Francis Ione Lethcoe v. Ricky Ray Holden, et ux , 2000 Tenn. App. LEXIS 153 ( 2000 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE                  FILED
    March 15, 2000
    Cecil Crowson, Jr.
    Appellate Court Clerk
    E1999-02319-COA-R3-CV
    FRANCIS IONE LETHCOE, as      )    C/A NO. 03A01-9904-CV-00155
    surviving spouse and next of  )
    kin of Vernon Lethcoe,        )
    deceased, for the benefit of  )
    herself and JUSTIN CHARLES    )
    LETHCOE, CHRISTOPHER VERNON   )
    LETHCOE, CANDICE MISTY        )
    LETHCOE, JIMMY JOE BEAR       )
    LETHCOE, the surviving        )
    children of Vernon Lethcoe,   )
    )
    Plaintiff-Appellant,   )
    )    APPEAL AS OF RIGHT FROM THE
    )    MCMINN COUNTY CIRCUIT COURT
    )
    )
    v.                            )
    )
    )
    )
    )
    RICKY RAY HOLDEN and wife,    )
    SHEILA MARTIN HOLDEN, and PAM )
    KNOX and husband, VAN KNOX,   )
    )    HONORABLE JOHN B. HAGLER,
    Defendants-Appellees. )     JUDGE
    For Appellants                     For Appellees
    ROBERT E. PRYOR                    GARY M. PRINCE
    Pryor, Flynn, Priest & Harber      O’Neil, Parker & Williamson
    Knoxville, Tennessee               Knoxville, Tennessee
    O P I N IO N
    AFFIRMED AND REMANDED                                       Susano, J.
    This is a wrongful death case.    Francis Ione Lethcoe
    1
    sued the owners of the property on which her late husband, Vernon
    Lethcoe (“the deceased”), was working when he was injured while
    engaged in the business of his employer, Bain and Holden Tire
    Company, Inc. (“the employer”).       The trial court held that the
    owners of the property were not legally responsible for the
    injuries and resulting death of the deceased.       It granted their
    motion for summary judgment.   The plaintiff appeals, claiming
    that the general rule of a landlord’s non-liability does not
    apply to the circumstances of this case.
    The material facts of this case are not in dispute.
    The defendants are the co-owners of the subject property.       On
    September 1, 1991, they leased the premises to the employer for
    use as a tire buffing and recapping facility.       In the lease, the
    employer agreed that the premises were in a “good, clean, and
    safe condition and repair” and agreed to maintain the property in
    such a condition.
    The defendant, Ricky Ray Holden, in his capacity as
    president of the employer, is primarily responsible for the day-
    to-day operations of the employer.       He signed the lease as one of
    the co-owners and also on behalf of the employer.       Two of the
    other defendants are members of the employer’s board of
    directors.   Mr. Holden is on the premises on a daily basis, while
    the other three defendants are present on the property from time
    to time.
    Dust and rubber shavings, as by-products of the
    employer’s business, are removed to the outside of the building
    through the use of a specially-designed exhaust system built into
    the structure of the building.    This process often results in the
    2
    accumulation of rubber dust and shavings on the roof.    Mr. Holden
    arranges for the removal of the accumulated dust and rubber
    shavings from the roof once a year, usually in the summer months.
    He utilizes non-company labor and a non-company dump truck.    On
    January 6, 1995, the roof collapsed from the accumulated
    material, and the deceased died as a result of injuries received
    in the accident.   Full worker’s compensation benefits were paid
    to the deceased’s estate by the employer or its carrier.
    On January 5, 1996, the plaintiff filed this wrongful
    death action against the defendants as co-owners of the property.
    The defendants filed a motion for summary judgment on September
    2, 1997, relying on the rule that a landlord is generally not
    liable to a tenant or third party for harm caused by a dangerous
    condition on the leased premises.    The trial court granted the
    motion and later denied the plaintiff’s motion to alter or amend
    the judgment.   The plaintiff now appeals, arguing that, under the
    facts of this case, certain exceptions to the general rule of a
    landlord’s non-liability are applicable.
    Since the facts in this case are not in dispute, our
    only task is to decide whether those facts show that the
    defendants are entitled to summary judgment.    See Rule 56.04,
    Tenn.R.Civ.P.; Byrd v. Hall, 
    847 S.W.2d 208
    , 215 (Tenn. 1993).
    Generally, a landlord is not liable to a tenant or a
    third party for harm caused by a dangerous condition on the
    leased premises.   Hester v. Hubbuch, 
    170 S.W.2d 922
    , 926
    (Tenn.Ct.App. 1942); Roberts v. Tennessee Wesleyan College, 
    450 S.W.2d 21
    , 24 (Tenn.Ct.App. 1969); Whitsett v. McCort, 
    1990 WL 123943
    , *4 (Tenn.Ct.App. W.S., filed August 28, 1990).
    3
    The general rule of a landlord’s non-liability is
    subject to several exceptions.     One exception applies if the
    following facts are shown: (1) the dangerous condition was in
    existence at the time the lease was executed; (2) the landlord
    knew or should have known of the dangerous condition; and (3) the
    tenant did not know of the condition and could not have learned
    about it through the exercise of reasonable care.       Maxwell v.
    Davco Corp. of Tennessee, 
    776 S.W.2d 528
