FILED

January 28, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

ALLEN A. BOOZE and wife, ) C/A NO. 03A01-9803-CV-00095

DIANE BOOZE, ) 

) CUMBERLAND CIRCUIT

Plaintiffs-Appellants, )

) HON. JOHN A. TURNBULL,

v. ) JUDGE

)

FAIRFIELD COMMUNITIES, INC., )

d/b/a FAIRFIELD GLADE RESORT, ) AFFIRMED

) AND

Defendant-Appellee. ) REMANDED

JOHN PHILIP PARSONS, EDWARDS & PARSONS, Cookeville, for PlaintiffsAppellants.

JOE M. LOONEY, LOONEY & LOONEY, Crossville, for Defendant-Appellee.

O P I N I O N

Franks, J.

Plaintiffs’ ac tion against Fairfield Communities, Inc., d/b/a Fa irfield

Glade Resort (Fairfield), was dismissed by summary judgment, and plaintiffs have

appealed. It was alleged that Fairfield, acting as an innkeeper, rented room 5621

Country Club Villas, to the plaintiffs for a period from April 6, 1994 through April 9,

1994, which is a part of a town house unit owned by William E. Rueff and Margaret

L. Rueff. The complaint further alleges that Allen Booze started down the steps

leading from his room to the sidewalk and slipped on ice which had formed on the

steps, and the fall was due to the negligence of the defendants in failing to remove the

ice or warn plaintiffs about the condition. 
2

At the time of summary judgment, plaintiffs had dismissed the Rueffs

from the action with prejudice, and the remaining defendant’s summary judgment

motion was based upon the theory that defendant was under no duty to maintain the

premises where plaintiff fell, since it was owned by another entity. It states that the

Country Club Villas, Phase II, is a townhouse development created by Fairfield

Communities, Inc., and that a Tennessee non-profit corporation was created under the

name of “Country Club Villas II Property Owners Association, Inc.,” which serves as

administrator, manage r, and property owner’s a ssociation for the owners of property

in Country Club Villas, Phase II. The area where plaintiff fell is classified as “limited

common property”, and the property owners association is responsible for the

maintenance of this a rea. Thus, the defendant argues that it had no duty to maintain

the premise s where plaintiff fell, on the basis of an affidavit and documents filed with

the motion.

In response, plaintiffs argue that they made their reservation for the

Fairfield Glade Resort Inn or Motel in Cumberland County, Tennessee, and that when

they arrived they were told by the Fairfield reservation agent that the Inn was over

booked, and they were placed in the condominium unit. They further argue that they

were in privity of contract with Fairfield, and that Fairfield had the ultimate

responsibility to made sure the premises were safe and habitable.

While the plaintiffs made these allegations in response to the motion for

summary judgment, they did not offer any affidavit in response to the motion. The

Trial Judge , in granting summary judgment, obse rved that at the time of filing this

action plaintiffs were on notice that the townhouse units where they were staying was

not owned by the defendant Fairfield Communities, Inc.

When faced with a motion for summary judgment, a party “may neither

ignore it nor treat it lightly.” Byrd v. Hall, 847 S.W.2d 208 at 210 (Tenn. 1993). 
3

Once a party makes a properly supported motion for summary judgment, “the burden

then shifts to the non-moving party to set forth specific facts, not legal conclusions, by

using affidavits or the discovery materials listed in Rule 56.03 [now rule 56.04]

establishing that there are indeed disputed, material facts creating a genuine issue that

needs to be resolved by the trier of fact”. Id. at 215. 

In a negligence action, the plaintiff has the burden of proving: “(1) a

duty of care owed by the defendant to the plaintiff; (2) a brea ch of that duty; and (3) a

causal relation between the injury to the plaintiff and defendant’s breach of his duty of

care.” Shouse v . Otis, 224 Tenn. 1, 448 S.W.2d 673 (1969). Whether the defendant

owes the plaintiff a duty of care is a question of law. Bradshaw v. Daniel, 854 S.W.2d

865, 869 (Tenn. 1993). If no duty is owed to the plaintiff, then a grant of summary

judgment is appropriate, because there are not disputed material facts to submit to a

jury. See Marr v. Montgomery Elevator Co., 922 S.W.2d 526, 529 (Tenn. App. 1995). 

Defendant’s motion was supported by affidavit which established that

the Property Owner’s Association for the Country Club Villas Phase II, was

responsible for the maintenance of the premises where plaintiff fell, and not the

defendant. Upon evidence that defendant had no duty to maintain the premises, the

burden shifted to the pla intiffs to off er evidenc e establishing facts which would

establish a duty, not legal conclusions. Plaintiffs’ response to the motion for summary

judgment argued that defendant owed plaintiffs the duty to maintain, because the

defendant was an innkeeper and plaintiffs were guests of the innkeeper. Innke epers

owe a duty to their guests to keep the premises reasonably safe, and the duty is nondelegable, 40 Am.Jur.2, Hotels, Motels, Etc. §81. We find no authority to extend such

duty to premises owned and maintained by another party, absent the innkeeper’s right

to control such premises. Plaintiffs filed no supporting affidavits or depositions to

establish material facts. Instead, they relied solely on the assertions in the complaint
4

and other assertions of fact in their response. The opponent of the motion for

summary judgment may not rely on the allegations in their pleadings, but must

respond with affidavits or discovery material showing specific facts and material

issues for trial. See Rules of Civil Procedure, Rule 56.06; Byrd, 847 S.W.2d 215;

Dellinger v. Pierce, 848 S.W.2d 654, 656 (Tenn. App. 1992). Plaintiffs offered no 

material evidence disputing defendant’s evidence that it did not have a duty to

maintain the premises where the injury occurred.

Accordingly, we affirm the summary judgment granted by the Trial

Court and remand with the cost of the appeal assessed to the appellants.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.