                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                August 13, 2013 Session

 EILEEN KING, AS NATURAL PARENT AND NEXT OF KIN OF HALEY
                KING v. KENNETH FOHT, ET AL.

                   Appeal from the Circuit Court for Shelby County
                    No. CT00020511     Karen R. Williams, Judge




         No. W2013-00518-COA-R3-CV - Filed September 20, 2013


After her daughter was attacked by a tenant’s dog, the mother plaintiff sued the tenant and
the property owners. The trial court granted summary judgment in favor of the property
owners based upon a lack of knowledge/notice of the dog’s vicious propensities. For the
following reasons, we reverse the grant of summary judgment and we remand for further
proceedings.



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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Randall J. Fishman, Richard S. Townley, Samuel M. Fargotstein, Memphis, Tennessee, for
the appellants, Eileen King, as natural parent and next of kin of Haley King

Meredith A. Lucas, Memphis, Tennessee, for the appellees, Kenneth Foht and Laurie Foht
                                              OPINION
                               I.   F ACTS & P ROCEDURAL H ISTORY

       On April 8, 2010, eight-year old Hailey King was allegedly attacked and injured by
a Pit Bull dog while walking along a sidewalk adjacent to Northdale Drive in Memphis,
Tennessee. The dog was allegedly owned by Latoya Redwing, who rented residential
property at 4900 Northdale Drive from owners Kenneth and Laurie Foht.1 At all times
relevant to this lawsuit, the Fohts resided in Salem, Oregon, and they retained agents to
handle the leasing and management of the property: Harry Spore from December 2008 to
April 2010, and Terry Kerr beginning April 1, 2010.

        On January 14, 2011, Eileen King, as natural parent and next of kin of Hailey King,
filed a Complaint against Latoya Redwing alleging negligence for failure to protect third
parties from her dog, and against Kenneth Foht and Laurie Foht alleging negligence for
failure to inspect, investigate and remove the dog. The Fohts moved for summary judgment
claiming that they had no notice of the vicious propensities of the dog, and therefore, that the
duty element of Ms. King’s negligence claim had been negated. The trial court granted
summary judgment in favor of the Fohts, and Ms. King appeals.2

                                        II.   I SSUE P RESENTED

       Ms. King presents the following issue for review:

1.     Whether the trial court erred in finding that the landlords had no duty to protect third
       parties from a dog kept by a tenant on their premises when the lease of the subject
       property contained a no-pets provision, thereby creating a duty on the part of the
       landlord and/or their agents to investigate, inquire, and/or remove animals with
       vicious propensities from the property.

For the following reasons, we reverse the grant of summary judgment in favor of the Fohts
and we remand to the trial court for further proceedings.




       1
        The stated lease period was from December 2, 2008 to December 31, 2009. However, Ms. Redwing
apparently continued to reside at the property at least until April 2010.
       2
           This order was made final pursuant to Tennessee Rule of Civil Procedure 54.02.

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                                   III. S TANDARD OF R EVIEW

        A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “When ascertaining whether a
genuine dispute of material fact exists in a particular case, the courts must focus on (1)
whether the evidence establishing the facts is admissible, (2) whether a factual dispute
actually exists, and, if a factual dispute exists, (3) whether the factual dispute is material to
the grounds of the summary judgment.” Green v. Green, 293 S.W.3d 493, 513 (Tenn. 2009).

        “The party seeking the summary judgment has the burden of demonstrating that no
genuine disputes of material fact exist and that it is entitled to a judgment as a matter of law.”
Green, 293 S.W.3d at 513 (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008);
Amos v. Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)).
“The moving party may make the required showing and therefore shift the burden of
production to the nonmoving party by either: (1) affirmatively negating an essential element
of the nonmoving party's claim; or (2) showing that the nonmoving party cannot prove an
essential element of the claim at trial.” Martin, 271 S.W.3d at 83 (citing Hannan v. Alltel
Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008)).3 In order to negate an essential element of the
claim, “the moving party must point to evidence that tends to disprove an essential factual
claim made by the nonmoving party.” Id. at 84 (citing Blair v. W. Town Mall, 130 S.W.3d
761, 768 (Tenn. 2004)). “It is not enough for the moving party to challenge the nonmoving
party to ‘put up or shut up’ or even to cast doubt on a party’s ability to prove an element at
trial.” Hannan, 270 S.W.3d at 8. “If the moving party is unable to make the required
showing, then its motion for summary judgment will fail.” Martin, 271 S.W.3d at 83 (citing
Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).

       If the moving party does make a properly supported motion, “[t]he non-moving party
must then establish the existence of the essential elements of the claim.” McCarley v. West
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). The nonmoving party is required
to produce evidence of specific facts establishing that genuine issues of material fact exist.
Martin, 271 S.W.3d at 84 (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215).
“The nonmoving party may satisfy its burden of production by: (1) pointing to evidence
establishing material factual disputes that were over-looked or ignored by the moving party;


        3
         Recently, the Tennessee General Assembly enacted a law that legislatively reversed the Tennessee
Supreme Court’s holding in Hannan. See Tenn. Code Ann. § 20-16-101. However, the statute applies only
to cases filed on or after July 1, 2011. Thus, in this appeal, we apply the summary judgment standard set
forth in Hannan.

