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Tennessee Supreme Court Explains Notice Requirement in Premises Liability Case

By Steve Collins
steve@bcnattorneys.us

In order for a plaintiff to win a premises liability case, he or she must prove the property owner had “notice” of the condition causing harm. In an opinion issued on March 11, 2004, the Tennessee Supreme Court held the notice requirement is satisfied if the plaintiff proves “a pattern of conduct, a reoccurring incident, or a general continuing condition indicating the dangerous condition’s existence.” Blair v. West Town Mall, 2004 WL 443379 (Tenn. 2004).

The plaintiff was injured when she slipped and fell on an “oily spot” as she exited the mall. The theory of liability was based on the argument that the property owner knew or reasonably should have known that buses which dripped oil disembarked customers at the area where the plaintiff fell. The argument continued that since the property owner knew or should have know of this fact, then it should have taken steps to remove the oily spots.

The Court first gave a primer on basic premises liability law:
  • The fundamental basis for premises liability stems from the property owner’s “superior knowledge of the premises.”
  • To be liable, it must be proved that the owner created the condition; or if the condition was created by someone else, the owner should have known (had constructive knowledge) of the condition.
  • Constructive knowledge is established when the condition existed for a length of time such that in the exercise of reasonable care, the owner should have become aware of it.
  • After notice is proved, the plaintiff must also prove that the owner failed to use due care to remediate the condition or to warn of it.
The Court’s analysis focused on how constructive notice may be proved and rejected a common theory used to prove constructive notice. That theory is known as “method of operation.” The Court said that the owner’s method “of doing business is not determinative.” The question is whether the condition occurs with such frequency that it is reasonable to conclude “the owner is put on constructive notice of its existence.”

If the incident is one which reoccurs or results from a continuing condition, then it is not necessary under this new ruling to prove that some particular method of operation of the business caused the condition. The Court mentioned that one method which will remain to prove constructive knowledge is proof that the condition existed “for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition.”

The Court’s Opinion is a reminder to businesses of the importance of policing their property. Remember that even if the notice requirement is satisfied, the plaintiff must still prove negligence. Businesses should implement a habit and routine practice of inspecting their business premises. These activities should be documented. When conditions are discovered that could cause harm, action should be taken to remediate them. While in the process of remediating the condition, warning signs should be placed in clear view of customers.

In view of the Court’s new ruling, there are also now instances where more consideration should be given to permanent warnings. It is doubtful the defendant in this case could have completely remediated the oily discharge from buses stopping at the entrance to the mall. The phenomenon is a desirable, reoccurring event in that the customers are using the entrance as intended as a point of entering and exiting the shopping mall. It would therefore appear that the proof of the notice requirement in such a case would be a given. The solution for the property owner could include a permanent warning sign at the entrance to the effect, “Careful, Watch for Slippery Surface.”

 

 


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