By: Cameron Watson
Tina Lynn Davis Newell v. First State Bank, Inc., et al., No. W2017-01209-COA-R3-CV
(Tenn. Ct. App. Dec. 7, 2017)
Spicer Rudstrom attorneys Christopher M. Myatt and Cameron M. Watson recently secured dismissal for their client, Elite Beach Tanning Co. in a suit where a customer sued for personal injuries after slipping and falling on “slush” in the parking lot. The trial court dismissed the case as a matter of law because (1) the snow and ice created an open and obvious condition that Plaintiff should have avoided; and (2) the parking lot was not owned, leased, or controlled by the tanning salon. As pictured below, the slush was open and obvious.
In Tennessee, a business owner or operator is not an absolute insurer of a customer’s safety. They do, however, have a duty to warn against dangerous conditions of which they knew or should have known. Liability is based, in part, on a business owner or operator’s superior knowledge of the conditions of the property. Customers also have a duty not to proceed into a known danger, such as snow and ice, which are universally recognized as creating slippery conditions.
After the trial court dismissed Plaintiff’s case, she appealed. The appellate court reviewed the extensive evidence developed in the case including testimony that the parking lot was “covered in snow.” After parking in front of the tanning salon, Plaintiff herself warned her daughter and her friend “to be careful,” and used her car to steady herself. She then went inside and tanned. After she finished, she slipped and fell in the parking lot while traversing the same route back to her car. The trial court adopted our argument that the tanning salon had no duty to clear the slush in the parking area, and it had no duty to warn about the slush as it was readily apparent. Further, the trial court agreed that Plaintiff could not take the incongruent positions that she can recognize the risk when warning her child, but simultaneously ignore the risk in order to make a claim against the tanning salon.
The primary argument, however, concerned the location of the fall. Importantly, the lease made clear that the common areas, which included the parking areas, curbs, and sidewalks, remain within the “Landlord’s sole management and control.” The trial court and appellate court found that the lease agreement was dispositive since it would not be “reasonable to require a single lessee to clean the entire parking lot of a multiple-store shopping center.” Plaintiff took an unorthodox approach by heavily relying on Mississippi case law in her brief requesting the trial court to find that Elite Beach exercised control over the parking area by directing their employees where to park. In the end, our attorneys successfully argued that Elite Beach “was not shown to have exercised control over the parking lot, rather by the lease agreement the lot remained in control of the lessor.”
Ultimately, the Tennessee Court of Appeals affirmed the trial court’s dismissal of Plaintiffs’ claims only a few weeks after Cameron Watson appeared for oral argument.
Cameron Watson focuses on Business and Corporate, Government Liability Defense, Employment, Products Liability, Insurance, Litigation and General Liability, Premises Liability, and Trademark and Intellectual Property law in the Memphis office.
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