In any trip-and-fall, slip-and-fall, or other premises liability case, an important element of the case may involve the extent to which the hazard was “open and obvious.” A recent case originating in the Smoky Mountains highlights the extent to which a hazard’s open and obvious status does or does not undermine a plaintiff’s case. A hazard’s being open and obvious may raise the likelihood that an injured plaintiff was negligent in failing to avoid it, but it does not automatically immunize a defendant from liability. Even if your fall hazard was open and obvious, you may still, with the help of an experienced Tennessee premises liability attorney, be able to succeed and obtain a damages award in your case.
That recent Smoky Mountains case involved the parking area adjoining a vacation cabin in Pigeon Forge. The cabin’s parking area was in two adjacent sections. The left side was partially raised to maintain a flat surface. The right side sloped downward from the street, consistent with the hill upon which the cabin was situated. There was a railing around the left section, but it did not go all the way to the street, leaving an area of uneven surface not guarded by any railing.
One night while walking around her rental vehicle, the plaintiff accidentally stepped off that drop-off and fell, allegedly injuring her right arm in the process. The woman and her husband sued, arguing that the state of the split-level parking lot was a hazardous condition and that the owners and managers of the property were negligent in their maintenance of the parking area.
The trial judge did not agree and awarded summary judgment to the defendants. That judge determined that the hazard was open and obvious, that the plaintiff had knowledge of the hazard, and that the plaintiff was negligent in stepping off the edge of the drop-off. All of this led the trial judge to declare the plaintiff to be more than 50% at fault for her injuries, meaning that she could not proceed with her case.
The appeals court, however, reversed that ruling and revived the injured woman’s case for damages. That court explained that, in premises liability cases like this, the courts 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.” If the risk outweighs the burden, the owner or operator of the property must act to address the risk or be potentially liable for injuries that result. If the burden outweighs the risk, the owner has no duty to act.
The appeals court concluded that the defense had ironclad evidence that the hazard was open and obvious. The plaintiff had even forbidden the children in the family’s traveling party from playing in the parking area because she feared a child would fall off the drop-off.
A key thing to take away from this ruling is that, as the appeals court re-affirmed here, the mere fact that a hazard is open and obvious does not automatically mean that a defendant (or defendants) can never be liable. In fact, these defendants’ heavy reliance on the openness and obviousness of the parking lot drop-off worked against them, since those arguments offered an indication that the condition was hazardous and that the owners and managers were very clearly aware of that status.
Legitimate disputed issues of fact remained regarding whether the defendants could have, or should have, taken extra steps to protect guests on the property against the drop-off in the parking area. As a result, the defendants were not entitled to summary judgment, and the injured woman was entitled to proceed with her case.
Premises liability cases are difficult and even when a plaintiff is able to survive summary judgment the question remains whether a jury can be convinced that a property owner is liable. Many lay people think that a property owner should always be liable when you are injured on their property. But this is simply not true.
The premises liability attorneys at the Law Office of David S. Hagy, PSC have been helping injured people for many years as they seek appropriate recovery for the injuries they’ve suffered in serious trip-and-fall and slip-and-fall cases. We are ready to speak to you about your case and how we can assist you.
Reach us online or call (615) 515-7774.
More Blog Posts:
Tennessee Court Upholds $250K Damages Award for Grocery Store Customer Injured in Bathroom Fall, Nashville Trial Lawyer Blog, June 18, 2017
Lodge Visitor’s Fall Along Darkened Path Gives Rise to Premises Liability Suit Against Owner, Nashville Trial Lawyer Blog, May 6, 2014