                 IN THE COURT OF APPEALS OF TENNESSEE

                             AT KNOXVILLE                  FILED
                                                           March 15, 2000

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
                                           E1999-02319-COA-R3-CV
FRANCIS IONE LETHCOE, as      )    C/A NO. 03A01-9904-CV-00155
surviving spouse and next of  )
kin of Vernon Lethcoe,        )
deceased, for the benefit of  )
herself and JUSTIN CHARLES    )
LETHCOE, CHRISTOPHER VERNON   )
LETHCOE, CANDICE MISTY        )
LETHCOE, JIMMY JOE BEAR       )
LETHCOE, the surviving        )
children of Vernon Lethcoe,   )
                              )
       Plaintiff-Appellant,   )
                              )    APPEAL AS OF RIGHT FROM THE
                              )    MCMINN COUNTY CIRCUIT COURT
                              )
                              )
v.                            )
                              )
                              )
                              )
                              )
RICKY RAY HOLDEN and wife,    )
SHEILA MARTIN HOLDEN, and PAM )
KNOX and husband, VAN KNOX,   )
                              )    HONORABLE JOHN B. HAGLER,
       Defendants-Appellees. )     JUDGE




For Appellants                     For Appellees

ROBERT E. PRYOR                    GARY M. PRINCE
Pryor, Flynn, Priest & Harber      O’Neil, Parker & Williamson
Knoxville, Tennessee               Knoxville, Tennessee




                           O P I N IO N




AFFIRMED AND REMANDED                                       Susano, J.

          This is a wrongful death case.    Francis Ione Lethcoe

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sued the owners of the property on which her late husband, Vernon

Lethcoe (“the deceased”), was working when he was injured while
engaged in the business of his employer, Bain and Holden Tire
Company, Inc. (“the employer”).       The trial court held that the

owners of the property were not legally responsible for the
injuries and resulting death of the deceased.       It granted their
motion for summary judgment.   The plaintiff appeals, claiming

that the general rule of a landlord’s non-liability does not
apply to the circumstances of this case.


           The material facts of this case are not in dispute.
The defendants are the co-owners of the subject property.       On
September 1, 1991, they leased the premises to the employer for

use as a tire buffing and recapping facility.       In the lease, the
employer agreed that the premises were in a “good, clean, and

safe condition and repair” and agreed to maintain the property in
such a condition.


           The defendant, Ricky Ray Holden, in his capacity as

president of the employer, is primarily responsible for the day-
to-day operations of the employer.       He signed the lease as one of

the co-owners and also on behalf of the employer.       Two of the

other defendants are members of the employer’s board of
directors.   Mr. Holden is on the premises on a daily basis, while

the other three defendants are present on the property from time

to time.



           Dust and rubber shavings, as by-products of the
employer’s business, are removed to the outside of the building

through the use of a specially-designed exhaust system built into

the structure of the building.    This process often results in the


                                  2
accumulation of rubber dust and shavings on the roof.    Mr. Holden

arranges for the removal of the accumulated dust and rubber
shavings from the roof once a year, usually in the summer months.
He utilizes non-company labor and a non-company dump truck.    On

January 6, 1995, the roof collapsed from the accumulated
material, and the deceased died as a result of injuries received
in the accident.   Full worker’s compensation benefits were paid

to the deceased’s estate by the employer or its carrier.


          On January 5, 1996, the plaintiff filed this wrongful

death action against the defendants as co-owners of the property.
The defendants filed a motion for summary judgment on September
2, 1997, relying on the rule that a landlord is generally not

liable to a tenant or third party for harm caused by a dangerous
condition on the leased premises.    The trial court granted the

motion and later denied the plaintiff’s motion to alter or amend
the judgment.   The plaintiff now appeals, arguing that, under the
facts of this case, certain exceptions to the general rule of a

landlord’s non-liability are applicable.



          Since the facts in this case are not in dispute, our

only task is to decide whether those facts show that the

defendants are entitled to summary judgment.    See Rule 56.04,
Tenn.R.Civ.P.; Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993).



          Generally, a landlord is not liable to a tenant or a

third party for harm caused by a dangerous condition on the
leased premises.   Hester v. Hubbuch, 170 S.W.2d 922, 926

(Tenn.Ct.App. 1942); Roberts v. Tennessee Wesleyan College, 450

S.W.2d 21, 24 (Tenn.Ct.App. 1969); Whitsett v. McCort, 1990 WL

123943, *4 (Tenn.Ct.App. W.S., filed August 28, 1990).


                                 3
          The general rule of a landlord’s non-liability is

subject to several exceptions.     One exception applies if the
following facts are shown: (1) the dangerous condition was in
existence at the time the lease was executed; (2) the landlord

knew or should have known of the dangerous condition; and (3) the
tenant did not know of the condition and could not have learned
about it through the exercise of reasonable care.       Maxwell v.

Davco Corp. of Tennessee, 776 S.W.2d 528, 531-32 (Tenn.Ct.App.

