# FILED December 9, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

JOHN R . WHAL EN, ) C/A NO. 03A01-9707-CV-00246 ) Plaintif f-A ppella nt, ) MO RG AN CIR CU IT ) v. ) HON. RUSSELL SIMM ONS, ) J UDGE REUB EN RO BERT S and wife, ) JO E. ROBERTS, ) AFFI RMED ) AND Defendan ts-Appellees. ) REMANDED

JAM ES FR AN K W ILS ON , WIL SO N & BR OO KS , Wa rtburg , for P laintiff-A ppella nt. GEO RGE H. BU XTO N, III, BUXT ON LAW OFFIC E, Oak R idge, for DefendantsAppellees.

O P I N I O N Franks, J.

In thi s acti on for damages for pe rsonalinjuries sus taine d by the plai ntiff on defendants’ premises, the Trial Judge granted defendants’ motion to dis miss pursuant to T.R.C. P. 12.02( 6), and pl ainti ff has appeal ed. In the compl aint, plaint iff al leged that defendant s had damaged the door of thei r garage by

striking it

with their vehicl e, and cal led plainti ff, who was a rel ative , to repa ir the do or. Plain tiff cam e to de fend ants’ p remis es “an d w as attem pting to repair the door, when part of the garage door broke loos e, st

riki ng plaint

iff acr oss the fac e”, c aus ing serio us b odi ly injur y.2 In sust aining t

he motion t o dismis s, the TrialJudge sai d as a matt er of law that defendants had discharged any dut ies t hey owed to pl ainti ff as owners of t he pr em ise s, “ re ga rd les s o f w he th er he w as eit he r c om pe ns ate d o r se rv ed gr atu ito us ly, wh ile on the p rem ises t o un der take rep airs” .

It has long been hel d that t he owners or occupi ers of pr emises owe a duty to invitees to maintain the ir premises in a reas onably safe co ndition, and to w arn the inv itee of any dan gero us co ndition on th e prem ises. B ut there is an ex ceptio n to the rul e where the i nviteeis a r epairman who has been ca lled to the premi ses to make rep air. Shell Oil

Co. V. Banks , 3 30 S. W.2d569 (Te nn. App. 195 9) . Th e Su pr eme Court in Blair v . Cam pbell , 924 S.W.2d 75 ( Tenn. 1996), reaffi rmed the rul e in Banks , and q uoted with appr oval:

An exception to the general rule is recognized where the risks arise from, or are inti matelyconnected wit h, defect s of the premises or of machineryor appli ances loc ated thereon which the contra ctor has undertake n to repair. As t o contrac ts for such repai r work, i t is reasoned that t he contra ct is suffici ent in i tsel f to impart noti ce of a defect , the exten t of w hich th e repa irman mu st disco ver fo r hims elf. Th is is me rely to saythat oneassumes therisk of a known danger or of an undertaking wh ich is inh eren tly dan ger ous . Blair , p. 77. The Trial Court

reli ed on Blair , in di smissi ng the case . Plaintif f furth er argu es that h e sho uld h ave b een a llow ed to a men d his
co mpl ai ntaf

te r t he Tr ia l J udg e e nt er ed th e j udg men t d is mi ss in g thi s c as e. As we underst and plai ntiff ’s purported amendment, he sought t o aver that he had no particu lar exp ertise as a repairm an, an d w as no t gene rally enga ged in the rep air busin ess. W e do n ot reac h the iss ue of wh ether p laintiff s hou ld hav e bee n allow ed to
ame nd, be caus e the p laintiff w ould have been entitled to prov e the f acts he seek s to show by theamendment under thewording of the originalcomplaint . The exception in Blair , does not de pend u pon the e xpertise of the re pairman or lack thereo f. Rather,
as Blair notes, the contract i tsel f is suf fici ent to i mpart noti ce of the defe ctive conditi on to the i nvitee .3 For the foregoing rea sons we affirm the judgment of t he TrialCourt and
rema nd at a ppella nt’s co st.

__________________________ Herschel P. Franks, J. CONCUR:

___________________________ Houston M . Goddard, P.J.

___________________________ Hon. W illi am H. Inman , J.