Nancy F. Brown v. Nancy Mercer-Defriese

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 30, 2015 Session

NANCY F. BROWN v. NANCY MERCER-DEFRIESE ET AL.

Appeal from the Circuit Court for Hamilton County

No. 12C171 W. Jeffrey Hollingsworth, Judge

No. E2015-00755-COA-R3-CV-FILED-JANUARY 25, 2016

Nancy F. Brown (Plaintiff) was walking through and contemplating the rental of a house

owned by Nancy Mercer-Defriese and Spencer Defriese (Defendants) when she tripped

over a three-inch threshold or step in the doorway between two rooms. She brought this

premises liability action, alleging the step was an unreasonably dangerous and defective

condition that caused her fall and resulting injuries. During the jury trial that followed,

Plaintiff and Defendants presented the testimony of experts. Plaintiff‟s expert opined that

the step was a “trip hazard.” One of the Defendants‟ experts agreed that the step was a

trip hazard, while the other stated that “all stairs are trip hazards.” Plaintiff and

Defendants each presented photographs of the doorway showing that the step and the

floors on either side of the three-inch change in elevation are in a very similar color. The

trial court granted Defendants‟ motion for a directed verdict at the conclusion of all of the

proof, finding that it was not reasonably foreseeable that Plaintiff would trip over the

step; that the step was open and obvious; and that Defendants did not owe Plaintiff a duty

to warn her of the condition of the step. We hold that the evidence before the trial court

and now before us establishes a genuine issue of material facts as to the Defendants‟

negligence. Accordingly, we vacate the trial court‟s judgment and remand for further

proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Vacated; Case Remanded for Further Proceedings

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Marvin B. Berke and Charles A. Flynn, Chattanooga, Tennessee, for the appellant, Nancy

F. Brown.

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W. Gerald Tidwell, W. Adam Izell, and Todd A. Davis, Chattanooga, Tennessee, for the

appellees, Nancy Mercer-Defriese and Spencer Defriese.

OPINION

I.

On April 4, 2011, Plaintiff was viewing Defendants‟ rental property in

Chattanooga in order to determine if she would be interested in moving in. In an interior

doorway, the difference in elevation from one floor to the floor in the adjoining room was

about three inches. Various witnesses at trial described this as a “threshold,” a “step,” or

a “stair.” Generally speaking, they did not agree on which of the terms is the most

correct or precise. The step was the threshold to the back part of the house, which,

according to Plaintiff, contained “a small room, a laundry room and a den that went

across the back of it.” In touring and examining the house, Plaintiff walked to the back

part of the house without incident, but did not see the step on the way back and tripped

over it. She suffered serious injuries including a broken hip and femur.

Plaintiff filed this lawsuit on January 19, 2012. A jury trial took place on

February 18 and 19, 2013. Plaintiff testified, and presented the testimony of professional

engineer Clarkson Lee Mason. The Defendants each briefly testified. They also

presented the testimony of Tim Dodd, a professional engineer, and Dallas Y. Rucker, Jr.,

the building official for the City of Chattanooga. Defendants moved for a directed

verdict at the close of all of the proof. The trial court granted the motion, finding and

holding, in part, in its judgment as follows:

The Defendants had owned the Castle Drive residence since

2003 and had rented it to several individuals and families.

Prior to the Plaintiff‟s fall, the Defendants were not aware of

anyone falling over the step in question in this case.

None of the previous tenants had complained to the

Defendants about the step or stated that they thought it was

dangerous.

The step was framed by a doorway, indicating the transition

from one room of the house to another.

On one side of the step were vinyl tile squares. The step itself

was constructed of pieces of wood running horizontally in the

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door frame. On the other side of the door, there was

hardwood flooring running vertically in relation to the door

frame. The contrast highlighted the transition.

The step complied with the City of Chattanooga‟s building

code applicable to one and two family residences. That code

was applicable to the Castle Drive residence.

On the date of the incident, Plaintiff had traversed the step

over which she fell at least once before she fell over it.

It was not reasonably foreseeable to the Defendants, under

these circumstances, that the Plaintiff would trip over the step

in question.

The condition of the step was open and obvious and should

have been seen by the Plaintiff.

The Defendants did not owe the Plaintiff a duty to warn her

of the condition of the step.

