# FILED February 8, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

______________________________________________ WILLIAM H. LANCE, EMMA LEE LANCE, Plaintiffs-Appel

lants, Cheatham Circuit No. 4881 Vs. C.A. No. 01A01-9802-CV-00072 LARRY H. STREET d/b/a STREET CONSTRUCTION, Defendant-Appellee.

________________________________________________________ ____________________ FROM THE CHEATHAM CO UNTY CIRCUIT COURT THE HONORABLE ALLEN W. WALLACE, JUDGE

Grant C. Glassfor

d; Stokes & Bartholomew

of Nashville For Plaintiffs-App

ellants Warren M. Smith of

Nashville For Defendant-Appellee

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE This is a premises liability case. Plaintiffs-Appellants, William H. Lance and Emma Lee Lance, ap p eal the order of the trial court granting summary judgment to Defendant-Appellee, Larry H. Street d/b/a Street Construction.2 The facts as determined from the pretrial depositions of Lanceand Street are ba sically undisputed. Lance is a real estate agent, a nd on March 22, 199 6, was showing some clients houses in different subdivisions. The clients, while riding through the Tanglewood subdivision indicatedinterest in a

house that was under construction with a “for sale” sign in the yard. The property was owned by Street and was under construction at the time. Lance did not have a listin g for this particular property and the “for sale” sign in the yard indicated that the listin g agent was Oscar Jones , Jr. Lance and his clients decided t

o enter the house in

order to inspect, although there was no one else present on the property. It is customary for r

eal estate agen

ts to take clients onto property that is under construction, and Lanc e w as familiar with potential dangers at constr

uction sites. There were no doors installed on the property. The front porch had the foundation aroundit but was not completed, and it opened into part of the basement of t he house. Lance observed a board propped up from the ground to the top of the porch foundation and a second boardspanning the area from the foundation to the front doorw

ay. With his

clients behind him, Lance ascended the inclined board and after warning his clients to be careful, preli

minarily tested the spanning boar

d. Lance could

not see how the spanning board was attached, but he put his foot on that board and pressed slightly before he started out with his full weight on it. Assuming it was safe t o step on the board, Lance attempted to cross the board whereupon the boardslipped causing him to fall eight to ten feet into the basement sustaining serious personal injuries. At the time of the acc

ident, the house ha

d been roofed, f

ramed, and floor

ed, but it i s unclear whether the siding had

been completed. Steps had been constructed from the garage into the home, but Lance had not observed the steps and was not aware of their existence until after the accident. Neither Lance nor Street know who placed either of the boards where they were at the time of the acc

ident, but Street testifie

d that it is not unusual for boards to be used during construction for the purpose of entrance to the building. Street utilized several subcontractors for the various jobs during the construction but does not recall the subcontractors working before the accident that particular day. The complaint alleges that the defendant as the owner placed the subject property on the market on or before March 22, 1996, and that plaintiff, William Lance, a real estate agent, was3

showing the property to potential buyers at the time of the acc

ident. The complaint alleges that

accessto the front door of the house was provided by two boards - one providing a ramp to the front porch, and the second spanning the front porch. The complaint ave rs that defendan

t, his employees or

agents knew or

should have known of the dangerous condition, and defendant was negligent in failing to “safeguard” the premises. William Lance avers that he sustained pain and suffering from the injuries, permanent disability, lost earnings and earning capacity, and he incurred extensive medical expenses. Emma Le e Lance sues for

loss of consortium a

nd loss of services. Street’s answer denies the material allegations of the complaint and joins issue thereon and further avers t

hat plaintiff’s c

omparative faul

texceeds any fault on the part of defendant. The trial court granted defendant’s motion for summar y judgment. Plaintiffs have appealed, and the only issue o n appeal is whethe

r the trial court e

rred in granting summary judgment. A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party

is entitled to a judgment

as a matter

of law. Tenn. R. Civ . P. 56.04. The part y moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). Ona motion for summar y judgment, the cou

