1 Rule 10 (Court of Appeals). Memorandum Opinion .— (b) The Court, with the

concurrence of all judges pa rticipating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPI NION," shall not be published, and sha ll not be cited or relied on for any

reason in a subsequent unrelated case. 1 

# FILED

Jan. 19, 1996 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTERN SECTION AT NASHVILLE

_____________________________________________________________________________ CHARLES N. DELATT

E, Davidson Circuit No. 92C-235 C.A. No. 01A0

1-9504-CV-0

0141 Pla intif

f/A ppel la nt. Hon. Barbara N. Haynes, Judge v. SOUTH MARK REALTY PARTNERS, LTD., d/b/a HICKORY LAKE APARTMENT COMMUNITY, Defendant/Appellee. DAVID S. GARDNER, Nashville, Attorney fo r Plaintiff/Appellant RICHARD D. MOORE, Levine, Mattson, Orr & Geracioti, Nashv ille, Atto rney for Defendant /Appellee
AFFIRMED Opinion Filed:

_____________________________________________________________________________ MEMORANDUM OPINION 1

_____________________________________________________________________________ TOMLIN, Sr. J. Charles N. Delatte ("plaintiff") fil ed suit in the Circu it Court of Davidson Coun tyagainst Sout

h Mark Realty Partners, Lt d. ("defe ndant") seeking damages for injuries sustained by him when a m etal hand ra iling on a stairway i n the comm on area of defe ndant 's ap ar tm ent co mple x co llap sed , c aus ing hi m t o f all. The trial court grant

ed defendant's motions for summary judgment. The sole issue presented by this appeal is whether the trial court was in error in so doing. For t he rea son s he rei n se t f

ort h, w e fi nd n o er

ror and aff irm.2 The underl ying facts are not in disp ute. Defend ant owned a large apartment

compl ex in Antioch, David son County. Plaintiff leased one of the apar tmen ts in 19 90 . InMay 1991, plaintiff f ell d own an exterior concret e stairway leading from a portion of the common area in front of his apartment

to t he parking lot below
. He contends that his fal l was caused w hen a metal hand rail ing on one side of the st

airway collapsed. Plaintiff's compl aint char ged def

end ant w ith comm on law negligence and negl igence per se in violation of T .C.A. § 66-28- 304(1) -(3)(1993), a portion of the Uniform Reside ntial Landl ord and Te nant Ac t (URLTA), and in vi ol ation of ce rta in pr ovisions of t

he Standard Building Code as incorporated into the Metropolitan Code of Na shvil le. T he trial court grant

ed plaintiff leave to file an amended complaint. Plaintiff added additional all egations

of neglige nce per se as wel l as a cl aim for intentional harm, seekin g punit ive damage s.

Defendant

in it ia lly f iled a mo tion fo r p ar tial s ummaryjudgment on the ground that

the ext erior stairway

leadi ng to it

s parking lot was not subject to t he provisions

of either t

he Housing Code or t he Standard Building Code as adopted byMetropolitan Nashville. The trial court g ranted defendant's mot ion, dismissing plaintif f's allegations to the effect t hat defendant

was guilty

of neglige nce per se for violating sections of t he Building Code as

adopted by Metr

opolitan Nashville.

On N ovember 4

, 1994 a furt her hear

ing was held by

the t rial co urt o n defendant

's mo tions

for p artia l s

um mar y jud gme nt and for s um mar y jud gme nt. The trial court dismissed with prejudice plaintiff's claims of negligence pe r se a s wellas h is c laim for punitive damages. This order of t he court read in part as follows:

It

a ppears to t

he Court, af

ter considering t

he entire record in this case, and after considering the a rguments and representat ions made in court by counsel for the respective parties, that the plaintiff,3 Charles Delatt e, conce des tha t his c laims of neg ligence per se against the de fendant

and his claim fo r punit ive damage s agains t the defendant sho uld be dismis sed . (e mphasis added) Wherefore it

is ordered t

hat t he plaint

iff's claims of

negligence per se against the defendan t are hereby dism issed w ith prejudice
. It is further ordered t

hat plaintiff's claim for pu n itive damages against t

he defendant is also dismissed with prejudice.
The tria l court co ntinu ed the hearing on t he balance o f the issu es rem aining for two weeks for

the p urpose o f allowing plaint iff "addition al time t o produce evidence which might change the Court 's mind” to the eff

ect that defendant was entitled to summary judgment. At the subsequent hea ring, the t rial court granted summaryjudgment in favor of defendant on all remaining issues. This appeal followed.
Summaryjudgment should be granted only when 