(Paragraph numbering in original omitted.) Plaintiff timely filed a notice of appeal.

II.

The sole issue presented is whether the trial court erred in directing a verdict for

Defendants.

III.

Our standard of review of a trial court‟s judgment as to a motion for directed

verdict has been stated by the Supreme Court as follows:

In reviewing the trial court‟s decision [on] a motion for a

directed verdict, an appellate court must take the strongest

legitimate view of the evidence in favor of the non-moving

party, construing all evidence in that party‟s favor and

disregarding all countervailing evidence. Gaston v. Tenn.

Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003).

A motion for a directed verdict should not be granted unless

reasonable minds could reach only one conclusion from the

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evidence. Id. The standard of review applicable to a motion

for a directed verdict does not permit an appellate court to

weigh the evidence. Cecil v. Hardin, 575 S.W.2d 268, 270

(Tenn. 1978). . . . Accordingly, if material evidence is in

dispute or doubt exists as to the conclusions to be drawn from

that evidence, the motion must be denied. Hurley v. Tenn.

Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn. Ct. App.

1995).

Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn. 2006); see also

Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47, 67 (Tenn. 2013). “Appellate courts

must conduct a de novo review of a trial court‟s ruling on a motion for a directed verdict,

applying the same standards that govern the trial court‟s determination.” Lake, 405

S.W.3d at 67.

IV.

Plaintiff‟s cause of action is based on her allegations of negligence. “In order to

establish a prima facie claim of negligence, basically defined as the failure to exercise

reasonable care, a plaintiff must establish the following essential elements: „(1) a duty of

care owed by defendant to plaintiff; (2) conduct below the applicable standard of care

that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5)

proximate, or legal, cause.‟ ” Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364

(Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). The

element of duty “is the legal obligation of a defendant to conform to a reasonable

person‟s standard of care in order to protect against unreasonable risks of harm.” Id.;

accord Cullum v. McCool, 432 S.W.3d 829, 833 (Tenn. 2013). Whether a defendant

owes a plaintiff a duty of care is a question of law to be determined by the Court. West v.

E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005); see Downs ex rel. Downs

v. Bush, 263 S.W.3d 812, 820 (Tenn. 2008) (“In the end, whether a defendant owed or

assumed a duty of care to a plaintiff is a question of law for the court to decide.”).

In analyzing the question of duty, “the court must balance the foreseeability and

gravity of the potential risk of harm to a plaintiff against the burden imposed on the

defendant in protecting against that harm.” Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn.

1998) (citing McClung v. Delta Square Ltd. Part., 937 S.W.2d 891, 902 (Tenn. 1996)).

In Rice, the Supreme Court observed that “[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

defendant‟s conduct outweigh the burden upon defendant to engage in alternative

conduct that would have prevented the harm.” Id. (quoting McCall, 913 S.W.2d at 153)

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(internal quotation marks omitted). The Rice Court provided the following guiding

principles in a negligence action based on premises liability:

In a premises liability case, an owner or occupier of premises

has a duty to exercise reasonable care with regard to social

guests or business invitees on the premises. The duty

includes the responsibility to remove or warn against latent or

hidden dangerous conditions on the premises of which one

was aware or should have been aware through the exercise of

reasonable diligence. See Blair v. Campbell, 924 S.W.2d 75,

76 (Tenn. 1996); Eaton v. McLain, 891 S.W.2d 587, 593–94

(Tenn. 1994).

* * *

The duty imposed on the premises owner or occupier,

however, does not include the responsibility to remove or

warn against “conditions from which no unreasonable risk

was to be anticipated, or from those which the occupier

neither knew about nor could have discovered with

reasonable care.” Prosser and Keeton on Torts, supra, § 61

at 426 [5th. ed. 1984]. In this regard, “the mere existence of a

defect or danger is generally insufficient to establish liability,

unless it is shown to be of such a character or of such duration

that the jury may reasonably conclude that due care would

have discovered it.” Id. at 426–27.

Rice, 979 S.W.2d at 308–09 (footnote omitted). Accordingly, we have observed that,

for an owner or occupier to be found negligent, there must be

some evidence that there was a dangerous or defective

condition on the premises. A jury cannot conclude that an

owner or occupier failed to exercise reasonable care to

prevent injury to persons on their property if there is no

evidence of a dangerous or defective condition. If no

dangerous or defective condition exists, an owner or occupier

cannot be held liable for failing to take action in order to

remedy the supposed condition.

