               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                August 7, 2013 Session

  GREG PARKER, ET. AL. V. HOLIDAY HOSPITALITY FRANCHISING,
                           INC., ET. AL.

                  Appeal from the Circuit Court for Roane County
                  No. 11CV5 Hon. Russell E. Simmons, Jr., Judge




              No. E2013-00727-COA-R3-CV-FILED-AUGUST 27, 2013


This is a premises liability case in which Plaintiffs alleged that a shower bench in Hotel
collapsed, causing Husband to fall and sustain injuries. Plaintiffs filed suit against
Defendant, claiming negligence. Defendant filed a motion for summary judgment, asserting
that he did not install the bench and did not have actual or constructive notice of the
independent contractor’s negligent installation of the bench. The trial court granted the
motion for summary judgment and dismissed the case. Plaintiffs appeal. We reverse the
decision of the trial court and remand for further proceedings.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and T HOMAS R. F RIERSON, II, JJ. joined.

William Richard Baker, Jr., Knoxville, Tennessee, for the appellants, Greg Parker and Diane
Parker.

Andrew J. Lewis and Brian H. Trammell, Knoxville, Tennessee, for the appellee, Shashi
Patel, individually and d/b/a S.P. Partnership d/b/a Holiday Inn Express.

                                        OPINION

                                  I. BACKGROUND

      The pertinent facts of this case are not in dispute. On May 12, 2010, Gary and Diane
Parker (collectively “Plaintiffs”) rented a room at Holiday Inn Express (“Hotel”) in
Harriman, Tennessee. Hotel was owned and operated by Shashi Patel, who was doing
business as S.P. Partnership, which was doing business as Holiday Inn Express (collectively
“Defendant”). Gary Parker (“Husband”), a paraplegic, requested a handicapped accessible
room. Upon entering the room, Plaintiffs noticed that the shower bench was not secured to
the wall. Husband requested a different room but was informed that another room was not
available. He submitted a maintenance request with a manager before he and Diane Parker
(“Wife”) left for dinner. Hotel dispatched a maintenance man, Craig Tyner, who inspected
the bench and tightened the bolts. Upon their return, Plaintiffs were advised that the bench
had been repaired.

       The next morning, Husband transferred himself onto the shower bench and began
showering. After approximately ten minutes, the bench collapsed, dropping him to the floor
and shattering several tiles in the bathroom. Wife helped Husband out of the bathroom.
Husband composed himself, dressed, and informed a manager of the incident. Plaintiffs were
transferred to another room without further incident. Days later, Plaintiff discovered that he
had sustained several compression fractures as a result of the fall.

      Following the accident, the parties learned that the bench collapsed because it had not
been properly attached to the inner wall structure. The improper attachment was concealed
behind Sheetrock, which was covered by a tile wall. Plaintiffs filed suit against Holiday
Hospitality Franchising, Incorporated doing business as Holiday Inn Express (“Holiday
Hospitality”); Holiday Inn Express, an unknown entity; and Defendant (collectively
“Defendants”). Plaintiffs alleged that Defendants

       were negligent in the construction, maintenance and installation of the [bench]
       and failed to use reasonable care while performing repairs and warranted that
       the bench had been repaired, when in fact it had not been repaired for its
       foreseeable use.

Plaintiffs claimed that Husband sustained injuries as a result of the incident and that they
were entitled to compensatory damages for Husband’s past and future medical expenses, loss
of quality of life, and physical pain and mental suffering and for Wife’s“loss of society,
services, care and consortium” from Husband. Plaintiffs also requested punitive damages.

        Defendants denied liability, asserting that Defendant “acted reasonably and with due
diligence” in maintaining the bench. Defendants raised the defense of comparative fault,
claiming that Plaintiffs failed to use due care in deciding whether it was safe to use the bench
and that D&S Builders, LLC (“Builder”) was negligent in either the construction or the
installation of the bench. With permission from the court, Plaintiffs added Builder as a party



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in an amended complaint. Builder filed a motion to dismiss, citing the applicable statute of
limitations and repose.1 The trial court dismissed the complaint against Builder.

        Thereafter, Defendants filed a motion for summary judgment. Defendants claimed
that the improper installation of the bench was a latent defect because it was hidden behind
Sheetrock and the tile wall. They believed they were entitled to summary judgment because
they had no “notice, constructive or actual, of the lack of proper blocking” that was
concealed by Builder, an independent contractor, and because they “did not control the
method and manner [Builder] used” in installing the bench. They likewise asserted that they
had no duty to inspect the work completed by Builder or to monitor the structural integrity
of the hotel. Holiday Hospitality additionally asserted that it was entitled to summary
judgment because it owed Plaintiffs no duty of care when it did not have an ownership
interest in the Hotel, control the day-to-day operations, own the property, or build the
structure. The trial court dismissed the complaint as to Holiday Hospitality and Holiday Inn
Express, an unknown entity.2 However, the case proceeded as to Defendant.

        In support of the motion, Defendant attached deposition testimony from several
witnesses and a statement of undisputed material facts. Husband testified in his deposition
that he had received disability benefits since 2004, when he injured his spinal cord and
became paralyzed from “about the belly button down.” He retained some feeling in his lower
extremities but could no longer walk or stand. Relative to the accident, he viewed a “gap
between the bracket of the bench and the wall” and discovered that the bench was loose when
he shook it. After reporting the problem, he and Wife left for dinner. When they returned,
he “[s]aw that [the bench] was bolted up flush to the wall like it should be.” He related that
it did not “shake or sound loose” when he “manually pushed” on the bench. He claimed that
on the morning of the accident, he only weighed approximately 200 pounds.

        Husband testified that while he did not feel immediate pain at the time of the accident,
he began to experience pain “[l]ate that afternoon, early evening.” He later learned that he
had sustained several fractures as a result of the accident. He also experienced pain, pressure
sores, and urinary tract infections and was forced to limit his physical activity.

      Wife confirmed Husband’s account and attested that she was standing near the
bathroom door when she heard a “crash” and Husband “yelling.” She then discovered



1
 Plaintiffs submitted a second amended complaint, requesting $200,000 in punitive damages. Defendants
objected to the filing of the second amended complaint, and the record does not reflect that the trial court
ever accepted the filing of the second amended complaint.
2
    Plaintiffs did not appeal this dismissal.
                                                    -3-
Husband, who appeared “distressed,” on the floor surrounded by tile. She opined that after
the accident, Husband was no longer able to help with household chores or engage in as
many physical activities and that their relationship was “strained” as a result of his inactivity.

       In an attached affidavit, Mr. Tyner attested that he was employed as a maintenance
man at Hotel. He stated that Husband’s complaint “was the only complaint we ha[d] ever
received about a shower bench.” His inspection of the bench “did not reveal obviously loose
bolts or any other problems.” Nevertheless, he “tightened the bolts that fastened the shower
bench to the wall” and then “pressed down on the bench” and found that “the bench did not
bow or move in any way.” When he left the room, “the shower bench appeared secure and
there were no obvious or visible problems associated with the bench.”

       Defendant attested, by affidavit, that other than Husband’s complaint, there had been
“no prior or subsequent instances of complaints, injuries or accidents at the [H]otel involving
a handicap shower bench.” He hired Builder but did not furnish any tools, labor, or materials
used by Builder and did not control the manner and method used by Builder. He relied upon
Builder to “construct the building in a reasonably safe manner, free from defects.”

       In his deposition, Defendant testified that he owned three hotels. He acquired the land
for each of the properties and hired builders to construct the hotels and managers to manage
each property. He hired Builder to construct Hotel and several of his other projects. He
never experienced problems with the shower benches at Hotel or in his other properties. He
personally hired Mr. Tyner, who had worked on a farm and “knew a little bit about
maintenance.” He sent him to the certification training required by Holiday Inn but never
provided additional training.

