                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    May 13, 2004 Session

             JEFFREY LYNN MILLER v. JERRY ELLISON, ET AL.

                     Appeal from the Circuit Court for Campbell County
                          No. 11,107    Conrad Troutman, Judge



                   No. E2003-02732-COA-R3-CV - FILED JUNE 30, 2004


Plaintiff, a customer who was injured when assaulted on the premises, brought action for damages
against the owners-lessors of the premises and others. The Circuit Court, Campbell County, Conrad
Troutman, Judge, dismissed the action as to the owners-lessors for failure to state a claim upon
which relief could be granted, and plaintiff appeals. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

H. DAVID CATE , SP . J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
CHARLES D. SUSANO , JR., J., joined.

David H. Dunaway, LaFollette, Tennessee, attorney for appellant, Jeffrey Lynn Miller.

J. Stephen Hurst, LaFollette, Tennessee, attorney for appellee, John D. Suttles and wife, Verda
Suttles.

                                             OPINION

       This action for personal injury damages was dismissed against John D. and Verde Suttles,
the owners-lessors of the property, for failure to state a claim upon which relief could be granted,
pursuant to Rule 12.02(6), Tenn. R. Civ. P.

       The pertinent averments in the complaint relating to the Suttles are quoted as follows:

                                         *   *   *   *   *

       (2)     . . . At all times mentioned herein, the Defendants, John D. Suttles and wife,
               Verda Suttles were believed to be the owners of the premises where the L &
               M Lounge was located.
(3)   This action is an action for personal injuries sustained by the Plaintiff when
      he was a guest and business patron at the L & M Lounge located at 5782
      General Carl Wade Stiner Highway . . . .

(4)   . . . That at all times mentioned herein, the plaintiff believes that the
      Defendants, Mike Slover and wife, Linda Slover, along with the Defendant,
      Luke Slover, managed or participated in the management of the L & M
      Lounge and otherwise controlled the common areas of said premises. At all
      times material to this action, it is believed that the Defendants, John D.
      Suttles and wife, Verda Suttles, were the owners of the property and had
      leased the property to the Slovers.

(5)   That at the time and place of the above-described injuries, the Defendants
      Slovers and Suttles, had a duty of exercising ordinary care for the safety of
      the Plaintiff while he remained on their premises including the duty of
      removing or excluding any person whom the Defendants knew or who in the
      exercise of reasonable care should have known would be dangerous to other
      persons. The Defendants also had a duty to remove and/or exclude those
      patrons from the premises which they knew or in the exercise of reasonable
      care should have known were dangerous to other persons and were bringing
      instrumentalities, including knives or firearms to said premises in the
      likelihood of risks or harm to others. That the Defendants, Mike Slover and
      wife, Linda Slover, and Luke Slover and the Defendants, John D. Suttles and
      wife, Verda Suttles, were negligent in operating and maintaining the L & W
      Lounge and failing to otherwise make safe the premises of the L & M Lounge
      and the Defendants knew or in the exercise of reasonable care should have
      known that there was a likelihood of risk to the Plaintiff. That the
      Defendants, Mike Slover, Linda Slover, Luke Slover, John D. Suttles, and
      wife, Verda Suttles, through their agents, servants, and/or employee, have
      violated the following statutes of the State of Tennessee which are
      incorporated by reference herein, and will be read in their entirety at the trial
      of this cause, to wit:

              T.C.A. Section 62-7-109 - Right of Owners to
              Exclude Persons From Public Places

              T.C.A. Section 68-14-602 - Right to Refuse Use of
              Lodging Establishment - Grounds

              T.C.A. Section 68-14-605 - Ejectment from Premises

(6)   That the violation of the foregoing statutes and the various conduct of the
      Defendants and/or their agents, servants, employees, and/or tenants, was the


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      direct and proximate cause of various serious personal injuries sustained by
      the Plaintiff.

