FILED

May 20, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JOHN SIMMONS, )

)

Plaintiff/Appellant, )

) Montgomery Circuit

VS. ) No. C10-92

)

JAMES RUSSELL, ) Appeal No.

JAMES HOLLEMAN, and ) 01A01-9709-CV-00467

FRANK McGREGOR, )

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT

FOR MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE

THE HONORABLE JAMES E. WALTON, JUDGE

For Plaintiff/Appellant: For Defendants/Appellees:

Gregory D. Smith 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 tenant who broke his hip by falling down some snow

and ice-covered stairs at an apartment complex in Clarksville. The tenant sued the

owners of the apartment complex in the Circuit Court for Montgomery County,

alleging that they negligently failed to clear the ice and snow from the stairway. The

trial court entered a summary judgment for the owners of the apartment complex, and

the tenant appealed. We affirm the summary judgment because we have determined

that the owners of the apartment complex did not have a duty under the circumstances

of this case to remove the snow and ice from the stairway where the tenant fell.

I.

Montgomery County experienced an intermittent snow and ice storm from

February 9 through February 11, 1994. The first storm began and receded on

February 9, and a second storm began the afternoon of February 10 and continued

until the afternoon of February 11. These storms created dangerous icy conditions

and caused power outages throughout the county.

John Simmons lived in an apartment at the Cambridge Square Apartments in

Clarksville. The apartment was on the second floor of one of the units and was one

of seventy-six apartments in the complex. The storm on February 9, 1994 caused Mr.

Simmons to lose power in his apartment, and thus he was without heat, lights, or

power for cooking. By February 11, 1994, the apartment was, in Mr. Simmons’s

words, “unbearably cold.”

Early on February 11, 1994, Mr. Simmons decided to walk to the grocery store

to purchase food. He had not been outside his apartment that day until he left for the

grocery store. Upon leaving his apartment, he picked up a small container of rock

salt that he found outside his door and began descending the stairs to ground level.

He threw some of the salt on a step and then slipped and fell down the stairs, breaking

his right hip. He was able to crawl to a first floor apartment to seek help. Even

though an ambulance responded to the scene, Mr. Simmons declined to go to the

hospital for several days. He was eventually admitted to Clarksville Memorial

Hospital on February 13, 1994, and his fracture was repaired on February 14, 1994.
-3-

In June 1994, Mr. Simmons sued the owners of the Cambridge Square

Apartments. Even though he alleged that “the City of Clarksville [had] endured an

ice storm of major proportions,” he asserted that the owners of the apartment complex

negligently failed to clear the apartment’s walkways and stairways of snow and ice.

The trial court granted the owners’ motion for summary judgment, finding that they

had no duty to remove the ice and snow from the steps and no duty to warn of the

danger. Mr. Simmons appealed and argues that summary judgment was improper

because the defendants assumed the duty to remove the accumulation of ice and snow

by placing rock salt outside his door. 

II.

Summary judgments enjoy no presumption of correctness on appeal. See City

of Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn. 1997); McClung v.

Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996). Accordingly, we

must make a fresh determination concerning whether the requirements of Tenn. R.

Civ. P. 56 have been satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). Summary judgments

are appropriate only when there are no genuine factual disputes with regard 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 summary judgments must view the evidence in the light most

favorable to the nonmoving party and 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 party is entitled to a judgment as a matter of law. See

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms, 900

S.W.2d at 26. A party may obtain a summary judgment by demonstrating that the

nonmoving party will be unable to prove an essential element 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 facts immaterial. 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 negligence action, a plaintiff must establish the

following elements: (1) a duty of care owed by the defendant to the plaintiff, (2)

conduct falling below the standard of care amounting to a breach of that duty, (3) an

injury or loss, (4) causation in fact, and (5) proximate cause. See McClung v. Delta

Square Ltd. Partnership, 937 S.W.2d at 894; Bradshaw v. Daniel, 854 S.W.2d 865,

869 (Tenn. 1993). The first element of the claim, duty, is the legal obligation that a

defendant owes to a plaintiff to conform to the reasonable person standard of care in

order to protect against unreasonable risks of harm. See McCall v. Wilder, 913

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 869. The existence and scope of the defendant’s

duty in a particular case rests on all the relevant factual circumstances, including the

foreseeability of harm to the plaintiff and other similarly situated persons. The

degree of foreseeability necessary to give rise to a duty decreases as the magnitude

of the foreseeable harm increases. See Pittman v. Upjohn Co., 890 S.W.2d 425, 433

(Tenn. 1994); Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992). 

