Transcript A Quick Guide To Tennessee Premise Litigation


The following actions shall be commenced within one year after the
cause of actions accrued:
• Actions for libel, for injuries to the person, false imprisonment, malicious
prosecution, breach of marriage promise. T.C.A. § 28-3-104


If the person entitled to commence an action is, at the time the cause of action
accrued, either within the age of eighteen (18) years, or of unsound mind,
such person, or such person's representatives and privies, as the case may be,
may commence the action, after the removal of such disability, within the time
of limitation for the particular cause of action, unless it exceeds three (3)
years, and in that case within three (3) years from the removal of such
disability. T. C. A. § 28-1-106
A counterclaim or third party complaint or cross-claim is not barred by the
applicable statute of limitations or any statutory limitation of time, however
characterized, if it was not barred at the time the claims asserted in the
complaint were interposed. T. C. A. § 28-1-114
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Summary judgment should be granted only when, with the facts
viewed in favor of the nonmoving party, it is clear that no genuine
issue of material fact exists.
On a motion for summary judgment in Tennessee, to shift the
burden of production the moving party must either affirmatively
negate an essential element of the nonmoving party's claim or
show that the nonmoving party cannot establish an essential
element of the claim at trial, and the burden of production cannot
be shifted by simply asserting that the opposing party will not be
able to produce sufficient evidence at trial, i.e., challenging the
nonmoving party to put up or shut up. Rules Civ.Proc., Rule 56.04.
Hannan v. Alltel Publishing Co. 270 S.W.3d 1(Tenn. 2008).
We therefore hold that so long as a plaintiff's
negligence remains less than the defendant's
negligence the plaintiff may recover; in such a
case, plaintiff's damages are to be reduced in
proportion to the percentage of the total
negligence attributable to the plaintiff.
However, we feel the “49 percent rule”
ameliorates the harshness of the common law
rule while remaining compatible with a faultbased tort system.

In Eaton v. McLain, 891 S.W.2d 587 (Tenn.1995), the Tennessee Supreme
Court addressed the circumstances in which a trial or appellate court
could hold, as a matter of law, that the plaintiff's degree of fault was equal
to or greater than the defendant's. The Court held that, under the system
of comparative fault, the percentage of fault assigned to each party:
should be dependent upon all the circumstances of the case, including
such factors as:
(1) the relative closeness of the causal relationship between the
conduct of the defendant and the injury to the plaintiff;
(2) the reasonableness of the party's conduct in confronting a risk,
such as whether the party knew of the risk, or should have known of it;
(3) the extent to which the defendant failed to reasonably use an
existing opportunity to avoid injury to the plaintiff;
(4) the existence of a sudden emergency requiring a hasty decision;
(5) the significance of what the party was trying to accomplish by
the conduct, such as an attempt to save another's life; and
(6) the party's particular capacities, such as age, maturity, training,
education, and so forth
DID YOU KNOW?
One who owns, occupies or leases property is under a
duty to use ordinary care, which is the care that
ordinarily careful persons would use to avoid injury to
themselves or others under the same or similar
circumstances. There is no duty to guarantee the safety
of those entering upon the property. The owner of a
retail store or other premises is not responsible for an
injury to a customer who is injured by a defect unless it
is shown that the owner had actual or constructive
notice of the existence of the defect.
Henson v. F. W. Woolworth's Co., 537 S.W.2d 923 (Tenn.App. 1974); Byrd v.
State, 905 S.W.2d 195 (Tenn. App. 1995)
If liability is to be predicated on constructive
knowledge of the defendant, the proof must show the
dangerous or defective condition existed for such a
length of time that the defendant knew or in the
exercise of ordinary care, should have known, of its
existence. Worsham v. Pilot Oil Corp., 728 S.W.2d 19
(Tenn. App. 1987).
The notice requirement is met when plaintiff can prove
that defendant's method of operation created a
hazardous situation foreseeably harmful to others.
Martin v. Washmaster Auto Center, 946 S.W.2d 314
(Tenn. App. 1996).
"In light of the nature of the snowstorm in this case, we have concluded that it
was reasonably foreseeable that most persons would avoid venturing out to
conduct routine business transactions. Thus, it would have been reasonable
for Crye-Leike to assume that its tenants’ customers would have stayed at
home and avoided unnecessary travel during the snowstorm.
Therefore, Crye-Leike did not act unreasonably when it decided not to begin
its efforts to remove the accumulated snow or to survey all of the properties it
owned or managed to determine whether the snowstorm had
created conditions that would be abnormally dangerous to the public. The
difficulty and expense of these remedial measures outweighed the possibility
that a customer, like Mr. Clifford, who decided to brave the winter weather
might injure himself by slipping on the side of a wheelchair ramp concealed
under the fallen snow.
Accordingly, under the facts of this case, the trial court correctly
concluded that Crye-Leike did not have a duty to warn persons doing
business at the State Farm office of the presence of the wheelchair ramp that
was concealed by the snow. Clifford v. Crye-Leike Commercial, Inc. 213
S.W.3d 846 ,Tenn.Ct.App.(2006).
BORED YET???
THERE IS MORE…..
In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn.
2004), the Tennessee Supreme Court held that
plaintiff 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 decision is an express adoption of
what used to be called the "method of operation
theory" of proving constructive notice. The owner, a
third person, or nature may cause the condition.
"We accepted this appeal of a premises liability case to
determine whether the “independent contractor rule”
adopted in Blair v. Campbell, 924 S.W.2d 75 (Tenn.
1996), relieves a premises owner from liability when a
premises owner provides an independent contractor
inaccurate information germane to the contractor’s
work. We hold that a property owner has a duty of
reasonable care to provide accurate information to an
independent contractor if the owner provides specific
information germane to the repair after engaging the
contractor. Bennett v. Trevecca Nazarene University,
216 S.W.3d 293 (Tenn.,2007).
Is your property safe?
The standard we adopt is the product of attempts by many jurisdictions to
deal with this admittedly difficult issue. While embracing neither the totality of
the circumstances*903 nor the prior incidents tests in toto, we have retained
the desirable features of both approaches, while avoiding the inherent
problems associated with each. For example, we have preserved the primary
advantage of the prior incidents rule by not creating an environment where
businesses are essentially held strictly liable for customer safety. At the same
time, our approach should enable meritorious cases to proceed to the jury
which is typical of deserving cases tried under the totality of the
circumstances approach. Moreover, rather than having an incentive to do
nothing (out of fear of having assumed a duty), businesses will be encouraged
to take reasonable security precautions, another characteristic of the totality of
the circumstances test.FN9 The merchant is in the best position to know the
extent of crime on the premises and is better equipped than customers to take
measures to thwart it and to distribute the costs. Craig v. A.A.R. Realty Corp.,
576 A.2d at 693.FN10
FN9. As stated by one of the amicus participants in this case, “[i]f the
premises owner does nothing to make himself or herself aware of the
potential imminent probability of harm to a customer, then no liability will
extend under the [current] rule. The effect is that ignorance translates into
nonliability and economic bliss for merchants, while business patrons can
easily be victimized by criminals who stalk the malls and parking lots of
shopping and retail centers.” See also 31 So. Tex. L.Rev. at 110-11 ( “Only
by imposing a duty to protect will business proprietors have the
necessary incentive to take measures that will limit the number of crimes
committed.... While very generalized economic incentives will encourage
owners to take some steps to reassure customers about their safety,
common experience demonstrates that these incentives are not enough to
encourage efficient crime prevention.”)
FN10. Of all the involved parties, the cost of crime reduction is cheapest to
the landowner. For the criminal, imposing civil liability on him in addition
to existing criminal sanctions does not deter him from committing the
crime. Imposing duty on the patron, so that he must protect and
compensate himself, may result in crime reduction, but only at the
expensive cost of the patron staying home. While the patron can prevent
crime by not going out at night, the price of staying home is high not only
for him but also for society in general. As opposed to the transient patron,
who has little information about the crime problem on the landowner's
premises and little ability to directly influence it, the landowner can be
much more effective in dealing with the problem. While the patron holds
just one expensive option, staying home, the landowner holds many
options ranging from installation of better lighting, fences, or guard
service, to even varying hours of operation. All of these options should be
less expensive and much more effective in deterring crime than the
patron's sole choice of staying home.
A jury consists of twelve persons chosen
to decide who has the better lawyer.
-Robert Frost