        Defendant testified that during the construction of Hotel, he believed he could have
suggested changes if he noticed any issues. He visited the property once or twice a week to
document the progress. He claimed that the architect, building inspector, and state fire
marshal were responsible for actually inspecting Builder’s work. He recalled meeting with
representatives from Holiday Inn, who also inspected the building on two occasions. He
stated that the representative who inspected the building prior to the opening walked through
each room. He insisted that the representative did not check the handicap benches and that
he also never personally checked the benches. He did not know whether anyone had used
the bench prior to Husband. He related that he was neither a certified builder nor an architect
and that his expertise was in managing people. While he did not inspect the bench prior to
the fall, he viewed the bathroom after the accident and was “surprised” that the bench was
not supported by anything other than molly bolts. He stated, in pertinent part,




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       I was surprised that, you know, there was nothing behind there because if there
       was something behind I’m sure the thing wouldn’t have fallen down. It’s like
       a curtain rod. If you just put a curtain rod in [S]heetrock more than likely over
       time it’s going to bend and break.

        Plaintiffs responded to the motion for summary judgment with a statement of
additional facts and by asserting that genuine issues of material fact precluded summary
judgment. Citing the Restatement (Second) of Torts and McHarge v. M.M. Newcomer &
Co., 100 S.W. 700 (Tenn. 1907), Plaintiffs argued that Defendant became liable for Builder’s
negligent installation of the shower bench once he resumed control of the premises. They
alternatively asserted that Defendant had a “duty to inspect the premise[s] while under
construction [and] after construction” and that genuine issues of material fact remained
regarding “whether that duty included the obligation to test the bench with adequate weight”
to ensure that it was properly installed and would support a 350-pound individual as
designed. They attested that Hal Deatherage, an engineer, would testify that the bench
collapsed because of “the failure to install the appropriate blocking . . . prior to the
installation of the [Sheetrock].” Mr. Deatherage would also testify that Defendant owed a

       duty to insure that the blocking was in place, and on information and belief,
       the individual(s) who inspected the construction to insure it was correctly
       blocked prior to the installation of the [Sheetrock] either failed to perform the
       inspection, or if inspected, the inspection failed to discover the lack of
       blocking which falls below the standard of reasonable care in the discharge of
       the inspection duties[.]

       Following a hearing, the court dismissed the complaint, holding that Defendant did
not have a duty to inspect Builder’s construction of Hotel and rejecting Plaintiffs’ contention
that Defendant was “strictly liable for injury caused by an independent contractor’s negligent
construction after the work [was] accepted” because Defendant did not have knowledge of
the negligent construction. This timely appeal followed.




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                                              II. ISSUE

        We consolidate and restate the issues raised on appeal as follows:

        Whether the trial court erred in granting the motion for summary judgment in
        favor of Defendant.

                                III. STANDARD OF REVIEW

        Summary judgment is appropriate where: (1) there is no genuine issue with regard to
the material facts relevant to the claim or defense contained in the motion and (2) the moving
party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P.
56.04. A properly supported motion for summary judgment “must either (1) affirmatively
negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving
party cannot prove an essential element of the claim at trial.” Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 9 (Tenn. 2008), superseded by statute, 2011 Tenn. Pub. Acts ch. 498 §§ 1, 3
(codified at Tenn. Code Ann. § 20-16-101).3 When the moving party has made a properly
supported motion, the “burden of production then shifts to the nonmoving party to show that
a genuine issue of material fact exists.” Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may
not simply rest upon the pleadings but must offer proof by affidavits or other discovery
materials to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the
nonmoving party “does not so respond, summary judgment, if appropriate, shall be entered.”
Tenn. R. Civ. P. 56.06.

        On appeal, this court reviews a trial court’s grant of summary judgment de novo with
no presumption of correctness. See City of Tullahoma v. Bedford Cnty., 938 S.W.2d 408,
412 (Tenn. 1997). In reviewing the trial court’s decision, we must view all of the evidence
in the light most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim
v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support
only one conclusion, then the court’s summary judgment will be upheld because the moving
party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,
529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).




3
 The Tennessee General Assembly legislatively reversed the Tennessee Supreme Court’s holding in Hannan.
See Tenn. Code Ann. § 20-16-101. The statute is applicable to cases filed on or after July 1, 2011. Thus,
in this appeal, we will continue to apply the summary judgment standard set forth in Hannan because the
complaint was filed on May 11, 2011.
                                                  -6-
                                     IV. DISCUSSION

       Plaintiffs assert that the trial court erred in dismissing the complaint because material
questions of fact remained regarding whether Defendant should be held strictly liable for
independent contractor’s negligence, whether Defendant’s failure to use reasonable care
prevented him from discovering the defective condition, and whether Defendant failed to use
ordinary care in maintaining the premises. Defendant responds that the trial court did not err
in dismissing the complaint because he was not strictly liable for independent contractor’s
negligence and because he used reasonable care under the circumstances.