(7)   That at the time and place of the injuries sustained by the Plaintiff, the
      Defendants had a duty of exercising ordinary and reasonable care for the
      safety of the Plaintiff while he remained on the Defendants’ premises,
      including the duty of removing or excluding any person whom the
      Defendants knew or in the exercise of reasonable care should have known as
      bringing onto the premises weapons and/or items which would cause
      likelihood of risk or harm to others. That the Defendants had a duty to
      protect their guests and business patrons from the misconduct of these
      persons.

(8)   That additionally, the Defendants were guilty of the following acts of
      negligence which acted as a proximate and/or concurrent cause of the injuries
      and damages sustained by the Plaintiff:

      (a)    The Defendants failed to exclude the Defendant Jerry Ellison,
             whom the Defendants knew or in the exercise of reasonable
             care should have known was dangerous to other person;

      (b)    The Defendants failed and refused to exercise a right of
             excluding the Defendant, Jerry Ellison, from its premises
             whom the defendants knew or in the exercise of reasonable
             care knew that the Defendant, Jerry Ellison, would cause
             harm to the Plaintiff;

      (c)    The Defendants failed and refused to protect the Plaintiff
             from the misconduct of the Defendant, Jerry Ellison; and,

      (d)    The Defendants failed to warn of dangers which they knew or
             in the exercise of reasonable care should have known to exist
             with regard to allowing the Defendant, Jerry Ellison, to
             remain on their premises.

(9)   That as a result of the Defendants’ failure to provide safe premises to the
      Plaintiff and as a result of the negligence of the Defendants as above-
      described, the Plaintiff, Jeffrey Lynn Miller, sustained serious and disabling
      injuries.




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                                                   I.

      In considering this appeal we review the lower court’s legal conclusions de novo with no
presumption of correctness. Tenn. R. App. P. 13(d); Southern Construction, Inc. v. London Bd.
of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

        In the case of Premium Finance Corp. of America v. Crump Ins. Services of Memphis,
Inc., 978 S.W.2d 91, 93 (Tenn. 1998) the court said: “This matter comes to us by way of a motion
to dismiss for failure to state a claim upon which relief can be granted. Such motion tests only the
legal sufficiency of the complaint. It admits the truth of all relevant and material allegations-- ‘ but
asserts that such facts do not constitute a cause of action as a matter of law.’ Pursell v. First Am.
Nat’l Bank, 937 S.W.2d 838, 840 (Tenn. 1996). Thus, courts ruling on such a motion must accept
the truth of all factual allegations. The inferences to be drawn from the facts or the legal conclusions
set forth in this complaint, however, are not required to be taken as true. Briggs v. Burson, 941
S.W.2d 44, 47 (Tenn. 1997).” “A complaint must, under Rule 8.01 state ‘the facts upon which a
claim for relief is founded.’ W & O Const. Co. v. City of Smithville, 557 S.W.2d 920, 922 (Tenn.
1977); see also Swallows v. Western Elec. Co., Inc., 543 S.W.2d 581 (Tenn. 1976).” Smith v.
Lincoln Brass Works, Inc., 712 S.W.2d 470 (Tenn. 1986).

                                                  II.

       The only issue is whether the trial court properly dismissed the claim against the Suttles, who
were the owners and lessors of the premises where the Plaintiff was assaulted, for failure to state a
claim upon which relief could be granted.

      In the case of Staples v. CBL & Associates, Inc., 15 S.W.3d 83, at 89-90 (Tenn. 2000) our
Supreme Court said:

               To bring a successful negligence claim, the plaintiff must establish each of
       the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2)
       conduct by the defendant falling below the applicable standard of care that amounts
       to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate,
       or legal, causation. (Citations omitted).