rt must take the stronges

t legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the movin g party that t

here is no genuine issue of material fact, the nonmoving party must then demonstrate, by a ffid avits or discover y materials, that t

here is a genuine, material fact disput e to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simpl y rely upon his pleadings but mus tset forth specific facts

showing that there is a genuine

issue of material

fact for trial. Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reaso

nably permit

only one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only question s of law are involv

ed, there is no pre

sumption of corre

ctness regarding a trial court's grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our4

review of the trial court

’s grant of summar

y judgment is de novo on the record before this Court. Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997). Lance contends that Street was under an affirmative duty to make sure the premises were safe especially in light of the fact that the house was for sale a nd that Street wa nted people to view the house in order to sell it. Furthermore, Lance asserts that the undisputed facts reveal that it was reasonably foreseeable that he would use the boards to enter the residence in that it was customary in the construction industry to provide acce ss such as this, in that the construction workers used the boards to enter the house,

and in that the stairs were not visible from the front of the house. Finally, Lance argues that Street should have foreseen that a person viewing the house would use the boards to gain entrance into the house. Thus, accordi ng to Lanc e, Street was under an obligation to make sure the boards provided safe access into the house. Street asserts that he did

not owe a duty to Lance to guarantee or insure his safety where, by his own admission, La nce was familiar

with the potential d

angers consisten

t with ho uses under construction, he failed to check for othe r entra nces into the house which would have revealed a completed set of stairs leading into the house, he was aware of the danger in walking up the boards in that h

e told his clients to be careful, he checked the boards to assure himself that they would

hold him up, and he was not distracted while walking up the boards. Street contends that to hold thathe owed Lance a duty to prevent this

particular accident would cast him in the roleof an insurer of L

ance’s safety.

Fi nal ly, Street asserts that he is entitled to summary judgmentin that no reasonable minds could conclude th at Lance was les s than fifty percent at fault under the circumstances of the case. In order to bring a successful suit based on a claim of neg li gence, the plain tiff must establish: (1) a duty of care owed by the de fendant to the plaintiff; (2)

conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause. Brads haw v. Daniel , 854 S.W.2d 865, 869 (Tenn. 1993) (citing McClenahan v. Coole y , 80 6 S.W.2d 767, 774 (Tenn. 199 1); Lindsey v. Miami Dev. Corp. , 68 9 S.W.2d 8 56, 858 (Tenn. 1985)). Duty, the first element of the claim, is the legal obligation a defendant owes to a plaintiff to conform to the re

asonable person

standard of car

e in order to prote

ct against unreasonabl e5

risks of harm. McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995). Whether a defendant owes

a duty to a plaintiff i

n any g iven situation is a question of law for the court. Bradshaw , 854 S.W.2d at 869. The existence and scope of the duty of the defendant in a particular case rests on all the relevant circumstances, including the foreseeability of harm to the plaintiff and other

similarly situated persons. Pittman v. Upjohn Co. , 890 S.W.2d 425, 433 (Tenn. 1994). In cases involving premises liability, the prem ises owner has a d uty to exercise reasonable

care under the circumstances to prevent injury to persons lawfully on the premises. Eaton v. McLain , 891 S.W.2d 587, 593 -94 (Tenn. 1994) . This duty wa s based upon the assumption that the owner has superior knowledge of any perilous condition that may exist on the property. Kendall Oil Co. v. Pay ne , 41 Tenn. App. 201, 293 S.W.2d 40, 42 (1955). Traditionally, liability was not imposed on a premises owner by courts of this state for injuries that resulted from defective or dangerous conditions that were “open and obvious.” See McCormick v. Waters , 594 S.W.2d 385 (Tenn. 1980); Kendall Oil Co. v. Pay ne , 41 Tenn. App. 201, 293 S.W.2d 40 (1955). However, the Supreme Court of Tennessee recently restricted this rule of law in Coln v. City of Savannah , 966 S.W.2d 34 (Tenn. 1998). The Coln Court held:

