*1 dеfendant, Leavy, for Joe taxed to the are necessary. if shall issue
which execution Shirley HALE OSTROW, et al. Erwin Tennessee, Supreme Court at Jackson. April 2005 Session. July 1, 2005. *2 defen- conclude that the authority, we
ble duty of care owed a dants ob- the sidewalk to ensure that bushes and was by overgrown structed *3 in the evidence Viewing the passable. there plaintiff, most favorable to light of material fact as issues genuine are caused breach defendants’ whether the and remand injury. therefore reverse We proceedings. further for
Background summary judgment con- on
The record facts, we consider following which tains the the plaintiff, favorable to 27, 1998, May nonmoving party. On Hale”) (“Ms. was Shirley Hale Memphis, stop a walking home from bus bus had taken a different Tennessee. She walking a and route than usual so was Leffler, Stephen Memphis, R. Tennes- normally along that she did a sidewalk see, Appellant, Shirley for the Hale. on Missis- proceeded As south travel. she R. and Matthew S. Rus- Gary Wilkinson Boulevard, street, noticed busy she sippi a Tennessee, sell, Appel- Memphis, for the was blocked. ahead sidewalk lees, Rose Erwin Ostrow and Ostrow. Mississippi protruding from 1073 Bushes Tennessee, Mayer, Memphis, Minton P. the sidewalk overgrown had Boulevard Appellee, for the Max Ostrow. grown telephone pole and had around sidewalk, blocking Ms. on the located OPINION that she way. Ms. Hale determined Hale’s ANDERSON, J., and enter the E. delivered had the sidewalk RILEY to leave the obstruction. court, bypass FRANK opinion of the in which street order DROWOTA, III, C.J., was “crum- that the sidewalk F. and ADOLPHO She noticed sidewalk, BIRCH, JR., before As left the but A. and WILLIAM M. she bled.” bushes, Hale looked BARKER, JJ., joined. Ms. M. she reached JANICE As HOLDER, for traffic. she J., to check concurring filed a into the street tripped over chunk up, she dissenting looked opinion. Ms. street. into the concrete and fell to determine wheth- granted review We fall, crushed hip left Hale’s owners owed property er the medical care. required extensive injured property as off the owners’ person the side- that had The bushes existing ownеrs’ of a hazard on the a result in front of 1073 Missis- so, located if walk were to determine whether property and a vacant property, That sippi Boulevard. cause of the the hazard was the Max lot, defendants summary judg- was owned granted The trial court Ostrow, owners, Ostrow, Rose Ostrow Erwin ment to the defendant or “defen- (collectively, “the Ostrows” affirmed. After Appeals and the Court sidewаlk, dants”). and the The crumbled applica- record and carefully reviewing the fell, where Analysis spot Ms. Hale actually were located in front of Mississippi Boule- A party is to summary entitled vard. That was not owned judgment if he or she establishes that the defendants. there no any issue as to materi judgment may al fact .and that a be ren against
Ms. Hale suit filed the Ostrows Penley dered as matter of law. v. Hon in the Shelby County, Circuit Court for Co., (Tenn. da Motor Tennessee, on premises liability theories of 2000); see Tenn. R. also Civ. P. In public 56.04. nuisance.1 The Ostrows moved reviewing a motion for summary judg summary judgment on negligence ment, the Court must examine claim, the evi arguing that a property owner owes *4 all dence and reasonable no inferences from duty person of injured care to a on evidence in a most favorable to property. another’s Because Ms. Hale’s the non-moving party. Webber v. State injury occurred when she tripped on the Co., Farm Mut. Auto. Ins. 49 S.W.3d sidewalk located front of Mississip- 1063 (Tenn.2001). Boulevard, We review trial pi rather than in front of the ruling court’s de novo. Id. property Ostrows’ at 1073 Bou- Mississippi levard, the argued Ostrows they that owed A negligence requires claim proof duty no to Ms. Hale because she never (1) of the familiar following elements: property. Moreover, entered their they duty by of care owed the defendant to the argued injury that her was caused (2) plaintiff; conduct by the defendant fall sidewalk, defective not the overgrown ing of amounting below standard care bushes. (3) duty; to breach of that an or granted
The trial court summary judg- (4) loss; (5) fаct; causation in proxi ment any stating Ostrows without legal mate or City cause. v. Sa Coln of grounds, and the Appeals Court of af- vannah, 966 S.W.2d firmed. Appeals The Court of held that willWe review the contested elements in Ms. Hale could not succeed on either a turn.
