# FILED
November 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FOR PUBLICA

TION JOHN L. RICE, ) Filed: November 16, 1998 ) Appellee, ) ) HAMILTON CIRCUIT ) Vs. ) ) HON. WILLIAM L. BROW N, ) JUDGE VERONICA J. SABIR, ) ) Appellant. ) No. 03-S-01-9709-CV-00110

For Appellant: For Appellee: Samuel R. Anderson John D. McMahan Shane Usary G. Brent Burks David L. Moss McMAHAN & ASSOCIATES LUTHER-ANDERSON, PLLP Chattanooga, Tennessee Chattanooga, Tennessee



## O P I N I O N

COURT OF APPEALS REVERSED; JUDGMENT OF TRIAL COUR T REINSTATED . ANDERSON, C.J.1 As the Court of Appeals observed,the parti es have not rai sed any issues with regar d to the plaint iff’s w orke rs’ co mp ens ation theo ry. -2- In this premises liabil ity case, the issue is whether the owner of a hous e owed a duty of care to warn a c ontractor of the existence of mildew on the house roof upon which he had been hired to w ork and from which he fell and w as injured.
The trial court granted th e owner a summary judg ment, concluding that no duty of care was owed because the owner did not hire or authorize the hiring

of the contractor and because the independent con tractor was injured by an obvious, readily observable condition. The C ourt of Appeals reversed the grant of a summary judgment after concluding that a genui ne and material factual issue ex isted with respect to whether the owner hired or authorized the hiring of the contractor.
We agree with the Court of Appeals that a genuine and material factual issue exists with regard to whether the owner hired or authorized the hiring of the contractor. We nonetheless conclude that the owner did not owe a duty of care to w arn the contractor about the condition of the roof because the risk of harm was not reasonably foreseeable and the risk of harm did not outweigh the burde n of preventing the harm under the facts of this case. We therefore rever se the Court of Appeals’ judg ment and reinstate the judgment of the tri al court.

BACKGROUND The plaintiff contractor, John L. R ice, was seriously injured on July 22, 1994, when he slipped and fell from the roof of a house owned by the defendant, Veronica J. Sabir. The house was leased by Sabir to Gwenz ella Chandler, who had hi red Rice to trim trees away from the roof and to clean the gutters. Rice filed a complaint a gainst Sabir under negligence and workers’ compensation theories. 1

Defendant Sabir filed a motion for sum mary judgment. In her affidavit in support of the motion, Sabir asserted that s he owned a home on Hansley D rive in Chattanooga,2 There i s no in dication as to whether Jac kson in specte d the p remises or what acti on he took, if any. -3- Tennessee, which she leased to Gwenzella Chandler. On July 12, 1994, Chandler told Sabir about a “mildew pr oblem” in the house. On July 16, 1994, Sabir inspected the home and found mildew “in the lower story of the house.” Sabir contacted a contractor, Charles Jackson, to inspect the premises and “make w hatever repairs w

ere needed to correct the problem.” 2 Sabir asserted in her affidav it that she did not hire John Rice, authorize Chandler to hire Rice, or consent to allow Rice to perform any maintenance on the roof of the home.
In response to the motion for summary judgment, the plaintiff, John Ri ce, submitted an affidavit from Gwenz ella Chandler. Accordi ng to her affidavit, Chandler told Sabir about the “seri ous mildew problems” i n March of 1994, but no action w as taken. She told Sabir about the pr oblem again in July of 1994, and Sabir told her that the mildew inside the house was caused by trees hanging over the roof and clogged gutters. Sabir told C handler to get John Rice t o trim the trees away

from the roof and to clean out the gutters and to “ fix everything. ”
According to Rice’s affidavit, he was contacted by Gwenzella Chandler

in July of 1994 and asked “to get on the ro of of the Sabir property, and cut back the trees that were growing up and around the roof of that property.” As he began to work, Rice “fell off the Sabir roof because it was dangerous and excessiv ely slippery.” Rice further asserted:
The mildew accumulation in the Sabir residence had also

accumulated on the roof, thereby creating a hazard and defect on the roof that was unknown to me or Gwenzella Chandler. Veronica Sabir never w arned me or advised me that the roof of her proper

ty was dangerous and

that I shoul d not climb onto that roof to cut the trees aw ay from the roof. . . . The severe mildew accumulation on the roof of the Sabir property was not obv

ious to me nor was it r

eadily apparent to me under the circumstances. The slope of the roof was not such that it would be dangerous to walk upon it, if it had-4- not been in an unreasonably sl ippery and hazardous condition. . . .
Rice concluded that he wou ld not have attempted the maintenance work had he been warned that the re was

mildew on the r oof.
The trial court granted s ummary judgment to Sabir, find ing that “there was no relationship or authoriz ed repair or employment of John R ice by Veronica Sabir” and that “that condition of the roof cer tainly could be observ

ed by [Rice] with regard to mildew or any other defects that would be observed by anyone climbing on the roof.” The Court of Appeals determined that sum mary judgment was improper because Sabir and Chandler made conflicting factual assertions with regard to a mate rial fact, that is, the hiring of Rice. We granted this appeal and now reverse the Court of Appeals and reinstate the judgment of the tri al court.

