# FILED

June 30, 1999

Cecil Crowson, Jr.

Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________

WILLIE MAE VANN,

Plaintiff-Appella

nt,

Shelby Circuit No. 75667 T.D.

Vs. C.A. No. 02A01-9809-CV-00246

CALVIN HOWELL and

YOUTH VILLAGES,

Defendants-Ap

pellees.

________________

___________________________________________________________ _

FROM THE SHELBY COUN TY CIRCUIT COURT

THE HONORABLE JAMES E. SWEARENGEN, JUDGE

Lanier Fogg of Mem

phis

For Appellant

B. J. Wade, James F.

Horner;

Glassman, Jeter,

Edwards & Wade o

f Memphis

For Appellee, Youth Villages

John D. Richardson

, Teresa A. New

som;

The Richardson La

w Firm of Memphis

For Appellee, How

ell

AFFIRMED IN PART, REVERSED IN PART

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

DISSENTS:

ALAN E. HIGHERS, JUDGE

CONCURS:

DAVID R. FARMER,

JUDGE

This is a premises liability action. Plaintiff/appellant, Willie Mae Vann (Vann), appeals

the trial court’s ord er granting summary ju dgment to defenda

nts/appellees, Ca

lvin Howell

(Howell) and Youth Villages, Inc.1 Although Youth Villages rented offices on the third floor o

f the building, this

informational meeting was held in empty space on th

e second floor wi

th Howell’s permission.

2 Youth Villages is a priva

te, nonprofit orga

nization involved i

n placing troubled children

withfoster parents. It leases offices on the third floor in a building owned by Howell. On

January 28, 1995, Vann accompanied her daughter to a Youth Villages’s informational meeting.

This meeting was held in empty offices on the s e cond floor of the building. 1 The elevator

servicing the building had both a front and back door. The back door opene

d only when a button

inside the elevator was pushed. Following the meeting, Vann stepped onto the elevator, and she

moved to the rear of the elevator as people entered. Prior to the elevator moving, som eon e

unintentionally

hit the button which o

pened the rear

door. Vann fell t

hrough the opening and

was allegedly injured.

Vann filed suit against b

oth Howell and Yout

h Villages alleging the back elevator door

opening unexpectedly

c onstituted a dangerous condition which the defendants should have

remedied or warned against. Both defendants filed motions for summary judgment which the

trial court granted after a hearing. Vann filed a timely appeal and asks this Court to determine

whether summary judgment was appropriate.

A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and

that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party

, allow all reasonable inferences

in favor of that

party, and discard all countervailing evidence. Id. In Byrd v. Hall , 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving pa rty tha t there is no genuine

issue of material fact, the nonmoving party must then

demonstrate, by affidavits or d iscovery materia

ls, th at t here is a

genuine, material fact dispute to warrant a trial. In t his re gard,

Rule 56.05 [now Rule 56. 06] provides that t he nonmoving party

cannot simply rely upon his pleadings but must set forth specific

facts showing that there is a genuine issue o f materi al fact for

trial.

Id. at 211 (citations omitted) (emphasis in original).2 Vann cites several pr ovisions in the leas

e in which she cla

ims Youth Vill ages ha d

assumed various responsibilities to keep common areas in a safe and passable condition. After

examination of

the pertinent pro

visions, we have de

termined that Yout

h Villages did

not assume

control over common areas of the building.

3 Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of c

orrectness

regarding a trial court's grant of summary judgment. Bain

, 936 S.W.2d at 622. Therefore, our

review of the trial court

’s grant of summar

y judgment is de novo on the record before this Court.

Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997).

We f irst examine Vann’s claim against Youth Villages. S he asserts that Youth Villages has a duty to exercis e

reasonable care in keeping approaches to the business, including the eleva tor, in a safe condition. Vann spends muc h

of her brief arguing th

at possessors of property have a duty of reasonable care to protect against d angers on the premises

.

In the prese nt case, w e are not dealing with an injury that occurred on the leased premises, but one that occurred in a

common area lea

ding to Youth Village

s.

