# FILED
May 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JOHN SIMMONS, ) ) Plaintiff/Appell

ant, )

) Montgomery Circuit VS. ) No. C10-92 ) JAMES RUSSELL, ) Appeal No. JAMES HOLL

EMAN, and ) 01A01-9709-CV-00467 FRANK McGREGOR, ) ) Defendants/Appel

lees. )



### APPEAL FROM THE CIRCUIT COURT FOR MONTGOMERY COUNTY AT CLARKSVILLE, TENNESSEE THE HONORABLE JAMES E. WA LTON, JUDGE

For Plaintiff/Ap

pellant : For Defendants/Appellees : Gregory D. Smi

th W. Timothy Harvey Clarksville, Tennessee Batson Nolan Brice Harvey & Williamson Clarksville, Tennessee Thomas R. Meeks Clarksville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N
This appeal involves a t enant who br oke his hip by falling dow n some snow and ice-covered stairs at an apa rtment complex in Cl arksville. The te

nant sued the owners of the apartment complex in the Circuit Court for Montgomery Co un ty, alleging thatthey negligently fail ed to clear the ice and snow from the stair way. The trial court entered a sum

mary judgment for th

e owners of the apar

tment complex,and the tenant appealed. We af

firm the summary j udgment because we have determined that the owners of the a

partment complex did not have a duty under the circumstances of this case to remo

ve the snow and ice f

rom the stairway w

here the tenant fe

ll.
I.
Mon tgomery County experienced a n intermittent snow a

nd ice storm from February 9 through February 11, 1994. The first sto

rm be gan and receded on February 9, and a seco nd s torm began the afternoon of February 10 and continued until the afternoon of Fe

bruary 11. These sto rms cr eated dangerous icy conditions and caused power out

ages throughout the coun ty.
John Simmons lived in an apartment at the Cambridge Square Apartmentsin Clarksville. The apartment w as on the second floor

of one of the units and was one of seventy-six apartm

ents in the complex. The stor

m on February 9, 1994 caused Mr. Simmons to lose power i n his apartment, an d thus he was without h

eat, lights, or power for cooking. By February 11, 1994, the apartmen t was, in Mr. Simmons’s words, “unbearably co ld.” Earlyon February 11, 1994, Mr. Simmons decid

ed to walk to the

grocery store to purchase food. He

had not been outside his apar

tment that day until he left

for the grocery store. Upon leaving his apartment, he picked up a small container of ro c k salt that he found outside hi s door and began desce nding the stairs to grou

nd level. He threw some of the s alt on a step and then slip ped and fell down the stairs, break ing his right hip. He was able to crawl to a first floor apartment to seek help. Even though an ambulance respo nded to the scene, M

r. Simmons decline

d to go to the hospital for several days. He wa s eventually admitted to Clarksville Memorial Hospital on February 13, 1994, and his fracture was repaired on February14, 1994.-3- In June 1994, Mr. Simmons sued the owners of the Cambridge Square Apartments. Eventhough he alleged that “the City of Clarksville [had] endured an ice storm of major propo

rtions,” he asser

ted that the

owners of the

apartment complex negligently

failed to clear

the apartment’s w

alkways and stairw

ays of snow

and ice. The trial court grante

d the owners’ motion for summary judgment, finding that they had no duty to remove the ic e and snow from the steps and no d uty to warn of the danger. Mr. Simmons appea led and argue s tha t summary judgment was improper because the defendants assum

ed the duty toremove the accumu lation of ice and

snow by placing rock sal t outside his doo r.
II. Summary judgments enjoy no pres umptionof correctness

on appeal. See City of Tullahoma v. Bedf

ord County , 938 S.W.2d

40 8, 412 (Tenn. 1997) ; McClung v. Delta Square Ltd. Partner ship , 937 S.W.2d 891,

894 (Tenn. 1996). Accordingly, we must make a fresh dete

rmination concernin

g whether the requirements of Tenn. R. Civ. P. 56 have been sat

isfied. See Hunter v. Brown , 955 S.W.2d 49, 50- 51 (Tenn. 1997); Mas on v. Seat

on , 942 S.W.2d 470,

472 (Tenn. 1997). Summary judgments are appropriate only wh

en there are no genu

ine factual disput

es withregard to the claim or defense

embodied in the motion and when the moving party is entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997) ; Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).
Courts reviewing summar y judgments must view t

he evidence in the lig

ht most favorable to the nonmoving party a nd must also draw all reasonable inferences in the nonmoving party’s favor. See Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); Mike v. Po Group, Inc. , 937 S.W .2d 790, 792 (Tenn. 1996). Thus, a summary judgment should be granted only when the undisputed facts reasonably support one conclusion

-- that the moving par

ty is entitled to a judgm

ent as a matter of law. See McCall v. Wil d er , 913 S.W.2d 150,

153 (Tenn. 1995); Carvell v. Bottoms , 900 S.W.2d at 26. A party may obt

ain a summary judgme

nt by demonstrating tha

t th e nonmoving party will be unable to provean essential eleme nt of its case, see Byrd v. Hall , 847 S.W.2d 208, 212-13 (Tenn. 1993), because the inability to prove an essential element of a claim necessarily renders all other fa cts imm aterial. See Alexander

v. Memphis Individual Practice Ass’n , 870 S.W.2d 278, 280 ( Tenn. 1993);-4-

Strauss v. Wyatt, Tarrant

, Combs, Gilbert & Milom , 911 S.W.2d 727, 729 (Tenn. Ct
. App. 1995).
III.
In order to bring a successful ne gligence action, a

plaintiff must

establish the followingelements: (1) a d uty o f care owed by the defendant to the plai

ntiff, (2) conduct falling below the standard of care amounting to a breach of that duty, (3) an injury or loss, (4) causa

tion in fact, and

(5) proximate cause. See McClung v. D elta Square Ltd. Partnership , 937 S.W.2d at 89 4; Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn. 1993). The first eleme nt of the claim, dut

y, is the legal obliga

tion that a defendant owes to a plaintiff

to conform to the re

asonable person stand

ard of care in order to protect against unreasonable risk s of harm. See McCall v. W il der , 9 13 S.W.2d at 153. Determining

whether a defendant owes a duty to a plaintiff is a question of law for the court to decide. See Blair v . Campbell , 924 S.W.2d 75, 78 (Tenn. 1996); Bradshaw

v. Daniel , 854 S.W.2d at 86 9. The existence

and scope

of the defendant’s duty in a particular case

rests on all the rel

evant factual cir

cumstances, includ

ing the foreseeability

o f harm to the plaintiff and o ther similarly situa

ted persons. The degree of foreseeability

necessary to give r

ise to a duty decreases as the magnitude of the foreseeable harm in creases. See Pittman v. Upjoh n Co. , 890 S.W.2d 425,

433 (Tenn. 1994); Doe v. Linder Cons tr. Co. , 845 S.W.2d 173, 178 (Ten n. 1992).
Persons in control of real pr operty have a duty to e

xercis e reason able care under the circumsta

nces to prevent

injury to persons lawfully on the premises. See Hudson v. Gaitan , 675 S.W.2d 699, 703 ( Tenn. 1984); Johnson v. EMPE, Inc. , 837 S.W.2d 62, 65 (Tenn. Ct.

App. 1992). This duty encompasses m aintaini ng the premises in a reasonably safe condition and includes inspecting and either removing or warning of dangerous conditions reasonably recognized by common experience and ordinary prude nce. See Blair v. Cam pbell , 924 S.W.2d

at 76; Eaton v. McLain , 891 S.W.2d

587, 593-94 (Tenn. 1994) ; Smith v. Inman R ealty Co. , 846 S.W.2d 819, 823 (Tenn. Ct. App . 1992). In order to prevail in a prem

ises liability a

ction, th e plaintiff must show that his or her injury wa s a reasonably foreseeable probability and1 See Coln v. City of Savannah , No. 02-S-01-9702-CV-00008, 1998 WL 139096, at *9 (Tenn. Mar. 30, 1998) (For Publication).

2 See Coln v. City of Savannah , 1998 WL 139096, at *9.
3 See Coln v. City of Savannah , 1998 WL 139096, at *9. -5- that “some action within

the [defendant’s] power more probab ly than not would have prevented the injury.” Doe v. Linder Cons tr. Co. , 845 S.W.2d at 178.
The Tennessee Supreme Court held recently that the f act that a dangerous condition was open and obvious does not, by itself, prev ent a plain tiff from recovering

in a premises liabil ity action. See Coln v. City of Savannah , ___ S.W.2d

___, ___ (Tenn. 1998). 1 Instead, a defen dant’s d uty with regard to an ope n and obvious danger must

be analyzed in

light of the foreseeability and gravity of the harm and the feasibility and availability of meas ures that could hav e prevented it. See Coln v. City of Savannah , ___ S.W.2d at __ _. 2 If the court finds t

hat a dutyexisted, then the surrounding circumstances are analyzed under the principle s of comparative f ault. See Coln v. City of Savan nah , ___ S.W.2d at __