1989).   As a natural corollary of this exception, when a landlord

and a tenant have co-extensive knowledge of the dangerous

condition, the landlord is not liable to the tenant, or the

tenant’s employees, for injuries sustained as a result of the

dangerous condition.   See id. at 532.



          With respect to this exception, the plaintiff argues
that “there is no question but that the dangerous condition pre-
existed the Lease and that the [owners] should have known of such
dangerous and unsafe condition.”       Even assuming arguendo that a
dangerous condition pre-dated the lease and that the owners knew
about it, the plaintiff’s argument ignores the third requirement

for application of the exception, i.e., that the tenant did not
have actual or constructive notice of the dangerous condition.
Under the facts of the instant case, it is clear that the

knowledge of the employer was equal to, if not greater than, the
knowledge of the property owners.       Thus, if the property owners
had actual or constructive knowledge of a dangerous condition on
the property, so too did the employer, i.e., the tenant, and this

exception to the general rule would not apply.      Hence, we find

that the undisputed facts do not implicate the subject exception.




                                   4
          In a related argument, the plaintiff asserts that the

general rule does not apply and that the owners are liable
because the property was unsafe for the purpose for which it was
leased.   She relies on the following facts to support this

argument: (1) the building was specially designed to serve as a
tire and recapping store; (2) the building included a special
exhaust system designed to remove rubber dust and shavings during

the recapping process; (3) the rubber dust and shavings often
created excessive weight on the roof of the building as they
accumulated there; (4) the premises were open to the public; and

(5) the owners of the property either knew or should have known
all of the foregoing facts.   The plaintiff argues that, because
the building was unfit for its intended use -- a tire and

recapping store open to the public -- the owners owed a
heightened duty to the employees of the tenant.   This duty was

breached, the plaintiff argues, when the roof collapsed, killing
the deceased.


          This argument is based on the plaintiff’s reading of

Stenberg v. Willcox, 33 S.W. 917 (Tenn. 1896).    She cites that

case in support of the following statement in her brief: “[i]t is
well-settled that when an owner of property leases the property
in a condition which would make it unsafe for the purpose for

which it is being leased because of a dangerous condition, the
owner/lessor will be liable.”   We have reviewed Stenberg and find

the plaintiff’s interpretation of the case to be flawed.



           It is true that Stenberg contains the following

language: “If the landlord lets the premises for a purpose which
he knows (or ought to know) it to be unfit for, knowing that

strangers will be invited there, it has been held that he is


                                 5
liable to them.”   Id. at 917.   But this statement is only a

partial articulation of the rule applied by the Stenberg court.

The rule, in its entirety, as stated by the court in Stenberg, is

as follows:



           if plaintiffs can recover at all in this
           case, it must be upon the ground that the
           landlord leased premises in a dangerous and
           unsafe condition, when he knew, or might, by
           the exercise of reasonable diligence and
           care, have known, of such unsafe condition,
           and upon the further ground that plaintiffs
           did not know of such unsafe condition, and
           could not have known of it by the exercise of
           reasonable diligence and care....



Id. at 917.   We do not believe that the rule announced in

Stenberg is materially different from the principle set forth in

the Maxwell case, 776 S.W.2d at 531-32, i.e., the landlord is

only liable if (1) the dangerous condition was in existence at

the time the lease was executed; (2) the landlord knew or should
have known of the dangerous condition; and (3) the tenant did not

know of the dangerous condition and could not have discovered it

through the exercise of reasonable care.   Therefore, we hold that
this exception does not apply to the instant case because, as

previously stated, the employer’s knowledge regarding the

dangerous condition was at least equal to that of the owners.


           Another exception to the general rule is implicated

where the landlord has negligently repaired the premises,

regardless of whether the landlord was under a contractual duty
to make repairs or whether it simply undertook to make the

repairs gratuitously.   Smith v. Tucker, 270 S.W. 66, 70 (Tenn.

1925).   The plaintiff argues that this exception applies because

Mr. Holden periodically arranged for the removal of the tire

shavings from the roof using neither employees nor personal

                                  6
property of the employer.    The plaintiff contends that the

removal of tire shavings amounted to a “repair” and that it was
done negligently, apparently because it was not done early
enough.    The plaintiff argues that she must be allowed to conduct

discovery to determine whether this negligent repair was done by
Mr. Holden in his capacity as president of the employer or in his
capacity as one of the co-owners.



            We are of the opinion that this exception also does not
apply.    The fact that Mr. Holden used neither company employees

nor company assets to remove the tire shavings from the roof is
irrelevant to the question of the capacity pursuant to which he
made the necessary arrangements to remove material from the roof.

Under the terms of the lease, the employer was responsible for
repairs.    It is not significant that Mr. Holden employed outside

help to remove the material from the roof.    This does not
indicate that the property owners, rather than the employer, were
performing the subject task.    We do not think that it is a

reasonable inference, based on the facts before us, that Mr.

