# FILED
September 17, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

EDNA DAN

IELS, ) ) Plaintiff /Appella nt, )

) Davidson C ircuit ) No. 92C- 215 VS. ) ) Appeal N o. ) 01A01-9702- CV-00068 DAVID WAY

NE DAVIS, )

) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE WALTER C. KURTZ, JUDGE

For the Plaintiff/

Appellant : For the Defendant/Appellee : Keith Jordan Thomas F. Mink, II Nashville, Tennessee Keith W. Blair Nashville, Tennessee



## VACATED AND REMANDED

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

## O P I N I O N

This appeal involves a w oman who f ell down a

flight of ba sement sta

irs in her son ’s hom e. The

woman fi led suit aga

inst her son

in the Cir

cuit Court

for Davidson County alle ging that her i njuries were caused by the removal of a handrail and the obstr

uction of th e illumina

tion on the st airs. T

he trial c our t , relying on Eaton v. McClain, 891 S.W.2d 587 (Tenn. 1994), granted the son’s motionfor summa

ry j udgment

. The wom an assert s on this appe al that the existence of genuine factual disputes should have prevented granting a summary judgment. While the

facts in t

his case a

re essent ially undispu ted, we

have determined that the c onclusions to be drawn from the facts are not. Ac cordingly, we vaca te the summ ary judgme nt.
I.

In 1987 David Wayne Davis purchased a 25-year-old home on Ameri ca n Road in Nashville. He lived there with his mother, Edna Da niels, one of his two brothers, and his sister and her two children

. The home had an improved basement with an outside exit that was connecte d to the first flo or of the ho use by
asteep set of stairs. These st airs we re used freq uently to ent er and lea

ve the house. Mr . Davis installed a handrail o n the upper portion of t he stairs when he moved into the house

because h e was con cerned about the safety of his sister’s children

.
In mid-1991 Ms . Danie ls accept ed a job as a

care-t aker for

an elderly stroke victim and moved out

of Mr. D avis’s house . She took the job bec ause Mr. Davis needed additional funds to com plete th e renovat

ions on his house . Ms. D aniels still considere d Mr. Da

vis’ s hous e her permanent residence and visited there frequent ly on the we ekends.
Mr. Davis unde

rtook a numb er of home

improvementprojects w ith the help of his brother and other famil y members and frie nds. One of these pr

ojects involved rebuilding the basement stairs because several of the treads were weak and because his brother

told him tha

t t h e pitch of t

he stairs w as too stee

p. The-3-

projectincluded c hanging the p itch of the stairs and

adding four

additional steps, installing paneling a

nd trim in the stair well, r eplacing the carpet on the stairs, and building a bookcase

at the top of

the stair s. Ms. Daniels was aware that her son was rebu ilding the st airs, a nd she had ev en used the stairs dur ing construc tion.
Ms. Daniels arrived at Mr. Davis’s home for a we ekend

visit on November 2, 1991. Ea

rly the nex t morning, she decide d to do some groc ery shopping for the family’s Thanksgi ving din ner. Ms. Daniels lost he r footing a s she descended the stairs. She rea

ched instinc tively for

the handrail thathad been installed on the left of the stair s, but unbek

nownst to he

r, Mr. Davis had remove d the handrail in order to facilita te the re novations. Without the handrail to steadyher, Ms. Daniels f ell against the wall and then fe ll the res t of

the way down the stairs, injuring her right ankle and f

oot. No ot

her fami ly member s observed M s. Danie ls fall.
Ms. Daniels su ed Mr. D avis in the Circu it Court f or Davids on County in March 1992, alleging that the absence o f the handrail and the reduced i llumination
on the stair way resulting from the construction of the bookcase had caused her injuries and that Mr . Davis had neglige ntly faile d either toremove or to warn her of the dangerous condition. Mr. Davis moved for summary ju dgment, a nd on November