_. 3
IV.
A landlord has a duty to remove na tural accumulations of

ice and snow from common areas within a rea s onable amount of ti me. See Grizzell v. Foxx , 48 Tenn. App. 462, 468, 348 S.W.2d 815, 817 (1 960). Quoting with approval from Goodman v. Corn Exchange Nation al Bank , 200 A. 642, 643 (Pa. 1938), the Grizzell court held that a landlord did not

owe a duty to remove snow and ice when the pr

ecipitation is recent o r conti nuous. The accumulation of ice and snow is one of “the normal hazards of life” for

wh ich no owner or occupier of the premises can be held liable. Liability will be imposed only when the person in control o f the premises allows th

e sn ow and ice to remain beyo nd a reasonable amou nt of time. See Grizzell v. Foxx , 48 Tenn. App. at 467-68, 348 S.W.2 d at 817. When conside

ring imposing liability for an accumulation of ice and snow, reasona ble care depends on,

among other things, (1) the length of time the accumulation h as been present, (2) the amount of the accumulation,(3) whether the accumulation could be, as a practical matter, remove d, (4) the cost of

removal, and (5)

the foreseeability of in jury. See Mumford v. Th omas , 603 S.W.2d 154, 156 (Tenn Ct. App. 1980).-6- Because the accumulation

of frozen precipi

tation in this case was both r

ecent and continuous, we find that the def endants did not

have a duty to remove

the ice and snow from the steps. Mr . Simmons’ s a ccident occurred r ight in the middle of a pproximately

twelve hours of fa

lling ice and snow. This is not a case in whic h a landlord improperly allowe d an accumulation to r

emain after a re

asonable length of time had passed for

removal. It woul

d not be feasible or f

air to impose a duty on a landlord to continuously remove ice and snow in t

he middle of an ongoing winter storm.
V.
Mr. Simmons also argues that the owners of t he Cambridge Squar

e Apartments assumed the duty of

clearing the stairs because they placed a small container of rock salt outside his door. While a party may assume a duty of car e b y undertaking a courseof action, see Gormanv. Earhart, 876 S.W.2d 832, 836 (Tenn. 1994); Nidiffer v. Clinchfield R. Co

. , 600 S.W.2d 242, 246 (

Tenn. Ct. App. 1980), Mr. Simmons has not se t forth suf

ficient facts to e stablish that the owne rs assumed the duty of removing ice and snow from the stairs during the winter storm.
Mr. Simmons’s affidavit opposing the summary judgment motion states that he disco vered a small container of rock salt beside his do or when he left his apartme nton February 11, 1994. He also states tha

t the container must have be e n placed there by the owner s of the ap artment complex because he observed similar small containers outside the doors of each apartment. Accordingly, he concludes that someonerepresenting the ow ners h ad bee n able to negotiate the stairway where

he fell and, therefore, must have known about the dangerous condition of the steps . Even if we were to take

these facts as tru

e, they are not suf

ficient to impose a duty on the o wners of the apartment c omplex to remove the snow and ice on the apartment stairway.
The owners of the apart men t complex were not undertaking to make th e premises safe when they pla ced small c ontai ners of rock salt out side their tenants’ doors. Rather, as an ac

commodation, they w

ere providing their

tenan ts with the means to make the premises safe once the pre cipitation stopped and

the temperature warmedsufficiently to enable the rock salt to accelerate me lting the snow and ice.-7-

The tenants had the responsibility to de termine when and ho

w to usethe rock salt. The undisputed facts

indicate that Mr. Simmons decided to sprinkle some of the rock salt as he was descendin

g the stairway rat

her than to steady him

self by holding on

to the handrail.
There is no evidence in the record that the owners of the apart ment comp lex had started removin

g the accumulated sn

ow and ice when Mr. Sim

mons fell on

the stairway. Thus, they had not voluntarily assumed the r espon sibility to make the walkways and stair

ways safe for the

ir tenants. Under the undisputed facts, the trial courtcorrectly determ

ined as a matter of

law that the owner

s o f the apart ment complex had not assumed a duty t o Mr. Simmons or the

other tena

nts to clear the walkways and stairways of snow and ice.
VI.
We affirm the summa

ry jud gmen t and remand the case to the trial court for whatev er a dditional proceedings may be required. We also tax the costs of this appeal to John Simmons and his surety for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

__________________________________ WALTER W. BUSSART, JUDGE