theory premises of liability of public or
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We review. important, considerations are the foresee against 1. Ms. Hale also granted filed suit court summary judgment City owner to ’ Boulevard, Mississippi Edwin Britte- Memphis. appeal Ms. Hale does not num, City Memphis. After obtain- ruling. Consequently, the Ostrows are ing Brittenum, judgment against a default only remaining defendants. voluntarily nonsuited that action. The trial Ordinances, Memphis City of because Code prong paramount ‘[f]ore- ability ” (2003) (“It misdemean- shall be a § Bis 34-127 seeability negligence.’ test of is the (Tenn. hedges, foliage or Brown, shrubbery, to pеrmit or can v. Co., or 2005) sidewalks project over (quoting any Doe v. Linder Constr. kind (Tenn.1992)). the free 173, 178 to interfere with walkways so as walkways by pe- or of such sidewalks use. argue that be- The Ostrow defendants 34-118(b) (duty destrians.”); § at id. property their cause Ms. Hale was on clean keep owner “to every property fell, her a they not owe at the time she did all side- passage public public open notes that of care. Ms. Hale adjacent or walkways abutting on or walks deny they failed to do not Ostrows ”); § ... id. at 34-120 to such or that the bushes were trim the bushes (owner keep sidewalks “free must sidewalk; blocking they argue nor do ”). weeds, ... mud, growth noxious grass, not owe that a owner does on sidewalk. passersby of care argue that because The Ostrows simply argue that the does Ostrows “natural,” were a enters the de- not attach until artificial, fea a man-made or than rather *5 property. They argue fendant owner’s not have a they did landscape, ture of the they were that there is no evidence that from the side duty to remove the bushes responsible for broken concrete and the to rely urge us The Ostrows on walk. inspect to they did not have a that posses rulе that a adopt common-law the adjoining property the for defects. “physical harm is not hable for sor of land difficulty concluding in We have little by a outside of the land caused to others owners, the owed property that as Ostrows Restate the land.” natural condition of passerby as a to care to Ms. Hale 363(1) (1965). (Second) Torts, § ment that was not obstruct- ensure the sidewalk bеlieve, however, the that dis We do not overgrown passable. bushes and was ed man-made natural and tinction between view, gravity In our analysis. As to our features is relevant potential clearly a pedestrian harm to has Court ob Supreme the California outweighed prevent the burden to served, entirely harm. It was that artificial the distinction between emanating from the overgrown bushеs Os- conditions, immunity and the natural property which obstructed the side- trows’ on that distinc- liability predicated using impede pedestrians
walk would tion, to the ma- relationship little bears It that sidewalk. was also foreseeable jor which should determine factors go forced to around pedestrian would be given the be immunity whether should obstruction, alleges as that Ms. Hale aby for harm done рossessor of land here, do and that the required she was to land. The fore- natural condition of the result in an detour could plaintiff, harm to the seeability of preventing plaintiff. The burden certainty that the suf- degree of however, harm, trim- simply was minimal— connec- injury, the closeness of the fered removing ming or the bushes. conduct tion between the defendant’s the ex- Moreover, injury suffered ... аnd affida- and the the record contains an to the defendant Administra- tent of burden vit from a Street Maintenance community of to consequence it stating that City Memphis tor for the care have to exercise imposing to responsibility owner’s natural, little, any, relationship if and shrubs. See also maintain sidewalks 718 artificial, opposed origin of the defendant’s conduct is the
conditiоn causing harm. injury if, cause fact of plaintiffs as a matter, factual it directly contributed to Cos., Sprecher 358, v. Adamson 30 Cal.3d the plaintiffs injury. In a case such as 783, 1121, Cal.Rptr. 636 P.2d one, we must plain ask whether the (1981) (citation omitted). view, In our tiffs injury would have happened “but for” moreover, the distinction between natural the defendants’ act. See Wood v. New and artificial particularly conditions is ill- man, Hayes & Agency, Dixon Ins. suited setting, to the urban prop where all not, If then erty is altered from its “natural” state. the defendants’ conduct cause is a in fact We refuse to recognize rule that would plaintiffs injury. It is neces liability relieve from a landowner who ne sary that the be defendants’ act the sole glects property. his Distinguishing be injury, only cause of the plaintiffs that it tween natural and artificiаl conditions abe cause. an setting urban “creates the anomalous Viewing the facts in the situation of imposing liability on a land Hale, favorable to Ms. a genuine there is improves owner who and maintains his issue material fact as to property while precluding liability of on the proper Ostrows’ neighboring landowner who allows the ty were a fact of her Ms. ‘natural condition’ of his run Hale stated in deposition Hansen, Harvey wild.” Pa.Super. completely bushes had overgrown the side (1982); 445 A.2d see also walk, that she determined could Silverman, Whitt v. 788 So.2d *6 sidewalk, not bypass the on