       A plaintiff seeking recovery under a premises liability theory must establish the
elements of negligence. It is well settled in Tennessee that the elements of a negligence
claim include:

       (1) a duty of care owed by the defendant to plaintiff; (2) conduct by the
       defendant falling below the 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.

Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). In premises
liability cases, liability is imposed upon property owners due to their superior knowledge of
the premises. McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). However,
Tennessee follows the general rule that an “employer is not ordinarily liable for the
negligence of an independent contractor.” Carr v. Carr, 726 S.W.2d 932, 933 (Tenn. Ct.
App. 1986) (citing Potter v. Tucker, 688 S.W.2d 833, 835-36 (Tenn. Ct. App. 1985)); see
also Pryor v. Southbrook Mall, No. 02A01-9709-CV-00217, 1998 WL 802005, at *3 (Tenn.
Ct. App. Nov. 18, 1998) (recognizing the general rule of an employer’s non-liability for
negligence committed by an independent contractor).

      Plaintiffs argue that an exception to this general rule applies pursuant to the Tennessee
Supreme Court’s decision in McHarge. There, the Court stated,

       While the general rule of law is, as stated, that the proprietor or employer is
       not liable for the negligence of his contractor and the servants and assistants
       of the latter, yet there are well-established exceptions and limitations to it.
       These exceptions in general are: Where the act contracted to be done is
       wrongful or tortious in itself; where the injury is the direct or necessary
       consequence of the work to be done; where the thing to be done or the manner
       of its execution involves a duty to the public incumbent upon the proprietor or
       employer; when the work contracted for is intrinsically dangerous, and the

                                              -7-
       performance of the contract will probably result in injury to third persons or
       the public; and where the proprietor interferes with the contractor in the
       performance of the work. Nor does it apply when the work has been
       completed and accepted.

200 S.W.3d at 702 (citing 1 Jaggard on Torts, 231; Commentaries on the Law of Negligence,
§§ 645-651).

       Plaintiffs’ contention focuses upon the last McHarge exception, namely “when the
work has been completed and accepted.” Id. They argue that Defendant’s acceptance of
Builder’s work rendered him strictly liable for any injuries relating to the improper
construction of the premises. While Plaintiffs cited cases dealing with the other exceptions,
the particular exception at issue in this case has not been applied to any case in Tennessee.
However, a similar exception to the general rule of non-liability can be found in the
Restatement (Second), which provides, in pertinent part,

       A possessor of land who entrusts to an independent contractor construction,
       repair, or other work on the land, or on a building or other structure upon it, is
       subject to the same liability as though he had retained the work in his own
       hands to others on or outside of the land for physical harm caused to them by
       the unsafe condition of the structure

       (a) while the possessor has retained possession of the land during the progress
       of the work, or

       (b) after he has resumed possession of the land upon its completion.

Restatement (Second) of Torts: Negligence § 422. Despite similar language in McHarge,
section 422 of the Restatement (Second) has not been applied to any case in Tennessee.

       Whatever authority McHarge and the Restatement (Second) had on this issue in
Tennessee was removed by the Tennessee Supreme Court’s decision in Blair v. West Town
Mall, 130 S.W.3d 761 (Tenn. 2004). In Blair, the Court held that in addition to the elements
of negligence, a plaintiff must also establish:

       (1) the condition was caused or created by the owner, operator, or his agent,
       or (2) if the condition was created by someone other than the owner, operator,
       or his agent, that the owner had actual or constructive notice that the condition
       existed prior to the accident.



                                              -8-
130 S.W.3d at 764 (citations omitted). Thus, in Tennessee, a premises owner may not be
held liable for negligent construction of the premises unless he or she caused the condition
or had some notice of the condition prior to the accident.

