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Mayfield v. Hairbender6/2/2005
to a landowner's alleged negligence for allowing the hazard to remain. And it does not eliminate the landowner's duty to maintain the premises in a reasonably safe condition. The question of whether an owner or occupier of a premises was negligent for failure to repair an alleged dangerous condition is ordinarily for the jury to decide. The duty to maintain the premises in a reasonably safe condition has not changed.
. To the extent Mayfield's case is based upon an allegation that The Hairbender failed to maintain its premises in a reasonably safe condition by its negligent failure to repair the raised asphalt, the fact that the hazard was "open and obvious"does not serve as a complete bar to recovery. In the event Mayfield convinces the jury that the raised asphalt constituted a dangerous condition which The Hairbender negligently failed to repair, the jury may find The Hairbender liable. However, the jury must compare The Hairbender's negligence for failure to repair the dangerous condition, to Mayfield's negligence for failing to protect herself from injury caused by an open an obvious hazard, and reduce its award, if any, to Mayfield accordingly. Again, this exactly follows this Court's holding in Tharp.
. Viewing the facts in the light most favorable to Mayfield, a genuine issue of material facts exists as to whether The Hairbender negligently failed to maintain its premises in a reasonably safe condition. Summary judgment - to the extent it applied to Mayfield's claim of negligent failure to maintain the premises in a reasonably safe condition - was improper and is reversed and remanded.
CONCLUSION
. For these reasons, we affirm the summary judgment on Mayfield's failure to warn claim. We reverse the summary judgment on the failure to maintain the premises/comparative negligence claim and remand this case for further proceedings consistent with this opinion on that claim.
. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES AND RANDOLPH, JJ., CONCUR.
DIAZ, J., NOT PARTICIPATING.
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