Opinion
C/A No. 03A01-9508-CV-00288.
December 7, 1995.
BRADLEY COUNTY CIRCUIT COURT, HONORABLE EARLE G. MURPHY, JUDGE.
CONCURRING OPINION
I concur in the result reached by the majority. I believe it is clear, under Eaton v. McClain , 891 S.W.2d 587, 595 (Tenn. 1994), a post- McIntyre decision of the Supreme Court, that the law in Tennessee is still to the effect that an owner of premises does not have to warn an invitee of a danger that is "open and obvious." I believe the application of this principle, without more, justifies the trial court's grant of a directed verdict in this case. Here, the condition was "open and obvious." Therefore, there was no duty to warn. Since the plaintiffs' case was predicated on the alleged violation of a duty to warn, and since their proof did not demonstrate the existence of that duty, the defendants were entitled to a directed verdict. If there is no duty, there can be no negligence. Doe v. Linder Constr. Co. Inc. , 845 S.W.2d 173, 178 (Tenn. 1992). I believe that the rationale of this concurring opinion is all that is required to justify affirming the court below. I would go no further.
________________________________ Charles D. Susano, Jr., J.