    , 531-32 (Tenn.Ct.App.
    1989).   As a natural corollary of this exception, when a landlord
    and a tenant have co-extensive knowledge of the dangerous
    condition, the landlord is not liable to the tenant, or the
    tenant’s employees, for injuries sustained as a result of the
    dangerous condition.   See 
    id. at 532
    .
    With respect to this exception, the plaintiff argues
    that “there is no question but that the dangerous condition pre-
    existed the Lease and that the [owners] should have known of such
    dangerous and unsafe condition.”       Even assuming arguendo that a
    dangerous condition pre-dated the lease and that the owners knew
    about it, the plaintiff’s argument ignores the third requirement
    for application of the exception, i.e., that the tenant did not
    have actual or constructive notice of the dangerous condition.
    Under the facts of the instant case, it is clear that the
    knowledge of the employer was equal to, if not greater than, the
    knowledge of the property owners.       Thus, if the property owners
    had actual or constructive knowledge of a dangerous condition on
    the property, so too did the employer, i.e., the tenant, and this
    exception to the general rule would not apply.      Hence, we find
    that the undisputed facts do not implicate the subject exception.
    4
    In a related argument, the plaintiff asserts that the
    general rule does not apply and that the owners are liable
    because the property was unsafe for the purpose for which it was
    leased.   She relies on the following facts to support this
    argument: (1) the building was specially designed to serve as a
    tire and recapping store; (2) the building included a special
    exhaust system designed to remove rubber dust and shavings during
    the recapping process; (3) the rubber dust and shavings often
    created excessive weight on the roof of the building as they
    accumulated there; (4) the premises were open to the public; and
    (5) the owners of the property either knew or should have known
    all of the foregoing facts.   The plaintiff argues that, because
    the building was unfit for its intended use -- a tire and
    recapping store open to the public -- the owners owed a
    heightened duty to the employees of the tenant.   This duty was
    breached, the plaintiff argues, when the roof collapsed, killing
    the deceased.
    This argument is based on the plaintiff’s reading of
    Stenberg v. Willcox, 
    33 S.W. 917
     (Tenn. 1896).    She cites that
    case in support of the following statement in her brief: “[i]t is
    well-settled that when an owner of property leases the property
    in a condition which would make it unsafe for the purpose for
    which it is being leased because of a dangerous condition, the
    owner/lessor will be liable.”   We have reviewed Stenberg and find
    the plaintiff’s interpretation of the case to be flawed.
    It is true that Stenberg contains the following
    language: “If the landlord lets the premises for a purpose which
    he knows (or ought to know) it to be unfit for, knowing that
    strangers will be invited there, it has been held that he is
    5
    liable to them.”   Id. at 917.   But this statement is only a
    partial articulation of the rule applied by the Stenberg court.
    The rule, in its entirety, as stated by the court in Stenberg, is
    as follows:
    if plaintiffs can recover at all in this
    case, it must be upon the ground that the
    landlord leased premises in a dangerous and
    unsafe condition, when he knew, or might, by
    the exercise of reasonable diligence and
    care, have known, of such unsafe condition,
    and upon the further ground that plaintiffs
    did not know of such unsafe condition, and
    could not have known of it by the exercise of
    reasonable diligence and care....
    Id. at 917.   We do not believe that the rule announced in
    Stenberg is materially different from the principle set forth in
    the Maxwell case, 
    776 S.W.2d at 531-32
    , i.e., the landlord is
    only liable if (1) the dangerous condition was in existence at
    the time the lease was executed; (2) the landlord knew or should
    have known of the dangerous condition; and (3) the tenant did not
    know of the dangerous condition and could not have discovered it
    through the exercise of reasonable care.   Therefore, we hold that
    this exception does not apply to the instant case because, as
    previously stated, the employer’s knowledge regarding the
    dangerous condition was at least equal to that of the owners.
    Another exception to the general rule is implicated
    where the landlord has negligently repaired the premises,
    regardless of whether the landlord was under a contractual duty
    to make repairs or whether it simply undertook to make the
    repairs gratuitously.   Smith v. Tucker, 
    270 S.W. 66
    , 70 (Tenn.
    1925).   The plaintiff argues that this exception applies because
    Mr. Holden periodically arranged for the removal of the tire
    shavings from the roof using neither employees nor personal
    6
    property of the employer.    The plaintiff contends that the
    removal of tire shavings amounted to a “repair” and that it was
    done negligently, apparently because it was not done early
    enough.    The plaintiff argues that she must be allowed to conduct
    discovery to determine whether this negligent repair was done by