The existence of a duty is a question of law for the court. Blair v. Campbell, 924 S.W.2d 75 (Tenn. 19 96)

.

The trial court granted summary judgment on the basis that Youth Villages had no legal duty to Van n as a matter of law

.

The general law in this area is described in 26 Am. Jur. 2d Elevators and Escalat ors § 24 (1996):

A tenant who controls an ele

vator on leased premises is liable fo r

injuries resulting from n

eg ligent operation and management. If the tenant has sol e

con trol of the elevator, he, not the landlord, has the duty t o warn and protect th

e

persons whom he invites to use the elevator.

. . . However, if the tenan t

has no control over the e levator or its shaft, h

e is generally

charged wi th no duty to protect others on the premises

therefrom.

(emphasis added).

Under the terms of the lease no mention is made for the control of the common areas or the elevator. 2 B y

affidavit, Paula

Jones, Director

of Support Service

s at Youth Villages , states in pertine nt part:

6. This address is a commerc

ial office building cont

aining four floors. In th

e

offic e bui lding there are two elevators which serve the four floors. The elevator s

are not part of the l

eased premises pursuant to the Lease Agreement betwee n

Youth Villages, Inc. and H.P.I., Inc.

7. The elevators are part of the common area of the building for use by al l

tenants.

8. Youth Villages, Inc. did not lease or control either the elevator in J anu ary

, 1995, when the Plaint

iff all egedly was injured, nor has it leased or controlled th e

elevators at any other time.3 Inexplicably, plaintiff did not sue the landlord.

4 No other evidence was submitted concerning control over the elevator. From the evidence provided, i t is undispute

d

that Youth Villages did not exercise control over the elevator.

Vann asserts that this Court’s opinion in Roberts v. Tennessee Wesle yan College

, 450 S.W.2 d 21

,

60 Tenn. App. 624 (1969) imposes a duty upon Youth Villages to keep the elevator in a reaso na bly safe condition. I

n

Roberts

, plaintiff br

ought an action against a dance school and a college for injuries sustained when she fell on th e

steps outside a college auditorium temporarily leased by the dance school. The colle ge maintained control of th

e

entrance way including the steps where the accident occurred; yet the Roberts Court held that both the dance schoo l

and the college ha

d a duty to keep the approach in a reasonably safe condition. Id. at 25-26. As this Court noted i n

Gladman v. Revo Discount D rug Cntrs., Inc

., 669 S.W.2d 677 (Tenn. App. 1984), Roberts “simpl y

required the lessee to prov

ide reasonable ingress and egress.” Id. at 679

. In the instant case, as in Gladman

, Van n

was some distance from the approach to the Youth Villages premises. This case is not an ingress or egress situation.

While plaintiff argues that Roberts is persuasive, Gladman is more an alogous to the case at bar. I n

Gladman

, plaintiff filed suit against Revco for injuries suffered when he slipped and fell on ice in the parking lot. 3

The parking lot in question served a multiple stor e shopping center, and the court stated in pertinent part: “We do no t

believe that it would be reasonable to require a sin gle lessee to clean th

e entire parking lot of a multiple-store shoppin g

center in order to meet this ingress and egre ss requirement.” Id. at 679. Similarly, the presen t case concerns a

n

ele vator that services several bus

inesses located within the building owned by Howell. Youth Villages never assume d

responsibility or contr

ol of the elevator, and therefore we believe, as the Gladman Court did, that it w ould b e

unreasonable to impose a duty on Youth Villages to keep the elevator in a reasonably safe condition.

We must next determine whether summary judgment was appropriate as to Howell. The lease Youth Village s

and Howell entered into makes no mention of the control of the common areas o f the building; however, where th e

premises are leased to different tenants and certain areas are reserved for the use in c ommon of the different tenants

,

the landlord has a duty imposed by law to keep common passage ways in a safe condition. Woods v. Forest Hil l

Cemetery

, 192 S.W.2d 987, 991, 183 Tenn. 413, 424 (1946). Tennessee law regarding a la ndlord’s duty as t

o

common areas wa

s defined in

Tedder v. Raskin , 728 S.W.2d 343 (Tenn. App. 1987).

