Id.The determination of whether a duty is owed requires a balancing of the foreseeability and gravity of the potential harm against the burden imposed in preventing that harm. Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn. Ct. App. 2004). Once a duty is established, the scope of duty and the standard of care are questions of fact to be decided by the trier of fact.
[T]here is no liability for the results of an accident that could not have been foreseen by a reasonably prudent person and . . . `negligence is not to be presumed by the mere happening of an injury or accident.'" Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn.Ct.App. 2004) (quoting Brackman v. Adrian, 472 S.W.2d 735, 739 (1971)). Defendant asserts it had no knowledge of the alleged hazard — the toilet paper at the base of the toilet in the handicap stall being used by Plaintiff — that was superior to Plaintiff's knowledge and, therefore, owed no duty to the Plaintiff [Doc. 17 at 8].
simply looking where he was about to step."). We have also observed that " 'negligence is not to be presumed by the mere happening of an injury or accident,' " Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn. Ct. App. 2004) (quoting Brackman v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971)), and that "[a] landowner is not an insurer of his premises as relates to invitees." Id. at 224 (citing McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980)).
Owners also owe no duty to guests with regard to open and obvious conditions, unless the owner "should anticipate the harm despite [the guests'] knowledge or [the condition's] obviousness." Friedenstab v. Short, 174 S.W.3d 217, 223 (Tenn. Ct. App. 2004); see also Coln, 966 S.W.2d at 40. Because Mr. Boykin was lawfully on the Trust's premises, we conclude the Trust owed a duty to exercise reasonable care to prevent injury to him.
We believe that the defendant had no duty to protect the plaintiff from the consequences of his action, when he could have easily protected himself by simply looking where he was about to step."). We have also observed that " 'negligence is not to be presumed by the mere happening of an injury or accident,' " Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn. Ct. App. 2004) (quoting Brackman v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971)), and that "[a] landowner is not an insurer of his premises as relates to invitees." Id. at 224 (citing McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn.1980)).
Therefore, Defendant's Motion, insofar as it relies on an argument that no reasonable jury could find Plaintiff less than equally at fault for her injury, is also DENIED . Defendant cites to: (1) Friedenstab v. Short , 174 S.W.3d 217, 219 (Tenn. Ct. App. 2004) ; (2) Hall v. Owens , No. W201402214COAR3CV, 2015 WL 7354384, at *4 (Tenn. Ct. App. Nov. 20, 2015) ; (3) Wright v. 304 Broadway, L.L.C. , No. M2002-00952-COA-R3CV, 2003 WL 21004634, at *2 (Tenn. Ct. App. May 6, 2003) ; (4) Lowery v. Franks , No. 02A01-9612-CV-00304, 1997 WL 566114, at *9 (Tenn. Ct. App. Sep. 10, 1997) ; (5) Carr v. Ozburn-Hessey Storage Co. , No. 01A-01-9511-CV-00527, 1996 WL 383295, at *3 (Tenn. Ct. App. 1996) ; (6) Estate of Gunter v. Smith , No. 03A01-9512-CV-00448, 1996 WL 283069, at *1 (Tenn. Ct. App. May 30, 1996) ; (7) Sharp v. Anderson County , No. 03A01-9508-CV-00282, 1996 WL 42237, at *3-4 (Tenn. Ct. App. Feb. 5, 1996) ; (8) Walton v. Dickson County Bd. of Educ. , No. 01A01-9410-CV-00480, 1995 WL 422279, at *3 (Tenn. Ct. App. Nov. 27, 1995) ; and (9) Bobo v. Harris , No. 02A01-9306-CV-00153, 1994 WL 71531, at *4, (Tenn. Ct. App. Feb. 28, 1994). IV. CONCLUSION
2005)). Once a duty is established, the scope of duty and the standard of care are questions of fact to be decided by the trier of fact. Friedenstab v. Short, 174 S.W.3d 217, 225 (Tenn. Ct. App. 2004). Defendant argues that Plaintiff's claim for negligence must fail because it cannot identify a specific statutory or common law cause of action premised on the duty to prevent the "fraudulent cyber activity" of a third party.
Moreover, Plaintiff's Complaint alleges that both Defendants were negligent. The degree of fault of each party in producing an injury is a circumstance for the finder of fact to consider and determine. Timmons, 307 S.W.3d at 745. Once the Court has determined that the Defendant owes a duty to the Plaintiff, the questions of whether the Defendant has breached his duty and thereby caused the Plaintiff's injury are matters to be determined by the trier of fact. Patterson-Khoury, 139 S.W.3d at 285; Friedenstab v. Short, 174 S.W.2d 217, 225 (Tenn. Ct. App. 2004) ("[O]nce a duty is established, the scope of the duty or the standard of care is a question of fact to be decided by the trier of fact.") It is well established that cause in fact and proximate case are ordinarily jury questions unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome. Wilson v. Americare Systems, Inc., 397 S.W.3d 552, 559 (Tenn.
1993). Negligence is not to be presumed by the mere happening of an injury or accident, Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn.Ct.App. 2004), and businesses are not insurers of their customers' safety. Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn.
Id.See Friedenstab v. Short, 174 S.W.3d 217, 228 (Tenn. Ct. App. 2004); Morgan v. McCrory, No. 2A01-9605-CV-00072, 1997 WL 266816, at *4 (Tenn. Ct. App. May 20, 1997); Gunter v. Smith, No. 03A01-9512-CV-00448, 1996 WL 283069, at *1 (Tenn. Ct. App. May 30, 1996). Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000) (citing Coln v. City of Savannah, 966 S.W.2d 34, 44 (Tenn. 1998) (overruled on other grounds W. v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545 (Tenn. 2005)).