    Mr. Holden in his capacity as president of the employer or in his
    capacity as one of the co-owners.
    We are of the opinion that this exception also does not
    apply.    The fact that Mr. Holden used neither company employees
    nor company assets to remove the tire shavings from the roof is
    irrelevant to the question of the capacity pursuant to which he
    made the necessary arrangements to remove material from the roof.
    Under the terms of the lease, the employer was responsible for
    repairs.    It is not significant that Mr. Holden employed outside
    help to remove the material from the roof.    This does not
    indicate that the property owners, rather than the employer, were
    performing the subject task.    We do not think that it is a
    reasonable inference, based on the facts before us, that Mr.
    Holden arranged for the removal of tire shavings from the roof in
    his capacity as one of the owners.    Mr. Holden is the president
    of the employer.    It is reasonable to assume that he was acting
    in this capacity.    As previously noted, under the lease, repairs
    were the responsibility of the employer.
    The plaintiff had ample opportunity to conduct
    discovery in this case.    The complaint was filed on January 5,
    1996.    The motion to dismiss was not filed until September 2,
    1997.    The plaintiff then had until May 27, 1998, the date of the
    hearing on the motion, to conduct discovery.    Therefore, the
    plaintiff had more than sufficient time to do the necessary
    7
    discovery.
    The plaintiff also asserts that the general rule does
    not apply and that the owners are liable because, so the argument
    goes, they retained control of the property.           In support of this
    argument, she again points to the fact that Mr. Holden
    periodically arranged for the removal of the accumulated material
    from the roof using resources other than those of the employer.
    Additionally, she notes that Mr. Holden is both an owner of the
    property and the president of the employer, that two of the other
    defendants are members of the employer’s board of directors, and
    that, in addition to Mr. Holden being on the property almost
    daily, the other three defendants were also on the property from
    time to time.
    It is true that, because the general rule of non-
    liability of a landlord is premised on the assumption that the
    landlord is not in control of the property, a landlord may be
    held liable where the landlord in fact retains control of the
    property.    Cf. Whitsett v. McCort, 
    1990 WL 123943
    , *4
    (Tenn.Ct.App. W.S., filed August 28, 1990).1          However, the owners
    here did not retain control of the subject property.            As stated
    previously, the fact that non-company resources were utilized to
    1
    In Whitsett, a case between a plaintiff-subcontractor and defendant-
    landowners, we said
    the duty of the landowner concerning defects on the
    property may be and is delegable when the possession
    and control of the property is passed to another such
    as a lessee. Since the rationale for the rule
    imposing liability on the possessor of property is
    based upon the superior knowledge and control on the
    part of the possessor, it necessarily follows that
    when the control of the premises is turned over to an
    independent contractor for the performance of the
    construction contract, the owner-contractee is not
    liable for the acts of negligence of the contractor or
    his employees and subcontractors.
    Id. at *5 (citation omitted).
    8
    remove the material from the roof does not indicate that Mr.
    Holden undertook to control the condition on the roof in his
    capacity as one of the owners.   It is more logical and reasonable
    to find that Mr. Holden was acting for the entity that was
    responsible for repairs under the lease, and of which he was the
    president, i.e., the employer.
    The plaintiff also asserts that the general rule does
    not apply because the owners had a continuing duty to ensure the
    structural integrity of the roof.      There is authority for the
    proposition that, absent a contractual provision to the contrary,
    a landlord has an obligation to make structural changes and
    improvements “which are permanent and extensive and add
    materially to the value of the property.”      Taylor v. Gunn, 
    227 S.W.2d 52
    , 55 (Tenn. 1950).   However, the plaintiff’s reliance on
    this rule as justification for holding the defendants liable
    under the circumstances of this case is misplaced.      The
    assumption underlying this argument is that the dangerous
    condition here was the roof itself.      We do not think this is a
    fair characterization.   Rather, the dangerous condition was the
    accumulation of dust and tire shavings on the roof that, left
    unattended to over time, caused the roof to collapse.      Thus, the
    employer, and not the owners, was responsible for the creation of
    the dangerous condition.   Therefore, this exception does not
    apply to the facts of this case.
    Finally, the plaintiff argues that the general rule
    does not apply because of the inherently dangerous activity that
    was being conducted on the property.      In support of this
    position, Lethcoe relies on Hutchison v. Teeter, 
    687 S.W.2d 286
    (Tenn. 1985) and International Harvester Co. v. Sartain, 222
    