Nee v. Big Creek Partners, 106 S.W.3d 650, 653–54 (Tenn. Ct. App. 2002). The

Supreme Court has further held that in a premises liability case,

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[i]n order for an owner or operator of premises to be held

liable for negligence in allowing a dangerous or defective

condition to exist on its premises, the plaintiff must prove, in

addition to the elements of negligence, that: 1) the condition

was caused or created by the owner, operator, or his agent, or

2) if the condition was created by someone other than the

owner, operator, or his agent, that the owner or operator had

actual or constructive notice that the condition existed prior to

the accident.

Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). The notice requirement

derives from the concept that “liability in premises liability cases stems from superior

knowledge of the condition of the premises.” Goumas v. Mayse, No. 2013-01555-COA-

R3-CV, 2014 WL 1713195, at *8 (Tenn. Ct. App. E.S., filed Apr. 29, 2014) (quoting

Blair, 130 S.W.3d at 764; internal quotation marks omitted). The notice requirement is

not at issue here, because Defendants do not dispute that they knew of the condition of

the step in their rental house. The fundamental issue, as we perceive it, is whether

Plaintiff presented sufficient evidence from which a juror could reasonably find that the

step was unreasonably dangerous or defective. Based on our review of the record, we

hold that Plaintiff did present such evidence.

Mr. Mason, Plaintiff‟s expert witness, testified that he had been a professional

engineer since 1973. Regarding the three-inch step in question, Mason testified as

follows:

Q: Why is the height of this important, the height of that?

A: Well, it‟s important because ‒ in my view and in some

parts of the building code it represents a tripping hazard. If

you don‟t know it‟s there and you‟re walking along or don‟t

see it or don‟t perceive it, you can trip over it and fall, simple

as that, and oftentimes people get injured.

* * *

Q: All right. You indicated tripping hazards. Will you

explain to the jury why this is a tripping hazard, this

particular step?

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A: Well, it‟s obviously a little bit higher ‒ excuse me, it‟s a

lot higher than a quarter of an inch high and it’s not going to

be as obvious to anybody walking around, especially

someone walking around in a new location that‟s not

particularly familiar with that particular residence and what

may be on the floor.

And three inches certainly exceeds building code levels,

building code heights for the thresholds. . . . [I]n the former

photograph you can see up there that those were all ‒ the

nosing and the height of the threshold, basically it’s all the

same color, it’s all the same brown, not terribly different from

the bar that’s in front of you there and shined and so you look

down at it and maybe you don‟t see it to be a tripping hazard.

You just don’t see anything unusual there.

And the code typically says you should be putting something

there to give warning to whomever would be there or might

be looking at it, that there is something different about this

thing, that you need to take notice that it‟s there. It‟s as

simple as that.

(Emphasis added.)

Mason testified that he looked at six or seven publications, including several

building codes, in preparing his opinion. He relied on, among other things, a publication

of the Consumer Product Safety Commission (CPSC) stating that “[f]or each year since

1974, the . . . CPSC has determined that stairs, ramps and landings are among the most

hazardous consumer products in the United States,” and classified a step with a riser less

than 6¼ inches high as “high risk.”

All three of the experts were in agreement that the single three-inch step was not

in violation of the International Residential Code, the building code applicable in

Chattanooga to detached single family and two-family dwellings and multiple single-

family dwellings not more than three stories high. They also agreed that the step would

violate the International Building Code, which is applicable to larger and commercial

buildings. Generally speaking, an allegedly dangerous or defective condition‟s

compliance with a regulatory code is relevant and often probative, but not conclusive, on

the question of the defendant‟s negligence. See City of Elizabethton v. Sluder, 534

S.W.2d 115, 117 (Tenn. 1976) (“compliance with the appropriate provisions of the

National Electrical Safety Code . . . is not conclusive on the question of petitioners‟

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negligence”); Downs, 263 S.W.3d at 821 n.11 (“While compliance with a statutory

standard is evidence of due care, it is not conclusive. Such a standard is no more than a

minimum, and it does not necessarily preclude a finding that the actor was negligent in

failing to take additional precautions”); Surles ex rel. Johnson v. Greyhound Lines, Inc.,

474 F.3d 288, 300 (6th Cir. 2007) (applying, under Tennessee law, the “generally

accepted rule that industry standards may be proven as some evidence of care but are not

conclusive on the matter”); Schleicher v. Founders Sec. Life Ins. Co., No. 01A01-9711-

CV-00649, 1999 WL 64233, at *6-7 (Tenn. Ct. App. W.S., filed Feb. 11, 1999)

(upholding jury verdict for plaintiff on common law negligence theory in premises

liability trip-and-fall case despite defendant‟s compliance with Southern Standard

Building Code).

Both of Defendants‟ expert witnesses emphasized that the step does not violate the

applicable building code. However, Mr. Rucker, the Chattanooga building official, stated

on cross-examination regarding the step: “[D]o I think that‟s a trip hazard? Yes, sir.”

Plaintiff testified that she did not see the step or know it was there before she

tripped on it. She stated, “I tripped over that little step, the little lip that was out there

because it really was not that noticeable,” and “it‟s really not that noticeable if you don‟t

know it‟s there and it‟s not that high or anything, when you just take a step and you‟re

down.” When the plaintiff was presented on cross-examination with pictures of the

doorway with the step, she testified:

Q: You would admit that when you go through there and go

down, which, again, down is this direction ‒

A: Uh-huh.

Q: ‒ you notice that there is a change in elevation, correct?

A: Not that much difference, no.

Q: Would you agree that there is a difference in the visual

appearance of the step from the hardwood floor to the step?

A: Yes, sir.

Q: I mean, if you look down, it‟s pretty obvious this is here,

isn‟t it?

A: It looked that way, yes, sir.

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Q: And is there not a change in the visual appearance from

here to here?

A: Not that much because it was late in the evening and it was

beginning to get dark.

(Emphasis added.)

The trial court found that the condition of the step was open and obvious. In Coln

v. City of Savannah, the Supreme Court examined and modified the traditional rule that

“a premises owner has no liability for injuries sustained from dangers that were obvious,

reasonably apparent, or as well known to the invitee [or licensee] as to the owner.” 966

S.W.2d 34, 40 (Tenn. 1998), overruled in part on other grounds by Cross v. City of

Memphis, 20 S.W.3d 642 (Tenn. 2000) (brackets in original; internal quotation marks

omitted). The High Court stated:

[T]he manifest trend of the courts in this country is away

from the traditional rule absolving, ipso facto, owners and

occupiers of land from liability for injuries resulting from

known or obvious conditions.

* * *

[T]he premises owner‟s duty exists if the harm can or should

be anticipated notwithstanding the known or obvious danger:

Such reason to expect harm to the visitor from

known or obvious dangers may arise, for

example, where the possessor has reason to

expect that the invitee‟s attention may be

distracted, so that he will not discover what is

obvious, or will forget what he has discovered,

or fail to protect himself against it. . . .

Restatement (Second) of Torts, § 343A (comment f). As the

Michigan Supreme Court has said: “If the risk of harm

remains unreasonable, despite its obviousness or despite

knowledge of it by the invitee, then the circumstances may be

such that the [defendant] is required to undertake reasonable

precautions [and] the issue then . . . is for the jury to decide.”

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Id. at 41 (internal quotation marks and citations omitted; brackets in original). The Coln

Court concluded:

Whether the danger was known and appreciated by the

plaintiff, whether the risk was obvious to a person exercising

reasonable perception, intelligence, and judgment, and

whether there was some other reason for the defendant to

foresee the harm, are all relevant considerations that provide

more balance and insight to the analysis than merely labeling

a particular risk “open and obvious.” In sum, the analysis

recognizes that a risk of harm may be foreseeable and

unreasonable, thereby imposing a duty on a defendant,

despite its potentially open and obvious nature.

* * *

That a danger to the plaintiff was “open or obvious” does not,

ipso facto, relieve a defendant of a duty of care. Instead, the

duty issue must be analyzed with regard to foreseeability and

gravity of harm, and the feasibility and availability of

alternative conduct that would have prevented the harm. . . .