        Plaintiffs contend that the condition was caused or created by Defendant because he
hired Builder to construct Hotel. Allowing recovery pursuant to that theory would obliterate
this state’s recognition of the general rule that employers are ordinarily not liable for the
negligence of an independent contractor and would be akin to adopting section 422 of the
Restatement (Second). We decline to adopt such a rule. Plaintiffs alternative theory appears
more plausible, namely that Defendant had constructive notice of the dangerous condition
that existed for approximately four years and that Defendant “could or should have become
aware of the [] dangerous condition through the exercise of reasonable care, such as testing
to assure that the shower bench would operate as designed and remain mounted to the wall
while supporting 350 pounds of weight, as it was designed to do.”

        “Constructive notice” is defined as ‘“information or knowledge of a fact imputed by
law to a person (although he may not actually have it) because he could have discovered the
fact by proper diligence, and his situation was such as to cause upon him the duty of
inquiring into it.”’ Hawks v. City of Westmoreland, 960 S.W.2d 10, 15 (Tenn. 1997)
(quoting Kirby v. Macon Cnty., 892 S.W.2d 403, 409 (Tenn. 1994)). If a third party caused
or created the dangerous condition, the plaintiff may prove constructive notice by evidence
that the condition “existed for a length of time” that the owner/occupier “in the exercise of
reasonable care, should have become aware of that condition.” Elkins v. Hawkins Cnty., No.
E2004-02184-COA-R3-CV, 2005 WL 1183150, at *4 (Tenn. Ct. App. May 19, 2005) (citing
Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)). A defendant may
be charged with constructive notice “if the fact or information could have been discovered
by reasonable diligence and the [defendant] had a duty to exercise reasonable diligence to
inquire into the matter.” Hawks, 960 S.W.2d at 15. By showing actual or constructive
notice, a plaintiff demonstrates that the owner had a duty to act reasonably under the
circumstances and remedy the condition that caused injury to the plaintiff. Blair, 130 S.W.3d
at 766.

        “In cases such as this where liability is based upon constructive knowledge of the
dangerous or defective condition, there must be material evidence from which the trier of fact
could conclude the condition existed for sufficient time and under such circumstances that
one exercising reasonable care and diligence would have discovered the danger.” Paradiso
v. Kroger Co., 499 S.W.2d 78, 79 (Tenn. Ct. App. 1973). In addition to considering the
length of time that the condition existed, one must also consider “the nature of the business,
its size, the number of patrons, the nature of the danger, [and] its location along with the
foreseeable consequences.” Id.

                                             -9-
       Here, the dangerous condition existed for approximately four years in a room that was
advertised to be handicapped accessible. The record reflects that at least some of the
handicapped accessible rooms had been rented prior to Husband’s stay and that the
handicapped accessible rooms were filled to capacity the night before Husband was injured.
The nature of the danger here was great given that the bathroom in question was designed
for handicapped persons who already suffered from various injuries or ailments that hindered
mobility and who would likely be more susceptible to further injury as a result of a fall.
Thus, it was reasonably foreseeable to Defendant that handicapped persons would use and
had likely used the accessible showers at some point since the opening of Hotel and that
injuries as a result of the failure of the requisite shower benches to work as designed were
likely. As the owner of the premises, Defendant was in the best position to prevent the
foreseeable danger by inspecting the benches to ascertain whether they performed as
promised. With these considerations in mind, we conclude that Defendant had a duty to
exercise reasonable care and diligence to ensure that the shower benches performed as
designed and that there was material evidence from which the trier of fact could conclude
that the condition existed for sufficient time and under such circumstances that one
exercising reasonable care and diligence would have discovered the danger. Accordingly,
we further conclude that the trial court erred in dismissing the complaint at this point in the
proceedings because material questions of fact remained. In so concluding, we express no
opinion as to whether Defendant actually had constructive notice of the dangerous condition
or breached the applicable duty.

                                    V. CONCLUSION

       The judgment of the trial court is reversed, and the case is remanded for further
proceedings. Costs of the appeal are taxed to the appellee, Shashi Patel, individually and
d/b/a S.P. Partnership d/b/a Holiday Inn Express.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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