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§62.7 Proof of Notice of Dangerous Condition

The Case: Blair v. West Town Mall , 130 S.W.3d 761 (Tenn. 2004).

The Basic Facts: Plaintiff brought premises liability action against a mall for injuries sustained when she slipped on slick oil spots as she exited the mall alleging the defendant mall failed to inspect and maintain the pavement in its parking lots in a reasonably safe condition. Plaintiff alleged, alternatively, that the defendant knew or should have known of the oil spots because the defendant was aware that busses dropped off customers at the area in which she fell and should have removed them.

The Bottom Line:

  • "We hold that plaintiffs in premises liability cases in Tennessee may attempt to establish constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence." 130 S.W.3d at 762.
  • "Business proprietors are not insurers of their patrons' safety. However, they are required to use due care under all the circumstances. Martin v. Washmaster Auto Ctr., U.S.A, 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996). 'Liability in premises liability cases stems from superior knowledge of the condition of the premises.' McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). In 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. Martin v. Washmaster Auto Center, U.S.A, 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996) (citing Ogle v. Winn-Dixie Greenville, Inc., [919 S.W.2d 45, 47 (Tenn. Ct. App. 1995)]; Jones v. Zayre, Inc., [600 S.W.2d 730 ,732 (Tenn. Ct. App. 1980)]). We have previously held that constructive notice can be established by proof that the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition. Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)." Id. at 76.
  • "We take this opportunity to hold that in Tennessee, plaintiffs may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This approach focuses directly on a principle firmly established in our case law - that a premises owner's duty to remedy a condition, not directly created by the owner, is based on that owner's actual or constructive knowledge of the existence of the condition. It simply recognizes the logical conclusion that, when a dangerous condition occurs regularly, the premises owner is on constructive notice of the condition's existence. This places a duty on that owner to take reasonable steps to remedy this commonly occurring dangerous condition." Id. at 765-66.
  • "Allowing plaintiffs to prove constructive notice in this manner relieves plaintiffs of the difficult burden of showing the duration of a particular occurrence so long as plaintiffs can show that the dangerous condition was part of 'a pattern of conduct, a recurring incident, or a general or continuing condition' such that its presence was reasonably foreseeable to the premises owner.FN1
    FN1 We wish to note that constructive notice can still be shown by proving that the particular dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition."
    Id . at 766.
  • "Method of operation is not a useful title for this theory. The term method of operation suggests that the owner's method of operation, or way of doing business, is a part of the inquiry. But under the theory we now adopt, the owner's way of doing business is not determinative. The question is whether the condition occurs so often that the premises owner is put on constructive notice of its existence. The condition could be caused by the owner's method of operation, by a third party, or by natural forces. A premises owner is put on constructive notice of a dangerous condition that is 'a recurring incident, or a general or continuing condition' regardless of what caused the condition, and regardless of whatever method of operation the owner employs. Certainly there will be cases where the method of operation chosen by the owner creates a dangerous recurring condition. But there is no logical reason to impute constructive notice only in those cases where the condition can be linked to the owner's business activities, so long as a plaintiff can show that the condition was a 'recurring incident or general or continuing condition.'" Id .

Other Sources of Note: Tinsley v. Wal-Mart Stores, Inc ., 155 Fed. Appx. 196, 198 (6th Cir. 2005) (holding that under Blair, Plaintiff must have some evidence that Defendant had constructive notice of repeated spills in the specific location where Plaintiff's accident occurred, and that merely asserting the entire store's floor as the location will not suffice).

Recent Cases: 