LEGAL DUTY As we have f requentl y observed , a neglige nce claim requires a plaintif f to prove the following elements: ( 1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounti ng to a breach of the duty; (3) an injury

or loss; (4) causation

in fact; and (5) proximate causation. See , e.g. , Bradshaw v. Daniel , 854 S.W.2d 865, 86 9 (Tenn. 1993). The duty element is a questi on of law

requir ing the court t o determ ine “whether the inter est of the

plainti ff which has suffered invasi on was entitled to legal protection at the hands of the defendant.” Id . at 870 (quoting W. Page Keeton, Prosser & Keeton on Torts , §37 at 236 (5th ed. 1984)). Appellate review of a question of law is de novo. Bradshaw , 854 S.W.2d at 870.
In analyzing duty, the court must balance the foreseeability and grav ity of the potential risk of harm to a plaintiff against the burde n imposed on the defendant in protecting against that

harm. McClung v. Delta Square Ltd Partnership , 937 S.W.2d 891, 902 (Tenn. 1996). A “risk is unreasonable and giv es rise to a duty to act with due3 Although t he scope of the dut y formerly

depended on whether the plaintiff was a l icensee or invitee, that distin ction has been ab olished. Hudson v. Gaitan , 675 S.W .2d 699, 704 (Tenn. 1984 ). -5- care if the foreseeable probability and gravity of harm posed by defend ant’s conduct outweigh t he burde n upon de fendan t to engage in altern ative cond uct that would have prevented the harm.” McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995).
In a premises liability

case, an owner or occupi er of premises has a duty to exercise reasonable car e with regard to soc

ial guests or business

invitees on the premises. 3 The duty includes the resp onsibility to remov

e or warn against l atent or hidden d angerous conditio ns on the premises of which o ne was aware or should have been aware through the ex ercise of reasonable diligence. See Blair v. Campbell , 924 S.W.2d 75, 76 (Tenn. 1996); Eaton v. McLain , 891 S.W.2d 587, 593-94 (Tenn. 1994). Although the traditional r ationale for imposing this d uty was the owner ’s superior knowledge of conditions on the premises, see e.g. , Kendall Oil v. Payne , 293 S.W.2d 40, 42 (T enn. App . 1955), we recentl y held tha t a duty ma y exist even wh ere the in jurycausing condition is al leged to be “open and obvious ” to the plaintiff. We explained: That a danger to the plaintiff was ‘open or obvious’ does not , ipso facto , relieve a defendant of a duty o f care. Instead, the duty issue must be analy zed with regard to foreseeability and gravity of harm, and the feasibility and avai lability of alternative conduct that w ould have prevented the har m. The factors provided in the Restatement (Second) of Torts, § 343(A) relate directly to the foreseeability question; in short, if the

foreseeabil ity and gr

avity of ha rm posed from a defendant’s conduct, even if ‘open and obvious,’ outweig hed the burd en on the defend ant to en gage in alt ernative conduct to avoid the harm, ther e is a duty to act wi

th reasonable care. Coln v. City of Sav

annah , 966 S.W.2d 34, 43 (Tenn. 1998).
The duty imposed on the premises o wner or occupier, how

ever, does not include the responsibility to remove or warn against “conditions from which no unreasonable risk was to be antici pated, or from those which the occupier neither knew about nor could have discovered with reasonable care.” Prosser and Keeton on Torts , supra , § 61 at 426. In this regard, “the mere existence of a defect or danger is generally-6-

insufficient to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably conclude that due care would have discovered it.” Id . at 426-27. As we expl ained in Doe v. Linder Const. C o. , 845 S.W.2d 173, 178 (Tenn. 1992): Foreseeability is the test of negligence. If the injury which

occurred could not have been reasonably foreseen, the duty of care does not arise, and ev en though the act of the defendant in fact caused the injury, there is no negligence and no liability. ‘[

T]he plaintiff must show that the in jury was a reasonably foreseeable probab ility, not just a r emote possibility, and that some action within the [defendant’s] power more probably th an not would have prev ented the injury .’ (emphasis added) (citations omitted).

