The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
______________________________________________________________________________
BETTY SCHOPFER and Shelby Circuit No. 2997
LOUIS H. SCHOPFER, C.A. No. 02A01-9707-CV-00138
Plaintiffs,
Hon. Karen R. Williams, Judge
v.
THE KROGER COMPANY,
WARNER-LAMBERT COMPANY,
FILED
and THE DEMO COMPANY,
May 18, 1998
Defendants.
Cecil Crowson, Jr.
Appellate C ourt Clerk
OSCAR C. CARR, III, and CHARLES WESLEY FOWLER, Glankler Brown, Memphis,
Attorneys for Plaintiffs.
BETTY ANN MILLIGAN and GAYLE B. LAKEY, Spicer, Flynn and Rudstrom, Memphis,
Attorneys for Defendant The Kroger Company.
RICHARD R. ROBERTS, Memphis, Attorney for Defendant Warner-Lambert.
JERRY O. POTTER and KAREN R. CICALA, The Hardison Law Firm, Memphis, Attorneys
for Defendant The Demo Company.
REVERSED AND REMANDED
Opinion filed:
______________________________________________________________________________
MEMORANDUM OPINION1
TOMLIN, Sr. J.
Betty Schopfer (“plaintiff”)2 and her husband, Louis Schopfer, filed suit in the Circuit
Court of Shelby County against Kroger, Inc. (“Kroger”), Warner-Lambert Co. (“Warner-
Lambert”) and The Demo Company (“Demo”) seeking damages resulting from injuries she
sustained in a Kroger store when a display rack collapsed, striking her and causing her to fall to
the floor. Each defendant filed a motion for summary judgment, asserting that there were no
genuine issues of material fact existing. The motions were denied by Judge James Swearengen,
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Rule 10(b) (Court of Appeals). MEMORANDUM OPINION. The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the action of the
trial court by memorandum opinion when a formal opinion would have no precedential value. When
a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,”
shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated
case.
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As the sole recipient of the personal injuries, we identify wife only as plaintiff.
sitting by interchange for Judge James Tharpe, who was ill. Following Judge Tharpe’s death, all
defendants renewed their motions. Judge Karen Williams, the new judge of Division 3, granted
summary judgment for each defendant. On appeal, plaintiff has raised three issues for our
consideration. In addition, Kroger has presented two issues and Warner-Lambert three issues
for our consideration. Demo raised no additional issues. In the opinion of this court, our
consideration of this case can be reduced to a single issue that will dispose of the matters raised
by all the parties--whether or not the trial court was in error in granting summary judgment for
each of the respective defendants. For the reasons hereinafter set forth, we are of the opinion that
the trial court erred in granting summary judgment and remand this case to the trial court for
further consideration.
In April 1993, plaintiff was shopping at defendant’s store in Memphis. In order to
increase sales of particular products, Kroger participated in various marketing programs, one of
which allowed certain companies who supplied it with merchandise to set up display racks of its
merchandise within the store. These display racks were usually temporary and contained the
products of the manufacturer being featured. In this regard, during the early part of the week
prior to plaintiff’s visit and unfortunate accident, Kroger had permitted Warner-Lambert, one of
its suppliers to assemble and stock a display rack in one of its aisles, by and through an employee
of Warner-Lambert, for the purpose of promoting the sale of Schick razors and razor blades. It
was this display of Warner-Lambert with which plaintiff collided and which precipitated the fall
causing her injuries.
Yet another means utilized by Kroger to increase its sales was to permit employees of
marketing and advertising companies to distribute coupons inside its store for various products
sold by it. On this particular day, with the permission of Kroger, an employee of Demo was
working in the store for the purpose of giving away coupons and/or merchandise to Kroger’s
customers. The Demo employee was a petite, elderly lady named Mary Gibson (“Mrs. Gibson”).
Before her fall, plaintiff had encountered Mrs. Gibson in Kroger’s store twice, receiving a
coupon from her on both occasions. Just prior to the third encounter, plaintiff was walking down
one of the aisles, approaching a cross-aisle, en route to her grocery cart on the other side of the
cross-aisle, when Mrs. Gibson suddenly turned into the aisle and walked very quickly toward
plaintiff, at the same time, extending her hand to give her a product. Plaintiff stepped to her left
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to avoid physical contact with Mrs. Gibson. Upon so doing, plaintiff came into contact with
Warner-Lambert’s display rack, causing the rack to fall, striking the inside of plaintiff’s left leg,
thereby causing her to fall to the floor. Plaintiff stated that she had observed the display rack that
day prior to the fall, but she was of the opinion that it was attached to a frozen food case at the
end of the aisle. As a result of the fall plaintiff sustained a broken hip and other injuries,
resulting in two hip replacement surgeries. Plaintiff also claimed some permanent disability.
The complaint alleged that the display rack created a dangerous circumstance, which was
exaggerated by Demo’s employee quickly approaching plaintiff, causing her to step to her left,
bringing her in contact with the rack. Plaintiff’s complaint asserted that both Kroger and
Warner-Lambert failed to meet their legal duty to plaintiff in that the premises, including the
rack, were unsafe for its patrons. Plaintiff also asserted that defendants Kroger and Warner-
Lambert failed to properly supervise their employees in the design, erection, inspection and
maintenance of the display rack in question. Plaintiff further alleged that Demo’s employee was
negligent in the manner in which she approached plaintiff and further that Demo failed to
adequately train and supervise its employees.
All three defendants filed separate motions for summary judgment on the grounds that
there were no genuine issues as to any material facts upon which liability of that particular
defendant could be predicated.
The relevant portion of Judge William’s order granting summary judgment for each of
the defendants reads as follows:
This matter came on to be heard upon the Renewed Motions for Summary
Judgment filed by all defendants, depositions filed in the cause, affidavits filed by
all parties, statements of attorneys for all parties and from the entire record, all of
which it appears to the Court that pursuant to case of Shope v. Radio Shack, 1995
Tenn. App. LEXIS 792, is controlling and that the open and obvious doctrine
continues to exist despite the adoption of comparative fault. The Court further
finds that the plaintiff, Bettye Schopfer, admitted in her deposition that she had
seen the display rack twice before the accident. Furthermore, the Court finds that
the plaintiff, Bettye Schopfer, had been in the retail business and was aware of
display racks and that the aisle in question was wide in this particular store.
Additionally, the Court finds that there was no one else in the aisle at the time of
the accident except the plaintiff and the employee of Demo Company. Finally,
the Court finds that the exception to the open and obvious rule for momentary
forgetfulness or shock or panic as described in the case of Bailes v. Public
Housing Authority, 1996 Tenn. App. LEXIS 815 is not applicable as the plaintiff
did not present proof to bring herself within either of said exceptions. The Court
is of the opinion that the defendants’ Renewed Motions for Summary Judgment
are well taken and the case should be dismissed with prejudice.
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In Shope, plaintiff was injured when he fell over a display counter in a Radio Shack store
in Cleveland, whose store manager was a friend of his and at whose store plaintiff was a regular
customer. After checking out, plaintiff turned to leave when he tripped over the display, located
some four and a half feet from the checkout counter. The display was a foot and a half square
and two feet tall. The trial court directed a verdict in favor of defendants.
On appeal, the Eastern Section in Shope considered how the “open and obvious” rule in
this state was affected, if any, by the Supreme Court’s decisions in McIntyre v. Balentine, 833
S.W.2d 52 (Tenn. 1992), and Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994).
The “open and obvious” rule as it was applied prior to these two Supreme Court
decisions, generally stated, was as follows:
The liability of the proprietor of a place of business to which the public is invited
is based upon the duty to keep his premises in a reasonably safe condition for all
persons who are lawfully on his premises and in the exercise of due care for their
own safety. Liability is sustained on the ground of the owner’s superior
knowledge of a perilous condition on his premises and he is not liable for injuries
sustained from dangers that are obvious, reasonably apparent or as well known to
the invitee as to the owner. The invitee assumes all normal or obvious risks
attendant on the use of the premises.
Shope, 1995 WL 733885, at *1.
The Shope court concluded:
It is our considered opinion that the open and obvious rule has not been affected
by McIntyre or Perez except in those unusual circumstances where negligence on
the part of the defendant exists concurrently with the negligence of the plaintiff or,
stated otherwise, under circumstances where a duty is owed by the defendant to
the plaintiff. In such cases, a comparison of negligence is required.
....
In our final analysis, we hold that the open and obvious rule is unaffected by
McIntyre and Perez except under circumstances where a plaintiff was not barred
by the rule under the law as it existed before the decisions in McIntyre and Perez.
In those rare instances, the negligence of the respective parties or tortfeasors must
be compared.
Id. at *3.
In the case under consideration the trial judge concluded that the “open and obvious” rule
barred plaintiff’s recovery against each defendant. From reading the trial court’s opinion, it
seems apparent that the trial judge stated her reasons for granting summary judgment for all
defendants with specificity. Usually we are not so advised as to why the trial court grants
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summary judgment. Ordinarily the trial court concludes in it order that “after reviewing the
record, this court is of the opinion that there are no genuine issues of material fact in this case,”
and proceeds to grant summary judgment for the moving side. Here the trial court held that the
“open and obvious” rule, as it existed before McIntyre and Perez, was the law, and proceeded to
grant summary judgment for the defendants on this ground.
With the release of the Supreme Court’s opinion in the combined cases of Coln v. City of
Savannah and Vancleave v. Markowski, et ux, No. 02A01-9507-CV-00152, 1998 WL 139096
(Tenn. Mar. 30, 1998), the case relied upon by the trial court is no longer the law in this state
regarding the “open and obvious” rule. At the outset of its opinion, the Supreme Court stated in
Coln:
After reviewing the two cases before us, the extensive literature, our Tennessee
cases on the subject, and cases from other jurisdictions, we conclude that an open
and obvious danger does not automatically result in a finding of no duty and
therefore no landowner liability. As in any negligence action, we think a risk is
unreasonable and gives rise to a duty to act with due care if the foreseeable
probability and gravity of harm posed by a defendant’s conduct outweigh the
burden upon the defendant to engage in alternative conduct that would prevent the
harm.
Coln, at *1 (footnote omitted).
This court is a court of appellate jurisdiction. Under the circumstances, we think it
inappropriate for us to proceed in light of the law as it now stands to attempt to analyze in the
required fashion whether or not there exists genuine issues of material fact as to each of these
three defendants. To the contrary, we think it more appropriate to give the trial court an
opportunity as the court of original jurisdiction to consider these summary judgment motions in
the light of Coln and Vancleave. We also observe that in our opinion the “open and obvious”
rule would not be applicable to the defendant Demo, so that the summary judgment as to Demo
should be decided under summary judgment principles.
Accordingly, the judgment of the trial court granting summary judgment as to all three
defendants is reversed. This cause is remanded to the Circuit Court of Shelby County for a
rehearing on all three motions for summary judgment, in accordance with the rules of practice
and case law of this state, not inconsistent with the provisions of this opinion. Costs in this cause
on appeal are taxed one-third to
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each of the three defendants, for which execution may issue if necessary.
________________________________________
TOMLIN, S.J.
________________________________________
FARMER, J. (CONCURS)
________________________________________
LILLARD, J. (CONCURS)
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