    9 S.W.2d 854
     (Tenn.Ct.App. 1948) for the proposition that, where a
    landowner conducts an inherently dangerous activity, the
    landowner has a non-delegable duty to “exercise caution adequate
    to the peril involved, as for example, in giving notice of its
    dangerous character.”     Sartain, 222 S.W.2d at 867; see also
    Hutchison, 
    687 S.W.2d at 288
     (“the general principles governing
    the additional responsibility of a landowner to persons lawfully
    on the premises, such as employees of subcontractors, where the
    landowner conducts an inherently dangerous activity, are
    correctly set out in [Sartain]”).      This is an accurate statement
    of the law; but it is not applicable to the facts of the instant
    case.     Assuming arguendo, that a tire recapping facility is an
    inherently dangerous activity -- a premise that is certainly not
    shown by the facts of this case -- the owners leased the property
    to the employer; they did not operate the facility.     It was the
    employer that occupied the premises and operated the facility.
    For the foregoing reasons, we find that there is no
    genuine issue of material fact and that the defendants are
    entitled to a judgment as a matter of law.     Accordingly, the
    trial court’s grant of summary judgment to the defendants is
    affirmed, and this case is remanded for collection of costs,
    pursuant to applicable law.    Costs on appeal are taxed to the
    appellant, Lethcoe.
    __________________________
    Charles D. Susano, Jr., J.
    CONCUR:
    _________________________
    Herschel P. Franks, J.
    10
    ________________________
    D. Michael Swiney, J.
    11
    

Document Info

Docket Number: E1999-02319-COA-R3-CV

Citation Numbers: 31 S.W.3d 254, 2000 Tenn. App. LEXIS 153

Judges: Susano, Franks, Swiney

Filed Date: 3/15/2000

Precedential Status: Precedential

Modified Date: 11/14/2024