November 21, 2014 Session
Appeal from the Circuit Court for Davidson County No. 11C394 Thomas W. Brothers, Judge
Benjamin E. Winters, Nashville, Tennessee, for the appellant, Robert Boykin.
Lynn Vo Lawyer, Nashville, Tennessee, for the appellee, The George P. Morehead Living Trust.
W. Neal McBrayer, J., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ. joined.
W. NEAL McBRAYER, JUDGE
I. Factual and Procedural Background
On March 18, 2010, Robert Boykin was running errands in the Green Hills neighborhood of Nashville, Tennessee. After leaving Radio Shack, he walked to a nearby seamstress shop. The seamstress shop is located on property owned by The George P. Morehead Living Trust (the "Trust"). In order to walk from Radio Shack to the seamstress shop, Mr. Boykin had to cross a concrete parking bumper, a strip of dirt and grass, and step up approximately nine inches to reach a concrete parking landing at an adjoining retail center. The concrete parking landing has two parking places. On the other side of the concrete parking landing, the seamstress shop's parking lot is level with the landing, except for a three-foot section on the right end of the landing. In the three-foot section, the parking lot is four inches lower than the landing. On the right side of the concrete landing, there is a metal railing with metal bars from top to bottom. The railing separates the concrete landing from a ditch.
On his way to the seamstress shop from Radio Shack, Mr. Boykin navigated the concrete parking landing without incident. However, on his way back to the Radio Shack parking lot, Mr. Boykin tripped on the three-foot section that is four inches lower than the concrete parking landing. In the resulting fall, Mr. Boykin suffered injuries to his face and left hand. Mr. Boykin stated that he did not notice the difference in height prior to the fall because he was looking straight ahead, rather than down at where he was walking. He also stated that, after he fell, he looked back and noticed the height difference between the landing and the seamstress shop parking lot. Mr. Boykin admitted that, if he had looked down prior to crossing the concrete landing, he would have noticed the height difference. Prior to the incident in this case, no other accidents, incidents, or complaints regarding the concrete landing had been reported to the Trust.
On January 28, 2011, Mr. Boykin filed a complaint against the Trust. Mr. Boykin alleged that the Trust was negligent in maintaining and failing to correct the dangerous condition of the concrete landing, i.e., the four-inch height difference on the right side of the concrete landing. The Trust denied that the condition warranted correction. It also alleged that Mr. Boykin was the sole and proximate cause, or alternatively, a contributing cause of the accident for not watching where he was walking.
The Trust moved for summary judgment on November 13, 2013, claiming that it did not owe a duty to Mr. Boykin. After a hearing, the trial court granted summary judgment in favor of the Trust on February 24, 2014. The trial court found that Mr. Boykin failed to establish that a dangerous or defective condition existed and, therefore, the Trust had no duty to warn Mr. Boykin or to correct the condition. The court also found that the height difference between the landing and seamstress shop parking lot was open and obvious, and that reasonable minds could not disagree that Mr. Boykin was at least fifty percent at fault for not watching where he was walking. Mr. Boykin timely appealed.
On appeal, Mr. Boykin claims that the court erred by finding that: (1) he failed to establish that a dangerous and defective condition existed, and thus, that the Trust owed him no duty; and (2) he was at least fifty percent ...