[W]here the landlord retains possession of a part of t he premises for use i

n

common by different tenan

ts, the landlord is under a continuing duty impos ed b y

law to exercise reasonable care to keep the common areas in good repair and saf e

condition.

. . . [A]lthough th

e landlord is by no means an insurer of his tenants ’

safety, Te nnessee common law has long held the landlord responsible for th e

condition of common

areas under his c

ontrol.5

Id . at 347-48.

The elevat or in the present case which serviced the ent ire building constitutes a common area. “A landlor d

who retains the control and management of an elevato r provided for the common use of his tenants may be resp onsibl e

for injuries to his tenants, their e mployees, and such other persons as ma y lawfully use the elevator.” 26 Am. Jur. 2 d

Elevators and Escalat

ors § 22 (1996).

The landlord’s duty includes the obligat ion to remove o

r warn against any dangerous condition on the premise s

of which landlord is aware or should have been aware through the exercise of reason able diligence. Eaton v

.

McLa in

, 8 91 S.W.2d 587, 593-94 (Tenn. 1994). As this Court noted in Oates v. Glenstone Lodge, Inc.

, No

.

03A01-9712-CV-00545, 1998 WL 251763 (Tenn. App. May 19, 1998):

Generally, “[a] risk is unreasonable and gives rise to a duty to act with due car e

if the foreseeable probability and gravity of harm po sed by defendant’s c onduc t

outweigh th e burden upon defendant to enga ge in alternative conduct that woul d

have p revented the harm.” McCall v. Wilder

, 913 S.W.2d 150, 153 (Tenn

. 1995).

Id . at *2.

It appears foreseeable that persons entering the elevator would move to the back of the elevator, dependin g

on the crowd on the elevator, and could be against the rear wall of the elevator, or, as in this case, the door of th e

elevator. The record reflects that there were no warning signs that the rear d oor was an operating doo

r. It also appear

s

from the record that the rear door could be locked, and that in fact the landlord had locked it for oth er floors on th

e

building.

In a few states, the owner and oper ator of an elevator also has a more stringent duty than that of reasonabl e

care. See 26 Am. Jur. 2d Elevators and Escalators §14 (1996). Tennessee is one such state which holds th e

ow ners and operators of elevators have an “obligation to passengers on elevators

. . . [that] is t he same as that of commo

n

carriers to passengers, and that they must use and exercise the high est degree of care and precaution.” Souther n

Bldg. & Loan Ass’n v. Lawson , 37 S.W. 86, 87, 97 Tenn. 367 (1896).

There is material evidence in this case that es tablishes that Howell, a

s owner and operator of the elevator i n

question, owed Vann the duty of a common ca rrier to keep the elevator in good repair and safe condition. Whethe r

Howell breached that duty to Vann, and if so, wh ether comparativ

e fault becomes part of the analysis are, in our opinion

,

issues to be decided by the jury and not the trial judge. See Oates v. Glenstone Lodge, Inc., No. 03A01-9712

-

CV-00545, 1998 WL 251763, at *1 (Tenn. App. May 19, 1998 ); Roberts v. Tennessee Wesleyan C ollege

,

450 S.W.2d 21, 26, 60 Tenn. App. 624, 634 (1969). Therefore, w e believe that summary judgment was inappropriat e

for the defenda

nt Howell.6 The o rder granting summary judgment to Youth Villages is affirmed, and the order gran ting summary judgmen

t

to Howell is reversed, and the case is reman ded for such further proceedings as are necessary. Costs of the appeal ar e

assessed one-ha

lf to appellee, Ho

well, and one-ha

lf to appellant.

_________________________________ W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCURS:

____________________________________ DAVID R. FARMER,

JUDGE

DISSENTS: ALAN E. HIGHER S, JUDGE