainage cut. Metro appealed, arguing that the trial court erred in finding Mr. Osborne only 20% at fault.

Metro made a number of arguments that Mr. Osborne was at least 50% responsible for his fall. For instance, Metro argued that Mr. Osborne should have exercised heightened care for his own safety because of the nature of the facility, i.e,. a place where residents dispose of heavy appliances and other dangerous materials. The Court, however, noted that the drainage cut causing Mr. Osborne’s fall was not “open and obvious,” and no signs or other warnings were in place to warn patrons of the danger. Therefore, the Court found that “Metro was in the best position to remedy the danger,” and Mr. Osborne’s failure to notice it was not “the overriding cause of his injuries.” This, in addition to the fact that Mr. Osborne’s prior visits to the Center had led him to reasonably expect there were no holes, led the Court to find that the evidence did not preponderate against the trial court’s finding of 20% fault.

The judgment of the trial court was affirmed, and Metro was deemed liable for its part in Mr. Osborne’s injuries.

▼  More from the Blog  ▼

<h2 class="widget-title widgettitle">CONTRIBUTORS</h2><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] -->


<!-- [et_pb_line_break_holder] --><h4><strong>Tweets</strong> <span class="timeline-Header-byline" data-scribe="element:byline">by <span style="color: #449ccf;"><a class="customisable-highlight" style="color: #449ccf;" title="‎@dodsonparker on Twitter" href="">‎@dodsonparker</a></span></span></h4><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] -->[fts_twitter twitter_name=dodsonparker tweets_count=1 cover_photo=no stats_bar=no show_retweets=no show_replies=no]

Dodson Parker Behm and Capparella PC
1310 Sixth Avenue North
Nashville, TN 37208

Ph. 615-254-2291 | Directions

Terms of Use
Copyright Policy

The information found on this website is not intended as legal advice. You should not act on any information contained within the website without consulting legal counsel regarding your particular situation.

We’re proud to call Nashville’s Historic Germantown Neighborhood our home.
You’ll find us here 7:30 am – 5:00 pm weekdays.

Privacy Policy