ELIZABETH F. HOLLAND
K-VA-T FOOD STORES, INC., ET. AL.
Session November 25, 2014.
Appeal from the Circuit Court for Sevier County No. 20100308II Hon. Richard R. Vance, Judge.
R. Stephen Merritt, Maryville, Tennessee, for the appellant, Elizabeth F. Holland.
Mary Jo Mann, Knoxville, Tennessee, for the appellee, Carl Ed Newman, in his capacity as Trustee of the Carl Newman Family Trust and as Trustee of the Newman Family Trust.
John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, and Thomas R. Frierson, II, JJ., joined.
JOHN W. McCLARTY, JUDGE.
On April 28, 2009, Elizabeth F. Holland ("Plaintiff") and her husband drove to a K-VA-T Food Store, doing business as a Food City Store ("Food City"), to purchase groceries. This particular Food City shared a parking lot with a branch of the Sevier County Bank ("the Bank"). The two properties were divided by a continuous curb, which was an unmarked, raised area of the asphalt pavement that was unkept and had moss and weeds growing around it. The curb operated to impede cars parked at Food City from traveling into the drive- through area of the Bank. Plaintiff and her husband parked at the edge of the Food City parking lot and directly in front of the drive-through area of the Bank. Once parked, their car was perpendicular to the curb. After entering Food City and shopping, Plaintiff and her husband returned to their car to load the groceries they had purchased. While stepping backward, Plaintiff opened the passenger side door of the car, tripped on the curb, and fell to the ground. Plaintiff sustained injuries as a result of the fall.
On April 28, 2010, Plaintiff filed a negligence suit against Food City, the Bank, and the owner of the two properties, Carl Newman ("Defendant"), in his capacity as Trustee of the Carl Newman Family Trust and as Trustee of the Newman Family Trust. Plaintiff alleged that the unmarked curb was an unreasonably dangerous condition. She claimed that Defendant knew of the condition but was negligent by failing to either correct the condition or warn her of the danger. She asserted that she "did not have any knowledge of the condition and could not have reasonably been expected to discover it." She sought compensatory damages in the amount of $350, 000.
Defendant denied wrongdoing and later filed a motion for summary judgment in which he argued that he owed no duty to Plaintiff when there was no defective or unreasonably dangerous condition. He also claimed that Plaintiff was more than 50 percent at fault for her injuries. In support of the motion, Defendant attached deposition testimony and a statement of undisputed material facts. The deposition testimony and statement provided, in pertinent part, that Plaintiff's husband noticed the curb when he parked the car, that Plaintiff was aware that she had a responsibility to look for obvious obstructions, that the curb was visible, and that she would have seen the curb if she would have looked for it. Plaintiff responded to the statement by asserting, in pertinent part, that she never testified that she was not looking where she was walking and that she would have seen the curb only if it had been marked, if it had been pointed out to her, or if she were looking for it.
After considering the arguments of counsel, the trial court granted the motion for summary judgment and dismissed the complaint against Defendant. Citing Young v. First Bank of Tennessee, No. E2010-01434-COA-R3-CV, 2011 WL 332700 (Tenn. Ct. App. Jan. 28, 2011), the court found that Defendant had no duty to warn Plaintiff of the curb when the curb at issue was open and obvious and when it was not reasonably foreseeable that Plaintiff would walk backward without looking and trip and fall over the curb. The court further found that if the case were presented to a jury, the jury could not reasonably conclude that Plaintiff was less than 50 percent at fault for her injuries. This timely appeal followed.
We restate the issue raised on appeal by Plaintiff as follows:
Whether the trial court erred in granting the motion for summary judgment and dismissing Plaintiff's complaint ...