20, 1996, t

he trial c ourt, relying on Eaton v. McClain, 891 S.W.2 d 587 (Tenn. 1994), granted the motion because “the plaintiff proceeded down the st airs, which she was familia

r with and knew we re under c onstruction

and poorly lighted and can of

fer no exp lanation a s to why sheslipped.” Ms. Da niels perf ected this appeal.
II.
Decisio ns t o grant a su mmary judg ment do not e njoy the pre sumption of correct ness on appeal

. Carvell v . Bottoms, 900 S.W. 2d 23, 26 (Tenn. 1995). O ur task on appeals from summ ary judgme nts is to dete rmineindependently whether the moving part

y has satisf

ied the tw in requirements of T enn. R. Civ. P. 56. Hemb r ee v. State, 925 S.W. 2d 513, 515 ( Tenn. 199 6); Payne v. Breuer, 891 S.W.2 d 200, 201 (Tenn . 1994). Tenn. R . Civ. P. 56.03 requires a party se eking a summary judgment todemonstra te that the re are n o genuine disp utes conce rning the materia

l facts and that t hey are enti tled to a ju dgment as a matter of law. Bain1 The standards for adjudicating motions for summary judgment have frequently bee n

analogized

to the standards for adjudicating motions for directed v erdict or motions for judgment notwithstanding the verdict. Mike v. PO Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996); Speaker v. Cates, Co., 879 S.W.2d 811, 815 (Tenn. 199 4); Jones v. Exxon Corp., 940 S.W.2d 69, 71 (Tenn. Ct. App. 1997). -4- v. Wells, 936 S.W. 2d 618, 62 2 (Tenn. 199 7); Wyatt v. A-Best Co ., 910 S.W. 2d 851, 854 (Tenn. 1995 ). Summary judgments are not substitutes for tria

ls of dispute d factual

issues, Blocker v. Regional Medical Ctr ., 722 S.W. 2d 660, 660- 61 ( Tenn. 198 7 ), and shouldnot be used t

o find fac ts or to choo se betwe en various factual i nf erenc es thatmay be drawn fr om the facts

. Byrd v. Hall, 847 S .W.2d 2 08, 216 (T enn. 1993). The courts must view the evidence in the light most favorab le to the nonmov ing pa rty, Haynes v. Hamilton County, 883 S.W. 2d 606, 613 ( Tenn. 199 4) , and must draw all reasonable inferences in the nonmoving party’s favor. Pittmanv. Upjohn Co ., 890 S.W. 2d 425, 428 (Tenn. 1 994). Accordi ngly, cour ts shoul d grant a sum

mary judgm

ent only when the fact s and the co nclus ion s reasonably drawn f

rom the fa

cts support the conclusion t hat the movi ng party is entitled to a judgm ent as a matt er of law. McCall v . Wilder , 913 S.W. 2d 150, 153 (Tenn. 1995); Carvell v. Bot toms, 900 S.W. 2d at 26 . They s hou ld refra in from granting a summar

y judgment

if any unce

rtainty or doubt exists w ith regar

d to the facts or the conc lusions to be drawn fro m the facts. Byrd v. Hall, 847 S.W.2d at 211; Poore v. Magn avox Co., 666 S.W.2d 48, 49 (Tenn. 1984).
The nature an d scope of a person’s d

uty in p articula

r circum stances is a question of law. McClungv. Del ta Square Ltd . Partne rship, 937 S.W. 2d 891, 894 (Tenn. 1996); Blair v. Campbell , 924 S.W. 2d 75, 78 (Tenn. 1996). A ccordingly , amotion for

summary j udgment is a n appropria

te vehicle for dete rmining the existence and scope of

duty when t

he factua l circums tances ar

e not indispute

. See Nichols v. Atni

p, 844 S.W.2d 655, 658 (Tenn. Ct. App. 1992). In cases w here the undisputed facts de monstrate that bot h the plaintiff and defendant have been negligent, a motion fo r summar y judgment