Persons in control of real property have a duty to exercise reasonable care

under the circumstances 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 maintaining 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 prudence. See Blair v. Campbell, 924 S.W.2d at 76; Eaton v. McLain,

891 S.W.2d 587, 593-94 (Tenn. 1994); Smith v. Inman Realty Co., 846 S.W.2d 819,

823 (Tenn. Ct. App. 1992). In order to prevail in a premises liability action, the

plaintiff must show that his or her injury was a reasonably foreseeable probability and
1

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 probably than not would have

prevented the injury.” Doe v. Linder Constr. Co., 845 S.W.2d at 178. 

The Tennessee Supreme Court held recently that the fact that a dangerous

condition was open and obvious does not, by itself, prevent a plaintiff from

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

___, ___ (Tenn. 1998).1 Instead, a defendant’s duty with regard to an open and

obvious danger must be analyzed in light of the foreseeability and gravity of the harm

and the feasibility and availability of measures that could have prevented it. See Coln

v. City of Savannah, ___ S.W.2d at ___.

2

 If the court finds that a duty existed, then

the surrounding circumstances are analyzed under the principles of comparative fault.

See Coln v. City of Savannah, ___ S.W.2d at ___.

3

IV.

A landlord has a duty to remove natural accumulations of ice and snow from

common areas within a reasonable amount of time. See Grizzell v. Foxx, 48 Tenn.

App. 462, 468, 348 S.W.2d 815, 817 (1960). Quoting with approval from Goodman

v. Corn Exchange National 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 precipitation is

recent or continuous. The accumulation of ice and snow is one of “the normal

hazards of life” for which no owner or occupier of the premises can be held liable.

Liability will be imposed only when the person in control of the premises allows the

snow and ice to remain beyond a reasonable amount of time. See Grizzell v. Foxx,

48 Tenn. App. at 467-68, 348 S.W.2d at 817. When considering imposing liability

for an accumulation of ice and snow, reasonable care depends on, among other things,

(1) the length of time the accumulation has been present, (2) the amount of the

accumulation, (3) whether the accumulation could be, as a practical matter, removed,

(4) the cost of removal, and (5) the foreseeability of injury. See Mumford v. Thomas,

603 S.W.2d 154, 156 (Tenn Ct. App. 1980).
-6-

Because the accumulation of frozen precipitation in this case was both recent

and continuous, we find that the defendants did not have a duty to remove the ice and

snow from the steps. Mr. Simmons’s accident occurred right in the middle of

approximately twelve hours of falling ice and snow. This is not a case in which a

landlord improperly allowed an accumulation to remain after a reasonable length of

time had passed for removal. It would not be feasible or fair to impose a duty on a

landlord to continuously remove ice and snow in the middle of an ongoing winter

storm.

V.

Mr. Simmons also argues that the owners of the Cambridge Square 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 care by undertaking a

course of action, see Gorman v. 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 set forth sufficient facts to establish that the owners 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 discovered a small container of rock salt beside his door when he left his

apartment on February 11, 1994. He also states that the container must have been

placed there by the owners of the apartment complex because he observed similar

small containers outside the doors of each apartment. Accordingly, he concludes that

someone representing the owners had been 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 true, they are not sufficient to impose a duty on

the owners of the apartment complex to remove the snow and ice on the apartment

stairway.

The owners of the apartment complex were not undertaking to make the

premises safe when they placed small containers of rock salt outside their tenants’

doors. Rather, as an accommodation, they were providing their tenants with the

means to make the premises safe once the precipitation stopped and the temperature

warmed sufficiently to enable the rock salt to accelerate melting the snow and ice.
-7-

The tenants had the responsibility to determine when and how to use the rock salt.

The undisputed facts indicate that Mr. Simmons decided to sprinkle some of the rock

salt as he was descending the stairway rather than to steady himself by holding on to

the handrail.

There is no evidence in the record that the owners of the apartment complex

had started removing the accumulated snow and ice when Mr. Simmons fell on the

stairway. Thus, they had not voluntarily assumed the responsibility to make the

walkways and stairways safe for their tenants. Under the undisputed facts, the trial

court correctly determined as a matter of law that the owners of the apartment

complex had not assumed a duty to Mr. Simmons or the other tenants to clear the

walkways and stairways of snow and ice. 

VI.

We affirm the summary judgment and remand the case to the trial court for

whatever additional 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