Willis v. McDonald’s Restaurants of Tenn., Inc., No. E2015-00615-COA-R3-CV, 2015 WL 9426271 (Tenn. Ct. App. Dec. 23, 2015) (affirming summary judgment where plaintiff could not prove the cause of the fall or that defendant’s employees had notice of the allegedly dangerous condition prior to the fall); Beverly v. Hardee’s Food Systems, LLC, No. E2014-02155-COA-R3-CV, 2015 WL 3465759 (Tenn. Ct. App. June 15, 2015) (summary judgment reversed where vomit was on floor of fast food restaurant for three minutes and eleven seconds); Palmer v. Kees, No. E2014-00239-COA-R3-CV (Tenn. Ct. App. June 1, 2015) (affirming summary judgment for landlord where tenant offered no proof that landlord had notice of dangerous condition); Kee v. City of Jackson, No. W2013-02754-COA-R3-CV, 2015 WL 1510802 (Tenn. Ct. App. March 30, 2015) (city was liable under GTLA for injury on bridge where plaintiff showed that bridge was in dangerous condition and city had assigned employees to check its condition, but checks were random and sporadic); Barkley v. Shelby County Board of Educ., No. W2014-00417-COA-R3-CV, 2015 WL 1275415 (Tenn. Ct. App. March 18, 2015) (no liability in premises liability action under GTLA where plaintiff failed to prove actual or constructive notice of allegedly dangerous condition); King v. Foht, W2013-00518-COA-R3-CV, 2013 WL 5310436 (Tenn. Ct. App. Sept. 20, 2013) (overturning summary judgment for defendant based on property owner’s lack of knowledge/notice of dog’s presence or vicious propensities); Christian v. Ebenezer Homes of Tennessee, Inc., No. M2012-01986-COA-R3-CV, 2013 WL 3808210 (Tenn. Ct. App. July 17, 2013) (affirming summary judgment finding that door with no window for people to see through before opening it was not a dangerous condition); McCormick v. Warren Co. Board of Educ., No. M2011-02261-COA-R3-CV, 2013 WL 167764 (Tenn. Ct. App. Jan. 15, 2013) (affirming trial court holding that hole in grassy area that was moved one to three times per week was not a latent defect and that defendant had constructive notice of hole); Wright v. City of Lebanon, No. M2010-00207-COA-R3-CV, 2011 WL 721508 (Tenn. Ct. App. Mar. 1, 2011) (finding expert proof that a dangerous or defective condition developed over a long period of time can establish constructive notice despite evidence that the defendant frequently inspected the property  without  noting  any  problems  and  encountered  no  prior  accidents involving the property at issue); Gordon v. By-Lo Markets, Inc., No. E2009-02436-COA-R3-CV, 2010 WL 3895541 (Tenn. Ct. App. Oct. 5, 2010) (affirming summary judgment in premises liability case where plaintiff offered no evidence that stains on concrete had anything to do with fall or that defendant had any constructive notice of the alleged dangerous condition); Benn v. Public Building Authority of Knox County, No. E2009-01083-COA-R3-CV, 2010 WL 2593932 (Tenn. Ct. App. June 28, 2010) (discussing alternate grounds for constructive notice including (1) the defendant caused or created the situation that gave rise to the hazard, (2) the hazard existed for sufficient time that defendant should have been aware of it, and (3) the hazard was such a common occurrence at the location that the defendant should have been aware of it).

Brownlee v. Gastrointestinal Specialist , P.C., No. W2008-02340-COA-R3-CV, 2009 WL 2601323 (Tenn. Ct. App. Aug. 25, 2009) (reversing summary judgment finding the defendant failed to negate essential elements of existence of dangerous condition and actual or constructive knowledge of the defendant); Perkins v. Big Lots Stores, Inc., No. W2007-02809-COA-R3-CV, 2009 WL 1409706 (Tenn. Ct. App. May 20, 2009) (reversing jury verdict finding no material evidence to support it where defendant store's surveillance video showed another customer inadvertently furling over a corner of the mat twenty-one seconds before the plaintiff tripped and fell on the furled corner); Piana v. Old Town of Jackson, Inc., No. W2007-02832-COA-R3-CV, 2009 WL 302273 (Tenn. Ct. App. Feb. 6, 2009) (affirming summary judgment for one defendant finding that defendant did not have duty to plaintiff in premises liability case where defendant did not own property and finding defendant did not undertake a duty under a maintenance agreement, but finding co-defendant did have a duty to plaintiff arising out of management agreement for property and finding plaintiff presented sufficient evidence to submit to jury issues of whether there existed a dangerous condition and whether co-defendant had notice of the condition); White v. Bi-Lo, LLC, No. M2007-02698-COA-R3-CV, 2008 WL 4415781 (Tenn. Ct. App. Sept. 26, 2008) (affirming summary judgment finding no evidence that grocery store had actual or constructive notice of the dangerous condition); Lawrence v. HCA Health Services of Tennessee, Inc., No. M2007-01128-COA-R3-CV, 2008 WL 3451799 (Tenn. Ct. App. Aug. 12, 2008) (holding plaintiff presented no evidence upon which to conclude that defendant caused or created dangerous condition or that it had actual or constructive notice of a dangerous condition).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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