may also provide the

court wit

h a vehicle for determining whether

the fault attributa

ble to the plainti ff was e qual to
or greater than thefault att

ributable to the defendant. See Eaton v. McClain, 891 S.W.2 d at 590 (dic tum recogniz ing a trial court’ s preroga tives in re sponse to a motionfor dire cted verd

i ct or a motion for

judgment notwithstanding the verdict). 1-5- III.
Homeowners owe a duty

to their soci al guests touse due ca re under a ll the circumst ances. Hudson v. Gaitan, 675 S.W. 2d 699, 703 (Tenn. 1984). T hey have
aduty to maint ain their p remises i n a reason ably safe condition, and this duty include s either r

emoving or w arning aga

inst latent dangerous c onditions on the premises that they knew or sho uld have k nown abou t. Eaton v. McClain, 891 S.W.2 d at 593-94; see also Smith v. Inman Realty Co., 846 S.W. 2d 819, 823 (Tenn. Ct. App. 1992). Owners and occupiers of property do not have a duty to protectinvitees from injuries that are not reasonably foreseeab le. See D oe v. Linder Constr. Co ., 845 S.W. 2d 173, 178 (Tenn. 1992). Si nce it is not reason ably foresee able thatinvitees w ill permit themselve s to be injur

ed by open an d obvious dangers, homeowne

rs do not have a duty

to warn i nvitees of

obvious dange

rous conditi ons. Eaton v. McClain, 891 S.W. 2d at 595.
The Tennessee Supreme Court has used these principles to absolve a homeowner

from lia bility for i njuries to a

guest who fell down basem ent stairs in the middleof the night

after m istaking the basement door for the bathroom door. The court re asoned that

it was not

reasonab ly forese eable tha t a guest in search of
abathroom i n the middle of t he night wou ld not turn on a light and w ould walk througha pitch bl ack doorway into an un familiar area. Eaton v. Mc Clain, 891 S.W.2 d at 595-96.
The undisputed facts re lating to Ms. Daniels’s fall depict circumstances far differe ntfrom those

existing in Eaton v. McClain. The stairs in this cas e were used f requently to enter and leave the house, even while they were bein g reconstr ucted. Accordi ngly, Mr. Davis shoul d have f oreseen t hat the per sons using the stair s might use the handra

il to steady

themselve s. Since

Mr. Da vis had
aduty to maintain these stairs in a reasonably safe condition, he had a duty either to provide a s uitable subs titute for the handra

il or to warn persons using the stairs thatthe handra

il h ad been re move d. There is no evidence in this case that Mr. Davis provided either.-6- The undisputed f

acts gleaned from the depositions of Ms. Daniels and Mr. Davis could perm

it a reas onable fa

ct-finde r to conclu de that both Mr. Da vis and Ms. Daniel s w ere negligent. Mr. Davis negligently failed to maintain the stairs in a reasonably safe condition w hile he wa s rebuildingthem; whi le Ms. Daniels negligently

failed to watch where she was going as she d es cended the stairs. WhileMs. Daniels’s c ase is razor thin, we cannot conc lude that th e only reasonabl e conclusion t

o be draw n from the

undisputed f

acts is that Ms. Daniels’s negligence was greater than Mr. Davis’s negligence . Since we canno t conclude
as a matter of l aw t hat the neg ligence a ttributabl e to Ms. D aniels outw eighs the negligence attributa

ble to Mr. Da

vis, we conclude th at the tri al court e rred by granting the summa

ry judgment

in this case . Under

the fact s of th is case, comparingthe fault of Mr. D avis and Ms. Daniels s hould be lef t to the jur

y.
IV.
We vacate t

he summar

y judgment a

nd remand

the case to the trial

court for further proceedi ngs consi stent with this op inion. We also tax the

costs of thi s appeal to David Wayne Davis for which execution, if necessary, may issue.

_____ ____ _________________

___ _ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_______________ SAMUEL L. LEWIS, JUDGE

_________________

_______________ BEN H. CANTRELL, JUDGE