the and bushes (Fla.2001) (rejecting distinction between that. she therefore to leave the decided natural and artificial conditions in of favor sidewalk and into she step the street. As foreseeability analysis determining for so, did she to check for traffic up looked landowner). duty of tripped over the broken sidewalk. But the overgrowing for bushes the side Causation walk, Ms. Hale up would not have looked traffic, to check for she not would have recite, As we often negli a to step Might needed into the she street. gence requires proof claim types of two nevertheless have over the con tripped causation: in proximate causation fact and injury? crete same In suffered the cause. “Causation proximate fact] and [in might deed have. Given that the evi cause are distinct elements negligence, summary judgment dence on must be and both proven by must be the in light most viewed favorable to the by a preponderance of the evidencе.” Kil however, the, causation, plaintiff, issue of patrick Bryant, 868 S.W.2d comparative as well as the allocation of in proximate Cause fact and fault, are determinations of fact to be are “ordinarily jury cause questions, un jury. made less the uncontroverted facts and infer ences be drawn from them make it so it Once is determined that the clear that all persons reasonable must plaintiffs injury happened would not have agree on the proper outcome.” Haynes v. but for duty, the defendants’ breach of County, Hamilton 883 S.W.2d 612 next question is whether the defendants’ (Tenn.1994) (citing McClenahan v. Cooley, proximate plain a of the breach was cause (Tenn.1991)). 806 S.W.2d injury, very tiffs which a is different from reasonably been fore- have tion could injury. Proximate in fact cause оf ordi- by person a anticipated chain, such seen or a limit on causal puts cause prudence. intelligence that, nary though plaintiffs even for the de- happened not have but would (quoting at Haynes, breach, will not be defendants fendants’ 775). McClenahan, 806 S.W.2d at sub- injuries for that were not held liable fa light in Viewing the facts conduct or were stantially caused their Hale, genuine is a thеre vorable Ms. results of their reasonably foreseeable not as to whether material fact issue 612. Haynes, at 888 S.W.2d conduct. fall, factor a substantial were bushes cause, cause, “Thus, legal or proximate to her was the harm as to whether legal whether concerns determination might it though Even foreseeable. where cause liability imposed should be a pedestrian have been Kilpatrick, has been established.” fact going trip on broken concrete would at 598. bushes, never injury was around the ex Having determined that there from type expected to be theless fact as to issue of material genuine ists overgrow the side bushes to permitting bushes on the Os- overgrown See, e.g., Novelty Co. v. United walk. a cause-in-fact of Ms. (Miss.1949). trows’ were Daniels, In So.2d there injury, we must ask whether Hale’s instance, policy or is no rule there they were issue as to whether liability relieve a landowner should cause. The Court proximate also a overgrow a vegetation to permitting that, of Ms. Hale’s Appeals held contrary, there To the public sidewalk. testimony encountered that she never it, i.e., the against rules are number of avoid stepped оr into the street to bushes requiring Memphis ordinances bushes, proxi not a bushes were and free of keep sidewalks clear owners note, of her We how mate cause overgrowth. Accordingly, the determina ever, Ap Court of question that the tion of whether actually answering was whether peals inju of Ms. Hale’s proximate were *7 a in of her bushes were cause the jury. fact for thе question of fact ry essen injury, appellate the court because still tially injury that her would decided Conclusion the if not for bushes. have occurred even record carefully the examined Having with disagree explained, As we have we authority, we reverse applicable and the conclusion that the Appeals’ the Court of and the trial court of the the decisions law, were, not a of as matter bushes summary judg- granting Appeals of Court injuries. in fact of Ms. Hale’s cause that We conclude ment to the defendants. duty with to the is addressed owed a care Proximate cause the defendants three-pronged test: that the sidewalk was to ensure plaintiff and by bushes (1) not obstructed conduct must have the tortfeasor’s in the Viewing the evidence bringing passable. in wаs factor” a “substantial been Hale, there are of; to Ms. most favorable light being complained harm about fact as to of material (2) issues that policy is no rule or and there duty breach of their the Ostrows’ wrongdoer liabil- relieve should therefore injury. We caused her of care manner in which ity of the because court for harm; the trial the case to remand in has resulted negligence note that proceedings. We (3) further to the ac- giving the harm rise and for, Ostrows moved and the trial duty established, court of care is it is for the granted, judgment summary as to Ms. trier of fact to determine the existence of negligence Hale’s claim As only. to the in proximate fact and cause as well public claim, nuisance we note that appar- duty as breach injury and or loss. in ently deciding proximate cause issue Scarlett, v. Lourcey Estate Appeals rejected the Court of the public (Tenn.2004) (Holder, J., 55-56 concur nuisance claim as well. We reverse and ring).