That a dange r to the plaintiff w as “open or obviou

s” does not, ispo facto , relieve a defendant of a duty of care. Instead, the duty issue must

be analyzed with regard to foreseeability and gravity of harm, and the fea

sibilityand availability of alternativeconduct that would have preve

nted the harm. The factors provided in the Restatement

(Second) of Tort

s, § 343A relate directly to the foreseeability

question; in short, if

the foreseeabi

lity and gravity of harm posed from a defendant’s con duct, even if “open and obvious,” outweighed the burden on the defe nda nt to engage in alternative con

duct to avoid the ha

rm, there is a

duty to act with reasonable

care. The circumstances of the case are then analyzed under comparati

ve fault. Id. at 43. T he Coln Court further stated that “summary judgment remains appropriate, for example, where the plainti ff has not produc

ed sufficient ev

idence to meet the ‘duty’ c

omponent, or any other component of a negligence claim, as a matter of law.” Id. at 44. The duty of a premises owner inc ludes the obligation of the owner to maintain the premises in a reasonably safe condition and to remove or war

n against latent or hidden dangerous conditions on the premises of which the owner is aware or should be aware through the exercise of reasonable diligence. Eaton , 891 S.W.2d at 593-94. The scope of a premises own er’s duty1 Even if we were to find a duty and the other components o

f negligence pre

sent in this case, the negligence of the plaintiff would, at a minimum, be at least equal to the negligence of the defendant

if notgreater, thus, precluding recovery on the part of the plaintiff. See McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992) (A plaintiff whose neglige nce is less t han that of a tortfeasor may recover damages reduced by a percentage of the plaintiff’s own negligence.). 6 is grounded upon the foreseeability of the risk involved. Jones v. Exxon Corp. , 940 S.W.2d 69, 72 (Tenn. App. 1996) . Thus, in order to p revail in a premises liabilit

y action, the plain

tiff must show that the injury was a reasonably foreseeable probability and that some action within the defendant ’s power mor e probably than not would have prevented the injury. Doe v. Linder Constr. Co. , 845 S.W.2d 173, 178 (Tenn. 1992). The condition of t he porch and the p resence of the b

oards did not crea

te a foreseeab

le probability

of harm to Lance especially in light of its open and obvious nature. The house where the accident occurred was under construction. The porchwas not yet completed, and the boards in question were utilized by construction workers for the purpose of constructing the house. The boards were not therefor the p urpose of allowing real estate agents or anyone else for that matter, except

construction workers, to gain access into the house. Thus, the harm to Lance was notreasonably foreseeable. Stre et did not inv ite or expect people, such as Lance, to use the boards to gain entrance into the house. This is evident by the fact that a complete set of stairs had been built in

the re ar of the house which were readily apparent upon inspection. Furthermore , the on ly thing Street could have done to prevent the harm was to complete the porch. Finally, it is neither fair nor feasib

le to impose aduty on Street to place warning signs

or to make sure there are no dangerous conditions on a construction site such as this which is by its very nature a dangerous place. Following the analysis in Coln , weighing the for eseeable risk a

nd gravity of harm

against the burden placed on the defendant in the process of home construction to engage in alternative conduct, we conclude that the harm was not re asona bly foreseeable and that no alternative conduct was required of Street. Accord Rice v. Sabi r , 979 S.W.2d 305 (Tenn. 1998). Under the circumstances presented in this c ase, we hold

that the defendant owed no duty to the plaintiff. Where there is no duty, there is no negligence. See Doe v. Linder Contr. Co. , 845 S.W.2d 173, 178 (Tenn. 1992). Thus, the tr ial court corre

ctly granted summary j udgment to the defe ndant. 17 Accordingly, the order of the tria l court is affirme

d, and the case

is remanded to the trial court for such further proceedings as may be necessary. Costs of appeal are assessed against the Appellants.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE