Day on Torts
In a recent premises liability case, the Tennessee Court of Appeals overturned a trial court decision for plaintiff on the basis of lack of actual or constructive notice of a dangerous condition, a key element in any premises liability case. In Barkley v. Shelby Co. Board of Educ., No. W2014-00417-COA-R3-CV (Tenn. Ct. App. March 18, 2015), plaintiff, a grandmother, visited an elementary school attended by two of her grandchildren. While there, she slipped and fell near a hand washing station in the hallway. Plaintiff alleged that there was water on the floor, and that such water was the cause of her fall.
Because the school was operated by the Shelby County Board of Education, this action fell under the Governmental Tort Liability Act (“GTLA”). The trial court found defendant liable, though it did reduce plaintiff’s award pursuant to comparative fault findings. On appeal, one issue raised by defendant was whether the trial court erred by not finding defendant immune from suit under the GTLA. The Court of Appeals, however, did not get that far, instead focusing solely on the issue of lack of notice.
Under the GTLA, a plaintiff making a premises liability claim must prove that “(1) the governmental entity owns and controls the location or instrumentality alleged to have caused the injury; (2) a dangerous, defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the governmental entity had actual or constructive notice of the dangerous condition; and (4) the governmental entity breached either its duty to eliminate the condition or its duty to warn of the condition.” Here, the Court stated that there was conflicting evidence regarding whether there was water on the floor causing the fall or whether plaintiff’s shoes caused her to fall and drop a cup of water she was holding, which accounted for the water on the floor. Either way, the Court summarily determined that, regarding actual notice, there was “no evidence in support of a determination that the Board had notice of water on the floor at or near the location of [plaintiff’s] fall, sufficient either to remove its immunity or to otherwise establish liability.”
The Court then moved forward to examine the evidence supporting potential constructive notice of the water. Examining four witnesses’ testimony, the Court noted evidence that no other falls had occurred in this area, that no one saw water on the floor before the fall, that the water present after the fall was by the cup, and that if any water were ever in that area it would be a “dot or spot.” Based on these facts, the Court concluded that “Plaintiffs presented no proof as to the length of time the water or other substance upon which [plaintiff] apparently fell had been present or any other fact upon which to conclude that the Board had constructive notice of the specific condition. General knowledge that such a condition may exist does not constitute constructive knowledge of a specific condition.” Finding no actual or constructive notice of the allegedly dangerous condition, the Court thus overturned the trial court and dismissed the case.
This case is a great reminder that in a premises liability case, whether the claim is asserted against a governmental entity or private party, proving notice is absolutely essential unless you can prove that the defendant created the dangerous condition.. Without evidence to support actual or constructive notice, a plaintiff’s claim will fail. Here, the Court of Appeals only cited evidence that supported defendant’s theory of the case, and it is unclear whether plaintiff simply failed to introduce evidence regarding notice or whether the Court found such evidence less credible. Either way, notice is a major hurdle that every premises liability plaintif must cross unless he or she has evidence the defendant created the hazard. .