### ? there is no genuine issue as to any mat

eri al fact

and th at t

he moving part

y is ent itled t o a judgmen t as a matter of law."T.R.C.P. 56.03; Byrd v. Ha ll , 847 S.W. 2d 208, 214 ( Tenn. 1993). The is sues that lie at the heart of evaluating a summary judgment motion a re: (1) whether a factualdisput

e exist s; (2 ) whet her t he di spute d fact

is materialto t

he out come of the case; a nd (3) whether the dispute d fact

creates a genuine issue for trial. Id . at 214. A n addition al iss ue i s wh ether

the m ovin g par

ty is e ntitl ed to judgme nt as a matter of law. Id . at 215
.
In ruli ng on a mo tion fo r su mmar y j udg men t, bo thth e t ria l court

and this court must consider the matter in the same manner as a motion f or a directed verdict made at the close of t he plaintiff's proof—i.e. , all the evidence must be viewed in the li ght mo st fa vo ra ble toth e o pp on ent toth e mo tion an d all le gitim ate conclusions o f fact mus t be dra wn i n f

av or of th e o pp on ent

. It is on ly when th ere is no dis

put ed issu e o f ma te ria l fa ct th at a s umma ry ju dgm ent

sho uld be granted by the trial cour t and affirmed by this court. Dani el s v. Wh ite4

Consolidat

ed Industries

, Inc. , 692 S.W.2d 422, 424 (Tenn. App. 1985).

I. THE NEGLIGENCE

PER SE ISSUES At a subsequent hearin g, the trial court consid ered the rem ainder of defendant

's summ ary judgme nt motions rele vant to the dismissal of allegations

of negligence per se, common law negl igence and pl aintiff's claim for punitive damages. It was

followi ng this hearing t hat t he trial court ent

ered the order hereinabov e re ferred to, wherein it stated t

hat plaintiff conceded t hat his negligence per se claims agai nst defend ant were without merit. This was an interlocutory order at that time and could have been modified by the t rial court upon moti on of

eithe r par

tyat any time prior to its becoming fin al. At no t ime did pl ain tiff c hal le nge this j udg me nt.

In his brief before t

his court, pl aintiff c ompletely ignores the holding of the trialcou rt on th is i ssu e. On the oth er h and , def end ant t

a kes the t

rial court’s judgment

for what it

say s, and argues to t his court tha t plaintiff has waived t his issue. This

content

ion is reinforced by the fa ct th at pla int if f c ho se n ot

tofi le a re ply brief to defendant

’s posi tion a s to this issue. Taking everything int o consideration, we are of the opinio n that plaintiff did waive this issue by t his inaction.

Wit hout in anywayrelenting from this conclusion, should this be considered a viable issue, we are of t he opinion th at it

is with out

merit. Rel ying on the opinion bythe mid dle s

ection of t

his court in Smith v. Owen , 841 S.W.2d 828 (T enn. App. 1992) , p laintiff contends t hat t he existence of a defect ive handrail (revealed by the fall) and an injury resulting therefro m will serve as a sufficient basis for a claim of neglig ence per se. Plaintiff’s reliance on Sm ith is misplaced. I n Sm ith , defendant

was foun d gu il tyof neglige nce per se on t hese fact

s: the b uilding code adopted by the Cit

y of Cookeville expressly prohibited the rent ing of a dwelling for living purp oses wit

hout a prior inspect ion t o ascert

ain t hat its c o ndition met5

certain standards spec ifie d in th e code. Id. at 829-3 0. The proof showed that defendant

did in fa ct

re nt th e p rem ise s inwhich p lai nt if f’ s ch ild sustained injuries withou t making suc h i nsp ect io n, an d t

ha t a n i nsp ect

io n wo uld have revealed the defect that caused the injur y. Id. at 829.