remand to the trial court. Costs are taxed analysis The majority used defendants-appellees, Ostrow, Max however, care, find a requires the Ostrow, Ostrow, Erwin and Rose for which weigh trial court tо and may execution if necessary. issue gravity potential harm against the burden of preventing the harm. In ana- HOLDER, J., JANICE M. filed states; lyzing duty, majority opinion concurring dissenting opinion. entirely It was that over- HOLDER, J., JANICE M. concurring grown emanating from the Os- dissenting. trows’ property which obstructed the agree I majority opinion with the sidewalk impede pedestrians would us- defendants owed a to the ing the sidewalk. It was alsо foresee- and, viewing the evidence in the able that a pedestrian would be forced to favorable to the plaintiff, that there are go obstruction, around the as Ms. Hale genuine issues of material fact as to cause alleges here, required that she was do in proximate fact and legal or cause. I and that the detour could result an continue, however, my рrevi- to adhere to plaintiff. The burden position ous majority’s analysis harm, however, mini- preventing the legal blurs the line between cau- simply trimming removing or mal— by improperly sation encouraging “the tri- bushes. al usurp court to jury role of the A jury must consider same facts weighing the reasonableness the defen- determining or proximate legal causation. dant’s Burroughs conduct.” Magee, majority’s (Tenn.2003) discussion of the issue (Holder, J., S.W.3d proximate or legal proves causation concurring dissenting).1 point by essentially repeating its discus- law, As a question of the existence of a “duty”: sion of duty is to' be determined the trial court. Assocs., Inc.,
Staples v. CBL & entirely pedes- It was foreseeable that *8 83, case, In this might injured, I would trian trip and be either hold that the duty defendant' had a to use attempting to the bushes or traverse reasonable care not to cause harm to pe by going it though around them. Even destrians using walkway. might Burroughs, not have been foreseeable that (“There at duty S.W.3d is a broad pedestrian would on broken con- trip to exercise reasonable care bushes, to avoid caus in going crete around the others.”). ing injury Once was type nevertheless of the to be Scarlett, Inc., Lourcey 83, 92-93 (Tenn.2000) (Hold 1. See v. Estate 146 S.W.3d 15 S.W.3d 48, (Tenn.2004) J., (Holdеr, er, J., Sabir, 55-56 concurring); concur Rice v. 979 S.W.2d 323, 305, ring); Burroughs (Holder, X, Magee, (Tenn.1998) v. 118 S.W.3d 310-11 dissent (Holder, J., (Tenn.2003) Savannah, concurring 338-39 ing); Coin v. S.W.2d 46-47 Assocs., J., (Tenn.1998) (Holder, dissenting); Staples concurring). v. CBL & the bushes expected permitting
overgrow the sidewalk. majority’s duty analysis improperly that is “encompasses weighing process negli- jury normally reserved Sabir, gence cases.” Rice v. (Tenn.1998) (Holder, J., dissent- Further, compli- ing). balancing test judge by confus- job of the trial catеs ing trial court’s determination of fact’s duty of a with the trier
existence duty determination at Burroughs, breached. See 339. make require
I a trial court to would concerning a determination jury. to a I properly is more left hold, law, that a would a matter of reason- owner owes a use pedestrians care not to cause harm to able I using question. the sidewalk in would jury to determine whether permit breached that and whether landowner pedestrian and her sub- the actions of the injuries reasonably fore- were sequent consequence any breach of seeable jury. found of Tennessee STATE D. Patrick COLLINS. Tennessee, Supreme Court at Nashville. at Pulaski.1 April 2005 Session
June 2005. *9 Legal Advancing Education (Supreme Court argument in this case on 1. was heard Oral Pulaski, Students) County, Ten- April project. Giles nessee, part S.C.A.L.E.S. of this Court’s