Businesses in Tennessee are under a duty to use ordinary care to prevent business invitees from being injured on their property. Tennessee case law defines ordinary care as 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. See Henson v. F.W. Woolworth’s Co., 537 S.W.2d 923 (Tenn. App. 1974).
In Blair v. West Town Mall, the Tennessee Supreme Court first recognized that a plaintiff can prove 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 (Blair, 130 S.W.3d at 766-67). In that case, a plaintiff slipped and fell on slick oil spots as she exited the main entrance of a mall (Id. at 762). The defendant filed a Motion for Summary Judgment, arguing that the plaintiff’s deposition testimony showed that:
prior to the accident, [plaintiff] never had difficulty entering or leaving the mall and had never seen anything on the roadway, 2) she did not notice any slippery substances as she was walking at the time of the accident, 3) she did not know how long the substance had been there, where it came from, or if anyone at the mall knew it was there, and 4) she did not know if anyone at the mall had an opportunity to do anything about the substance prior to the accident.
Id. at 763. Plaintiff responded, arguing that Defendant had constructive notice of the dangerous condition because of Defendant’s “method of operation,” specifically that it allowed commercial and private vehicles to stop outside of the mall’s main entrance/exit to load and unload passengers and/or merchandise. Id. Plaintiff asserted that it was foreseeable that these vehicles w[ould] from time to time leak engine fluids that could cause a pedestrian to fall and sustain injury. Id. To support her response, plaintiff submitted an affidavit from an automobile service consultant who alleged that motor vehicles commonly leak engine fluids when slowing down or stopping and that such leaks can create slick surfaces. Id. In addition, plaintiff submitted two photographs of the area where she fell. Id.
While the Supreme Court denounced use of the term “method of operation” to describe this theory of notice, it adopted the underlying premise of the theory. Specifically, a plaintiff can show that 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. (Id. at 767) Though the Supreme Court in Blair found for the plaintiff (Id. at 769), the Court did not elaborate on what facts would constitute a pattern of conduct or a recurring incident. Other Tennessee cases would indicate that proving this theory of constructive notice requires more than a random occurrence. See, for example, Beske v. Opryland, 923 S.W.2d 544 (Tenn. Ct. App. 1996), finding that train passengers regularly discarding drinks before boarding on the ground near turnstiles, as opposed to in a trash can, was a common occurrence; see also Barrett v. Red Food Stores, No. 01-A-019108-CV-00302, 1992 WL 33891, at *2 (Tenn. Ct. App. 1992), finding that water spilling on the floor every time an ice cream vendor stocked the freezer was a common occurrence.
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