In so holding, the Sm ith court held that defendant, who had no actua l knowledge of the condit ion that caused the injury, was pu t on const ructive not

ice of his duty by virtue of the provisions in the Cookevill e buil ding code
. Id. at 831
. In order to recover under negligence per se in th is c ase , p lai nt if f wo uld be required to show the exist

ence of a genuine issue of mat erial fact

that defendant breached the duty of care impos ed on him by the URLTA. When faced with defendant ’s motion for summary judgment, this plaintiff did not do so. This

iss ue i s wi thout m eri t.

II. CO MMO N L

AW NE GLIGE NC E C LA IM Plaintiff cont ends that the t rial court erred in granting summary judgment as to his common law negl igence claims. This court has previously stat ed the rule of land lord pr

emises liabil ity:

As a general rule, th e la ndlord is not liable for injuries to the t enant caused by dangerous or defective conditions on t he leased premises unle ss the landlord knewor in the exercise of reasonable care and diligence should have known of t he danger

ous con dit ionat th e t ime he leas ed the premis

es.

Tedder v. Raskin , 728 S.W. 2d 343, 347 ( Tenn. App. 1987

). Where the landlord retains possession of a par

t of t he premises for use in common by different t enants, t

he landl ord is under a continuing duty imposed by law to exercise reasonable care to keep the comm on areas in good r epair and a saf

e condition. Id. at 347-4 8. Wh ile this du ty do es not require c onst

ant ca re and an inspect ion by the landlord, when he has actualor const ructive not

ice of a dangerous or d efective condi tion in an area under his

co nt ro l, he must act within a reasonable time to remedy t he6

condition. Id. at 348. Liability does not ensue until the landlord has notice, act ual or constructive, and a re asonabl e opportunity to repair the defect. Id.
Depositions

and affidavi ts filed in support of defend ant’s motion for summary judgment

establish that

defen dants did not have prior notice of an unsafe c onditio n of the handrail involved in plaintiff’s fall prior to t he fall itself. Plaintiff concedes

that defendant did not have actual notice of the corroded condition of the hand rail in qu esti on prior to pl ain tiff’ s ac cid ent.

Under the law of this

state, a moving party is entitled to summary judgment when th e no nmo ving part y cannot est

ablish an essential element of his case. Byrd v. Ha ll , 847 S.W. 2d 208, 213-16 (Tenn. 19

93). Aft er the part

ies seeking summary judgment

have made a properl y supported motion as in the case before us, the burden then shifts

to t he nonmoving party to set forth specifics fact

s, not legal conclusions, by using affidavit s or the discovery mat erials listed in Rul e 56.03, establishing th at

th ere ar e i nde ed d isp ut

ed, mat erial facts creating a genui ne issue that needs t

o be reso lved by t

he tr ier of f act and that a trial is, therefore, necessar

y. Id. at 215. The n onm ovin g par tymay not rely up on the all egations or the denial of

his pleadings in carrying out t his burden as mandated by Rule 56.05. Id. T he evide nce offered by the nonmoving party mu st be taken as true. Id. Moreover, th e f

act s o n wh ichth e n on movan t r elie s mu st

be adm iss

ib le a t t he tr ia l. Id.
Applying these principles to t he facts present

ed in this

appe al , we firs

t note tha t in connection with defendant ’s motion for summary judgment, it was established by deposition and affidavits that prior to plaintiff’s f

all on May 5, 1991, def end ants had no prior know ledge or notice of an unsafe condition of the handrailin question. Plaintif f concedes that

defendant

did not have actualnotice of the corroded con dition of the ha nd r

ail prio r to his accident. It thus beco mes7

incumbent

upon plaintiff

to esta blish tha t t

here is a genuine issue of mat erial fact as to whe ther defendant had c onstructive notice of t he unsafe condition of t his particula r handrail
.
The gene ral rul e in this j uri sdi ction as fa r as th e pre dic ati on of liabi lity on const ructive knowledge is a s follows:

If liability is to be predicat ed on constructive knowledge by the Defe nda nt, the proof mus t show the danger ous or defective condition existed for such length of time t hat the Defe ndant

knew, or in the exercise of

ordinary care should have known, of its exist ence. Worsham v. Pilot Oil Corp. , 728 S.W.2d 19, 20 (Tenn. 1987). Plaint iff relies upon the affi dav its

of Angie Fisher,Wilfred G allardo, and t he deposi tion testimony of defendant’s

mai ntena nce man , Davi d De vine , in a n attem pt to cre ate a genuine issue of material fact as t o whether defendant had const ructive not

ice of the defect in the handrail in plaintiff’s fall prior to t he fall itself. Plaintiff ’s reliance thereon is misplaced and in our opi nion doe s not creat e a genui ne issue of fac t. As for the af

fidavit of Angie Fisher, this aff ida vit f ails to comply with Rule 56.05 T.R. C.P. R ul e 56. 05 sta tes in part:
Suppo rting and opposing affi davits shal l be m ade on person a l knowledge, shall set fo rth su ch fact s as woul d be admissible in evidence, and shall show affirmatively that the affiant is compet ent to t estify t o the matt

ers stated t

herein.
Fisher’s affi dav it state s in part th at 

### ? the handrail which caused Mr. Delatte’s injury was def ect iv e a nd lo os

e a nd li ke lyto cause injury for at l east one week pri or to Mr. Delatte’s

fall.” This affidavit fails to meet the requirement

of Rul e 56. 05 se t forth above, in th at

th e co urt

ca nno t t

ell wh et her Fishe r p ers

on ally observed the de fect and did so at least one week prior to t he fall or whether she heard it for someone else or was simply repeating a rumor. In addition, t here is nothing inthe affidavit stating that

this s tat ement, as well as othe rs, were made upon her own personal8

knowledge.

Plaintiff offered the aff

idavit of Wil fred Gal la rdo , a ce rtifi ed s afetyspe cia li st, as an expert witness o n the is sue of the allegedly defective handrail design. Gallardo testif

ied that t

he defective design of t he handrail anchoring post s allowed wa ter to accumulate in the base o f the rail, which would resul t in corrosion if defendant did not proper ly inspect

and maintain the handrail. Plaintiff conte nds

Gallardo’s testimony is sufficient t o create a genuine issue of material fact on the quest

ion of construct

ive notice. The viabil ity of expert opinion affi dav its is controlled byTennessee Rul e of E vid enc e 703 . Thi s ru le states in pa rt that 

### ?[t]he court shall di sall ow

testimony in t

he form of an opinion or inf erence if the underlying facts

or da ta ind ica te a lack of trustwort hiness.” T.R.E. 703. Gallardo’s affidavit do es n ot

st at e t ha t it w as mad e up on an y p ers on al kno wle dge o r observation of defendant’s pr operty, and if so, when it was done. I t also r el ies upon the a pplication of ce rta in prov isions o f the Stan dard Building C ode which stands u nco ntr

adicted as inapplicable to outside st airways such as the one involved here. Furth erm ore, the ph otogr aphs sub mi tted w ith Gal la rdo ’s af fid avits were not authenticated in any way.
As for the deposit

ion of defendant’s maint enance man, David Devine, he gave no test

imonyto t

he effect t

hat any circumstances exist ed that sho uld have caused defendant

to be aware p rior

to the fall that somet hing was amiss with the handrail on the stairway down which plaintiff fell. To the cont rary, Devine stated that during the two a nd a half years he was employed by defendant, he knew of no comp lain ts

rec eived b y ma nag emen t o r ma inten ance staff regarding t his pa rt icu lar ha ndr ai l.

It is our opini on tha t the trial court properly grant ed summary judgment in favor of defe ndant

as to these issues. Accordingly, the judgment of t he trialcourt9

is affirmed. Cost in t

his cause on appeal are taxed toplaintiff, for whichexecution may issu e if necess

ary.

________________________________________

TOMLIN, Sr. J.

________________________________________ HIGHERS, J. (CONC URS)

________________________________________ FARMER, J. (CONC URS)