### FILED January 28, 19

99 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

ALLEN A. BO OZE and wife, ) C/A NO. 03A01-9803-CV-00095 DIANE BOOZE, ) ) CUM BERL AND CIRCU IT Plaintiffs-Appellants, ) ) HON. JOHN A. TURNBULL, v. ) JUDGE ) FAIR FIEL D CO MM UNIT IES, IN C., ) d/b/a FAIRFIELD GLADE RESORT, ) AFFIRMED ) AND Defendant-Appellee. ) REMANDED

JOHN PH ILIP PARSO NS, EDW ARDS & PARSON S, Cookeville, for PlaintiffsAppellants. JOE M. LOON EY, LOONEY & LOON EY, Crossville,for Defendant-Appellee.

O P I N I

O N Franks, J.
Plaintiffs’ ac tion against F airfield Co mmun ities, Inc., d/b/a Fa irfield Glade Resort (Fairf

ield), was di smissed by summary judgment, and plai

ntiffs have appealed. It

was alleged that Fai

rfield, 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 Will iam E. Rueff and Margaret L. Rueff. The complaint fur ther alleges

that Allen Booze st

arted down the steps leading from his r

oom to the sidewalk and sl ipped on ice which had formed on the steps, and the

fall was due to the negligence of the defe ndants in fail

ing to remove the ice or w arn plain tiffs ab out the c onditio n.2 At the time of summary judgment, plai

ntiffs had dismi ssed the Rueffs from the action wit

h prejudice, a

nd the remaining defendant ’s summary judgment motion was based upon the theor y that defenda

nt was under no duty t

o maintain the premises where plai

ntiff fell , since it

was owned by another enti ty. It states tha

t the Country C lub Villas, Ph ase II, is a tow nhouse d evelopm ent created b y Fairfield Communities, Inc. , and that a Tenness ee non-profit cor poration was creat

ed under the name of “Country Club Villas II Property Owners Association, I

nc.,” which serves

as administrato r, manage r, and prop erty owner’s a ssociation fo r the own ers of prop erty in Country Club Vil

las, Phase II . The area where plaint iff fell i s classifi

ed as “limited common property”, a

nd the property

owners association is responsibl e for the maintena nce of this a rea. Thus, th e defend ant argues th at it had no d uty to maintain the premise s where p laintiff fell, on th e basis of a n affidav it and docu ments filed with the motion. In response, plaintiffs ar gue that they

made their reser

vation for the Fairfield Glade Resor

t Inn or Motel in Cumberla nd County, Tennessee,

and that when they arri ved they were tol

d by the Fairf

ield reserva

tion agent tha

t the Inn was over booked, and they were pl aced in the condominium uni t. They furt

her argue that t

hey were in p rivity of contract w ith Fairfield, an d that Fairfie ld had the u ltimate responsibil

ity t o made sure the premises were safe and habitabl

e. While the plaint

iffs made these al

legations i

n response to the mot

ion for summary judgment, t

hey did not offer

any affidavi

t in response t

o the motion. The Trial Judge , in granting su mmary judg ment, obse rved that at the time of filing this action plai

ntiffs were on noti

ce that the t

ownhouse units where they were staying was not owned by the defendant Fairfield Communiti

es, Inc. When faced with a motion for summary judgment, a part

y “may neit

her ignore it nor

treat it lightly .” Byrd v. H all , 847 S .W.2d 208 at 2 10 (Te nn. 199 3).3

Once a party makes a prope rly support

ed motion for summary j udgment, “the burden then shifts t

o the non-moving party to set forth s

pecific facts , not legal conclusions, by using affidavit

s or the discover

y materials listed i

n Rule 56.03 [now rule 56.04] establishi

ng that there ar

e indeed disputed,

material fact

s creating a genui

ne issue that needs t o be res olved b y the trier of fact”. Id. at 215.

In a negligence action, the p laintiff has the burden of p roving: “(1) a duty of care owed b y the defendant to the plaintiff; (2) a brea ch of that duty; and (3) a causal relat

ion between the inj ury to the pl aintiff and defendant ’s breach of his dut y of care.” Shouse v . Otis , 224 Tenn. 1, 448 S.W.2d 673 (1969) . Whether the defendant
owes the plain tiff a du ty of care is a que stion of law. Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn . 1993). If no duty is owed to th e plaintiff, then a grant of sum mary judgment is appropr

iate, becaus e there are not disputed material facts to submit

to a jury. See Marr v. Montgomery Elevator Co. , 922 S .W.2d 526, 52 9 (Ten n. App . 1995)
.

Defendant’s motion was support ed by affidavi

t which establi shed that the Property

Owner’s Association for t he Country Club Villas Phase II, was responsible for

the maintenance of t

he premises where plai

ntiff fell , and not the defendant. Upon evidence t hat defendant had no duty to maintain t

he premises, t

he burden sh ifted to the pla intiffs to off er evidenc e establishing facts wh ich wou ld establish a duty, not legal conclusions. Plaintiffs’ respo nse to the motion for su mmary judgment argued that

defendant owed plainti ffs the duty

to maintain,because the defendant w as an innkeeper an d plaintiffs were guests o f the innkeeper. Innke epers owe a duty to thei

r guests to keep t

he premises reasonabl

y safe, and t

he duty is nondelegable, 40 Am.Ju r.2 , Hotels, Motels , Etc. §81. We find no aut hority t o extend such duty to premi ses owned and maintained by another party , absent the i nnkeeper’s right to control su ch premis es. Plaintiffs f iled no sup porting aff idavits or dep ositions to establish mat

erial facts. Instead,

they rel ied solely

on the asserti

ons in the complaint4

and other assert

ions of fact in t

heir response.The opponent of the motion for summary judgment may not rely on the allegations i n their pleadings, but must respond with affidavi

ts or discover

y material

showing specific fact

s and material issues f or trial. See Rules of Civil Procedure , Rule 56.0 6; Byrd , 847 S.W.2d 215; Dellinger v. Pi

erce , 848 S.W.2d 654, 656 (Tenn. App. 1992) . Plainti ffs offered no material evid ence dispu ting defen dant’s evid ence that it did not have a duty to maintain the pr

emises where the inj ury occurred. Accordingly,we affirm the summary j udgment granted by t he Trial Court and remand with the cost of the appeal assessed to the appellants.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.