                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                                           FILED
                                                           November 16, 1998
JOHN L. RICE,                            )
                                         )
      APPELLEE,                          )                 Cecil W. Crowson
                                         )                Appellate Court Clerk
v.                                       )       NO. 03S01-9709-CV-00110
                                         )
VERONICA J. SABIR,                       )
                                         )
      APPELLANT.                         )



                           DISSENTING OPINION


      I respectfully dissent from the majority opinion. The majority agrees that a

genuine and material issue of fact exists with regard to whether Sabir hired or

authorized the hiring of Rice. This disputed issue of fact recognized by the

majority would normally require a remand to the trial court. Instead of

remanding, however, the majority of this Court performs an additional analysis to

balance the "foreseeable gravity of the potential risk of harm against the burden

imposed on the defendant to prevent the harm." The majority concludes that no

duty was owed to Rice even if Sabir had authorized the hiring of Rice. This

conclusion is inconsistent with the majority's statement that "[in] a premises

liability case, an owner . . . of premises has a duty to exercise reasonable care

with regard to social guests or business invitees on the premises."



       As stated in my concurring opinion in Coln v. City of Savannah, 966

S.W.2d 34 (Tenn. 1998), the majority's analysis encompasses the weighing

process that is normally reserved to the jury in negligence cases. This weighing

process is the prerogative of the jury unless reasonable minds cannot differ. The

majority's approach, however, does not determine whether reasonable minds
could differ in this case. It does not determine whether, as a matter of law,

Rice's negligence exceeded the negligence of the premises owner. Instead, the

majority proceeds to weigh the evidence and determines that the "condition of

the roof was one that Sabir neither knew about nor could reasonably have

discovered with due care." The majority, therefore, concludes that "it is not

probable that the injury was reasonably foreseeable and that no action of Sabir's

could more probably than not have prevented the injury."



       The stated reason for this conclusion is that "there is no indication that

Sabir had actual knowledge that severe mildew had accumulated on the roof or

that it was extremely slippery or any more dangerous than normal." It is clear

from her affidavit, however, that she knew that there was a moisture problem in

the lower story of the house. Her tenant, Chandler, states that Sabir told

Chandler that the mildew inside the house was the result of overhanging trees

and stopped-up gutters. Rice was hired to trim the trees and clean the gutters,

not to remedy a defect in the roofing system. Rice states that the mildew on the

roof was not obvious or readily apparent to him and that he used reasonable

caution while stepping on the roof.



       The reasonableness of the actions of the plaintiff and of the premises

owner and the knowledge of each would normally be questions to be determined

by the trier of fact. Many of these determinations include issues of credibility,

which are ill-suited for determination by summary judgment. Only if reasonable

minds could not differ should summary judgment be granted. I would grant

summary judgment only if I could find that Rice's negligence exceeded Sabir's as

a matter of law. On the strength of these affidavits, I cannot make that

determination.


                                          2
       The majority has weighed the evidence and made its own determination

of the facts presented. By doing so, the majority of this Court has not only

ignored the standards to be applied in summary judgment cases but also has

usurped the function of the trier of fact. I would affirm the Court of Appeals and

remand to the trial court to determine the relative fault of the parties.




                                           JUSTICE JANICE M. HOLDER




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