holding that the lessee did not owe a duty with respect to the parking lot “when the lessee did not exercise control over the parking lot and the lease with the shopping center lessor provided that the parking lot remained in the control of the lessor.”
How later courts described this case
- holding that the lessee did not owe a duty with respect to the parking lot “when the lessee did not exercise control over the parking lot and the lease with the shopping center lessor provided that the parking lot remained in the control of the lessor.”
- holding that although the landlord has the duty to keep common areas safe and in good repair, a tenant also has a “duty to see that the leased premises and its approach is in a reasonably safe condition” (emphasis added)
- finding -9- plaintiff at least fifty percent at fault where she fell in a puddle of oil in a parking lot, a puddle that the plaintiff described as “clearly distinguishable from the surface of the lot”
- holding that shopping center tenant had no duty to patron who slipped on oil in parking lot where parking lot served multiple tenants and landlord was responsible for its maintenance
Written by the judges who cited it.
The opinion
SHARON G. LEE,
concurring in part and dissenting in part.
I concur with the trial court’s grant of summary judgment as to the Defendant Houchens. However, I respectfully dissent from the majority’s conclusion that the Plaintiff was, as a matter of law, 50% or more at fault when she slipped and fell in oil in the parking lot owned by the Defendant Eatherly. After a review of the *149 facts in the light most favorable to Ms. Berry, the nonmoving party, as is required when considering a trial court’s grant of summary judgment, Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997), I conclude that there are facts and inferences reasonably drawn from the facts which would permit reasonable minds to differ as to whether Ms. Berry was less than 50 % at fault. Accordingly, I do not agree that the Defendant Eatherly is entitled to summary judgment. The undisputed facts are that Ms. Berry drove into the parking lot, parked her car, got out of her car, walked three or four feet, and then slipped and fell in a puddle of oil in the parking lot. Ms. Berry was looking straight ahead as she walked and did not see the oil. She did not see the oil when she drove into the parking spot or before she fell. She could not see the oil after she had gone into the store and was looking out onto the parking lot. She testified that the oil was invisible to her. I cannot conclude that because she had oil in her hair and down her backside after she fell that the oil puddle was so large that she should have seen it. I cannot agree that her recovery should be barred because she was looking straight ahead and not down at her feet as she was walking. We know there was oil in the parking lot. But how large was the puddle of oil? How visible was it? Should Ms. Berry have seen it? These are material questions of fact to be answered by a jury — not the trial court or the appellate court. Issues of comparison and allocation of fault are properly left to the jury. Prince v. St. Thomas Hosp., 945 S.W.2d 731, 735 (Tenn.Ct.App.1996). Reasonable minds can differ as to the reasonableness of Ms. Berry’s conduct as she left her vehicle and attempted to enter the store.
In my judgment, there are genuine issues of material fact in this case which preclude a finding, as a matter of law, that Ms. Berry was guilty of 50% fault or more. I would vacate the trial court’s order and remand for a trial on the merits as to the Defendant Eatherly.