Holden arranged for the removal of tire shavings from the roof in
his capacity as one of the owners.    Mr. Holden is the president

of the employer.    It is reasonable to assume that he was acting

in this capacity.    As previously noted, under the lease, repairs
were the responsibility of the employer.



            The plaintiff had ample opportunity to conduct

discovery in this case.    The complaint was filed on January 5,

1996.    The motion to dismiss was not filed until September 2,
1997.    The plaintiff then had until May 27, 1998, the date of the

hearing on the motion, to conduct discovery.    Therefore, the

plaintiff had more than sufficient time to do the necessary


                                  7
discovery.



            The plaintiff also asserts that the general rule does
not apply and that the owners are liable because, so the argument

goes, they retained control of the property.           In support of this
argument, she again points to the fact that Mr. Holden
periodically arranged for the removal of the accumulated material

from the roof using resources other than those of the employer.
Additionally, she notes that Mr. Holden is both an owner of the
property and the president of the employer, that two of the other

defendants are members of the employer’s board of directors, and
that, in addition to Mr. Holden being on the property almost
daily, the other three defendants were also on the property from

time to time.


            It is true that, because the general rule of non-
liability of a landlord is premised on the assumption that the
landlord is not in control of the property, a landlord may be

held liable where the landlord in fact retains control of the

property.    Cf. Whitsett v. McCort, 1990 WL 123943, *4

(Tenn.Ct.App. W.S., filed August 28, 1990).1          However, the owners
here did not retain control of the subject property.            As stated
previously, the fact that non-company resources were utilized to



  1
   In Whitsett, a case between a plaintiff-subcontractor and defendant-
landowners, we said

            the duty of the landowner concerning defects on the
            property may be and is delegable when the possession
            and control of the property is passed to another such
            as a lessee. Since the rationale for the rule
            imposing liability on the possessor of property is
            based upon the superior knowledge and control on the
            part of the possessor, it necessarily follows that
            when the control of the premises is turned over to an
            independent contractor for the performance of the
            construction contract, the owner-contractee is not
            liable for the acts of negligence of the contractor or
            his employees and subcontractors.

      Id. at *5 (citation omitted).

                                      8
remove the material from the roof does not indicate that Mr.

Holden undertook to control the condition on the roof in his
capacity as one of the owners.   It is more logical and reasonable
to find that Mr. Holden was acting for the entity that was

responsible for repairs under the lease, and of which he was the
president, i.e., the employer.


          The plaintiff also asserts that the general rule does
not apply because the owners had a continuing duty to ensure the
structural integrity of the roof.      There is authority for the

proposition that, absent a contractual provision to the contrary,
a landlord has an obligation to make structural changes and
improvements “which are permanent and extensive and add

materially to the value of the property.”      Taylor v. Gunn, 227

S.W.2d 52, 55 (Tenn. 1950).   However, the plaintiff’s reliance on

this rule as justification for holding the defendants liable
under the circumstances of this case is misplaced.      The

assumption underlying this argument is that the dangerous
condition here was the roof itself.      We do not think this is a
fair characterization.   Rather, the dangerous condition was the

accumulation of dust and tire shavings on the roof that, left
unattended to over time, caused the roof to collapse.      Thus, the
employer, and not the owners, was responsible for the creation of

the dangerous condition.   Therefore, this exception does not
apply to the facts of this case.


          Finally, the plaintiff argues that the general rule
does not apply because of the inherently dangerous activity that
was being conducted on the property.      In support of this

position, Lethcoe relies on Hutchison v. Teeter, 687 S.W.2d 286

(Tenn. 1985) and International Harvester Co. v. Sartain, 222


                                   9
S.W.2d 854 (Tenn.Ct.App. 1948) for the proposition that, where a

landowner conducts an inherently dangerous activity, the
landowner has a non-delegable duty to “exercise caution adequate
to the peril involved, as for example, in giving notice of its

dangerous character.”     Sartain, 222 S.W.2d at 867; see also

Hutchison, 687 S.W.2d at 288 (“the general principles governing

the additional responsibility of a landowner to persons lawfully

on the premises, such as employees of subcontractors, where the

landowner conducts an inherently dangerous activity, are

correctly set out in [Sartain]”).      This is an accurate statement

of the law; but it is not applicable to the facts of the instant

case.     Assuming arguendo, that a tire recapping facility is an

inherently dangerous activity -- a premise that is certainly not

shown by the facts of this case -- the owners leased the property

to the employer; they did not operate the facility.     It was the
employer that occupied the premises and operated the facility.


            For the foregoing reasons, we find that there is no
genuine issue of material fact and that the defendants are
entitled to a judgment as a matter of law.     Accordingly, the

trial court’s grant of summary judgment to the defendants is
affirmed, and this case is remanded for collection of costs,
pursuant to applicable law.    Costs on appeal are taxed to the

appellant, Lethcoe.


                                   __________________________
                                   Charles D. Susano, Jr., J.


CONCUR:



_________________________
Herschel P. Franks, J.



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________________________
D. Michael Swiney, J.




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