[I]n short, if the foreseeability and gravity of harm posed

from a defendant‟s conduct, even if “open and obvious,”

outweighed the burden on the defendant to engage in

alternative conduct to avoid the harm, there is a duty to act

with reasonable care.

Id. at 42–43.

In this case, we have reviewed the photographs entered into evidence. Two of

them were taken by Defendants‟ attorney. Two others were included as part of the

inspection report of defense expert and professional engineer Dodd. The flooring of the

lower room is some kind of tile squares. The area with the three-inch “lip” or small step

is a threshold made of hardwood that appears to be around twelve to fifteen inches wide.

The flooring of the upper room consists of hardwood strips that run perpendicular to the

threshold and are a slightly darker shade of brown. In all of the photographs, the coloring

of both the tile floor and the threshold is a brown that is, arguably, nearly identical.

There is evidence in the record suggesting no clear visual contrast between the lower

floor and the threshold that is elevated three inches higher. Defense expert Rucker

recognized this fact in testifying that the step does not “have an obvious visual cue

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provided.” Plaintiff‟s expert Mason observed in his testimony that “basically it‟s all the

same color, it‟s all the same brown.” Moreover, the photographs are well lit; Plaintiff

testified that at the time she tripped “it was beginning to get dark,” leading to a rational

inference that the step may have been less visible under the darker conditions when she

fell. In short, from the proof presented, reasonable minds can differ on whether the

condition of the step was open and obvious. Similarly, a trier of fact could reach more

than one conclusion as to whether it was reasonably foreseeable under the circumstances

presented that a person unfamiliar with the house could trip over such a step.

Defendants rely upon Norfleet v. Pulte Homes Tennessee Limited Partnership,

No. M2011-01362-COA-R3-CV, 2011 WL 5446068 (Tenn. Ct. App. M.S., filed Nov. 9,

2011), in which this Court affirmed summary judgment in a trip-and-fall premises

liability action, stating as follows:

Although premises owners owe a duty to warn of “latent or

hidden dangers,” courts have repeatedly held that stairs and

steps in homes “are not inherently dangerous” in and of

themselves. As the Supreme Court explained in Eaton [v.

McClain, 891 S.W.2d 587 (Tenn. 1994)], stairs in a home are

not inherently dangerous because they are a common feature

of many homes. . . . Because steps and stairs in homes are

not inherently dangerous, our Supreme Court held that the

plaintiff in such cases must “submit legally sufficient

evidence as to the duty element” to establish the essential

element that a duty is owed. Eaton, 891 S.W.2d at 595.

2011 WL 5446068, at *3 (emphasis in original). The Norfleet Court, recognizing that

“[t]here are circumstances in which stairs or steps may constitute dangerous conditions

that give rise to a duty to warn,” id. at *6 (emphasis added), concluded:

Stairs and steps are a common feature in homes and are not

inherently dangerous in and of themselves; as a consequence,

the mere existence of the step from the foyer to the living

room does not constitute a dangerous condition. . . .

Accordingly, unless Ms. Norfleet satisfied her burden to

“submit legally sufficient evidence as to the duty element of

her claims of negligence” no duty existed. Eaton at 593. She

did not. Therefore, as a matter of law, Ms. Norfleet failed to

establish an essential element of her claim, that of a duty

owed to her by Defendant as it pertained to the step from the

foyer to the sunken living room.

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Norfleet, 2011 WL 5446068, at *3. Norfleet observes that, because steps are not

inherently dangerous, a plaintiff cannot establish a “defective or dangerous condition”

merely by alleging that he or she tripped or fell on a step or set of stairs, without further

proof. Summary judgment was affirmed in Norfleet because, as expressly stated by this

Court, plaintiff failed to provide proof establishing the essential element of duty. As we

have discussed, there is no such failure of proof here. We hold that the evidence

presented, including 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 which expert Mason classified as dangerous and “high-risk,” and the photographs

of the accident scene – establish that reasonable minds could differ on the question of

Defendants‟ negligence, and thus, a jury question is presented. We consequently vacate

the trial court‟s directed verdict.

V.

The trial court‟s judgment granting Defendants a directed verdict is vacated, and

this case is remanded for further proceedings. Costs on appeal are assessed to the

appellees, Nancy Mercer-Defriese and Spencer Defriese.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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