               Duty is the legal obligation a defendant owes to a plaintiff to conform to a
       reasonable standard of care in order to protect against unreasonable risks of harm.
       (Citation omitted). In assessing whether a duty is owed in a particular case, courts
       must apply a balancing approach, based upon principles of fairness, to identify
       whether the risk to the plaintiff was unreasonable. (Citation omitted). This Court
       has stated that a “risk is unreasonable and gives rise to a duty to act with due care if
       the foreseeable probability and gravity of harm posed by defendant’s conduct
       outweigh the burden upon defendant to engage in alternative conduct that would have
       prevented the harm.” (Citations omitted).


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                In McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn.
        1996), this Court considered what duty a premises owner or occupier owes to
        customers to protect them against the criminal acts of third parties occurring on the
        premises. Acknowledging that our decisions regarding the existence of a duty in
        negligence actions have consistently embraced a balancing approach, in McClung
        we set forth the following principles to be considered in determining duty in the
        contest of third-party criminal acts:

                        A business ordinarily has no duty to protect customers from
                the criminal acts of third parties which occur on its premises. The
                business is not to be regarded as the insurer of the safety of its
                customers, and it has no absolute duty to implement security
                measures for the protection of its customers. However, a duty to take
                reasonable steps to protect customers arises if the business knows, or
                has reason to know, either from what has been or should have been
                observed or from past experience, that criminal acts against its
                customers on its premises are reasonably foreseeable, either generally
                or at some particular time.

        A through review of the complaint reveals general conclusory allegations concerning the duty
of care owed by the Suttles to the plaintiff. Those conclusory allegations state in essence: (1) they
had duty to exercise ordinary care for the safety of the plaintiff; (2) they had a duty to exclude
people, who they knew or should have known were dangerous, and people, who had weapons; and
(3) they had duty to protect guests from misconduct of dangerous people.

        Since a business ordinarily has no duty to protect customers from the criminal acts of third
parties which occur on the premises, and it has no absolute duty to implement security measures for
the protection of the customers, unless it knows or should know from past experiences or that
criminal acts against its customers on the premises are reasonably foreseeable, either generally or
at some particular time, it is notable that there are no specific factual averments to give rise to a duty
of care on behalf of the Suttles.

       This is especially significant in light of the initial specific factual averments, quoted as
follows:

        That at all times mentioned herein, the Plaintiff believes that the Defendants, Mike
        Slover and wife, Linda Slover, along with the Defendant Luke Slover, managed or
        participated in the management at the L & M Lounge and otherwise controlled the
        common areas of said premises. At all times material to this action, it is believed that
        the Defendants, John D. Suttles and wife, Verda Suttles, were the owners of the
        property and had leased the property to the Slovers.




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        Without a properly plead duty of care there can be no conduct falling below the standard of
care that amounts to a breach of duty. However, we will discuss the general averments of conduct
of the Suttles. The complaint says in essence: (1) they failed to make the premises safe; (2) they
failed to exercise their right to exclude; (3) they failed to exclude the person, who assaulted the
plaintiff, when they knew or should have known he was dangerous; (4) they failed to protect the
plaintiff from the misconduct of the person who assaulted him; (5) they failed to warn the plaintiff
of danger with regard to allowing the person, who assaulted him, to remain on the premises; and (6)
they violated Tenn. Code Ann. §§ 62-7-109. 68-14-602, 68-14-605.

        Notwithstanding there are no specific factual allegations giving rise to the duty of care, the
allegations relative to a breach of duty are likewise general as to the Suttles and essentially
conclusory.

        The alleged statutory violations are inapplicable to the Suttles. The specific factual
allegations of the complaint show the Slovers as the lessees, managers and controllers of the
premises and the Suttles as the owners-lessors. Tenn. Code Ann. § 62-7-109 deals with the right of
the “keepers” of certain businesses to exclude people. Tenn. Code Ann. § 68-14-602 and § 68-14-
605 deal with innkeepers.

                                                 III.

       In conclusion, we affirm the Circuit Court’s order dismissing this action against the Suttles.
Costs of appeal are adjudged against Jeffrey Lynn Miller and his surety.



                                                        ___________________________________
                                                        H. DAVID CATE, SPECIAL JUDGE




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