ANAL YSIS We begin our analysis and applicati on of the foregoing principl es by reviewi ng the standards applicable to s ummary judgment. A summary judgment is appropriate only if the moving par

ty shows that no genui ne and material factual issue ex ists and he or she is entitled to relief as a matter of law. In ruling on the motion, the court mu st consider the evidence in a light most favorable to the non-moving party and must allow all reasonable inferences in his favor. A summary j udgment may be proper, therefore , only “when there is

no dispute over the evi dence establishing the facts that control the application of a rule of law.” Byrd v. Hall , 847 S.W.2d 208, 214-15 (Tenn. 1993); Tenn. R. Civ. P. 56.
Plaintiff Rice argues, and the Court of Appeals agreed, that a genuine and material factual issue existed with regard to whether defendant Sabir either hired or authorized his hiring . Specifically, Sabir asserted that she did not hir e or authorize the hiring of Rice and did not know of his attempts to perform mai ntenance to the premises until after he was injured; whereas, Chandler stated that Sabir told her to get Rice to “fix everything” by

trimming trees and cleani ng the gutters. Sabir argues that regardles s of this factual dispute, the trial court correctly determined that she owed no dut y of care-7-

because Rice was an independent contractor who was injured by an “obvious, readily observable” condition.
We agree that a genuine and material factual i ssue existed with r egard to whether Sabir hired or authorized the hiring of Rice, but we disagree that a remand is necessary to resolve this factual issue. As discussed, traditional duty analysis entails balancing of the foreseeable gr avity of the potential r

isk of harm against the burden imposed on the defendant to prevent the harm. McCall v. Wilder , 913 S.W.2d at 153. This analysis applies e ven when the injury

-causing condition w

as purportedly open and obvious. See Coln , 966 S.W.2d at 43. When we apply this analysis, even assuming that Sabir had authorized the hiring of Rice, we conclude that no duty w as owed under the facts of this case.

We initia lly observe that the re is no indicatio n that Sabir had actual knowledge that severe mildew had accumulated on the roof or that it w as extremely slipper

y or any more dangerou s than normal. All of the eviden ce reflects tha t Sabir had knowle dge only of th e existenc e of mild ew inside the house. We also conclude that the condition of the ro of was not reasona bly discove rable with due care. Indeed, for Sabi r to have gained knowledge of the co ndition on the roof would hav e required her to conduct a self-inspection or to hir e another contractor for the pur pose of ensuring its safety prior to hiring Rice. As we recently observ ed in a similar case: [T]he policy of placing the risk of incurring physical harm during a repair job on a contractor holding himself or herself out as an expert in that w ork, as opposed to the lay premises owner, is not unjustified, at least as long as the owner does not will

fully or intentionally

harm the contractor. To hold otherwise woul d be to require the untutored owner to inspect the roof for defects before cal ling a roofing contractor; it would also require the own er to inspect the electrical box before emplo ying an electrici an. We do not believe sound public poli cy requires such an anomalous result . . . .4 Although Blair involved a c ontracto r who wa s injured b y the very con dition he wa s hired to repair, we believ

e these publi c policy

concerns are equal ly appl icable her e. -8- Blair , 924 S.W.2d at 78. 4 Having concluded that the condition of the roof was one that Sabir neither knew about nor could reasonably have discovered with due care, it therefore follows that it i s not probable that the injury was reasonably foreseeable and that no a ction of Sabir’s co uld more probably t han not h ave preven ted the in jury.
We emphasize that our analysis differs from tha t of the trial court, whi ch had observed that the condition of the roof was “obvious, readily observable.” As we said in Coln , 966 S.W.2d at 34, merely labeling the i njury-causing condi tion “open and obvious” does not end the inq uiry as to duty. Ins tead, the court must weig h the foreseeable risk and grav ity of harm against the bur den placed on the defendant to engage in a lternati ve conduc t which woul d have pre vented th e harm. He re, we conclude that the harm was not reasonably foreseeable and that no alternative conduct was required of the defendant.

CONCLUSION We conclude

that the defendant

owner owed no

duty of c

are to th e plaintiff contractor under the facts of this case because th e risk of harm was not reasonably foreseeable and did not outweig h the burden of preventing the harm from occurring. We therefore reverse the Court of Appeals’ judgment and reinstate the trial court’s judgment awarding summar y judgment to the defendant. Cos ts of this appeal are taxed to the pla intiff , John L. Rice, for which execu tion shal l issue if necessar y.

________________________________ RILEY ANDERSON, CHIEF JUSTICE
CONCUR: Birch, J Reid, Sp. J. DISSENT: Holder, J. - see separate Dissenting Opinion-9-

Drowota, J., not parti cipating