                                                  -3-
(2) rehabilitating the evidence attacked by the moving party; (3) producing additional
evidence establishing the existence of a genuine issue for trial; or (4) submitting an affidavit
explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.” Id.
(citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.6). “The nonmoving party's
evidence must be accepted as true, and any doubts concerning the existence of a genuine
issue of material fact shall be resolved in favor of the nonmoving party.” Id. (citing
McCarley, 960 S.W.2d at 588). The resolution of a motion for summary judgment is a matter
of law, which we review de novo with no presumption of correctness.

                                      IV.   D ISCUSSION

        “To hold a landlord liable for injury to a third person by a dog owned and kept by a
tenant, two prongs must be proven with respect to the landlord: ‘(1) knowledge or notice of
the vicious propensity of the dog, and (2) sufficient retained control over the leased premises
to afford an opportunity for the landlord to require the tenant to remove the dog or safely
restrain it.’” Woodson v. MEG Capital Mgmt., Inc., 395 S.W.3d 140, 142 (Tenn. Ct. App.
2012) (quoting Gilliland ex rel. Gilliland v. Pinkley, No. W2009-00982-COA-R3-CV, 2001
WL 557985, at *3 (Tenn. Ct. App. May 23, 2001)). As stated above, the trial court granted
summary judgment to the Fohts based upon the Fohts’ lack of knowledge/notice of the dog’s
vicious propensities.

        On appeal, Ms. King argues that summary judgment was inappropriate for two
reasons. First, she contends that the Fohts had actual or constructive knowledge, through
their agents, of the dog’s vicious propensities. Specifically, she points to evidence that,
during Ms, Redwing’s tenancy, the Fohts’ agents entered the 4900 Northdale Drive property
to make “several repairs[,]” including a water leak repaired by property manager Terry Kerr,
or his agent, in March 2010. She claims that “[o]n these occasions, Kerr and/or his agents
observed or should have observed with ordinary diligence, the presence of a dog, or made
further inquiry into the presence of a dog[]” and that they should have “become aware of its
general reputation for violence.”

       Alternatively, Ms. King argues that the Fohts owed a duty of care to her daughter
based upon the “no pets” provision in the lease between Ms. Redwing and the Fohts.
Specifically, the lease provided, in relevant part:

       20. Pets. Lessee shall keep no domestic or other animals in or about the
       Leased Premises without the consent of the Lessor. All pets shall be subject
       to the approval or disapproval of the Lessor, and Lessor reserves the right to
       require payment of an additional nonrefundable deposit at time of pet
       approval. Lessor reserves the right to evict any pet from the Leased Premises

                                              -4-
       without cause at the pleasure of the Lessor. Lessee hereby agrees to be
       responsible for any and all damage caused by the aforementioned pets.

Essentially, Ms. King contends that, even if the Fohts or their agents were unaware of the
dog’s existence, the lease provision disallowing pets imposes a duty of care upon the Fohts
to inspect for, and to remove, pets being kept in violation of the lease. She further contends,
however, that the Fohts, through their agents, had knowledge of the dog’s existence. Ms.
King points to a “drive-by” video of the subject property filmed by Terry Kerr prior to his
taking over its management, and she claims that still “images . . . show[] a dog-house as well
as what appear to be dog-scratches on the front door.”4 Ms. King argues that the images
indicate that Terry Kerr had actual or constructive knowledge of the presence of a dog on the
property, and therefore, he had a duty pursuant to the lease to remove the dog.

        In response, the Fohts argue that the evidence demonstrates that neither the Fohts nor
their agents had any knowledge that Ms. Redwing even owned a dog, and in any event, that
neither the presence of dog scratches on the residence door nor knowledge that a specific dog
breed was housed therein is sufficient to put them on notice of the dog’s vicious propensities.
In support of their lack-of-knowledge argument, the Fohts cite their own affidavits in which
they averred that they were unaware that a Pit Bull dog was being kept on the subject
property. They also cite the deposition testimony of former property manager Harry Spore,
who stated that he only learned of the dog’s existence after the incident with Hailey King,
as well as the deposition testimony of property manager Terry Kerr, who stated that neither
he, nor his agent,5 entered the subject property prior to the incident, and that a dog chain
around a tree in Ms. Redwing’s yard was not visible when he filmed the drive-by video.

        Regarding a duty arising from the “no pets” provision of the lease, the Fohts contend
that Ms. King lacks standing to enforce the contract because she is neither a party, nor a third
party beneficiary, to it, and that a duty cannot arise through the Fohts’ undertaking to render
a service to Hailey King because the Fohts did nothing to increase the risk to the child, nor
did the child rely upon the lease in any way. They further raise public policy arguments,
contending that public policy does not support the creation of a duty simply through a “no
pets” lease provision because the resulting duty would be overly burdensome to landlords and
would serve to penalize landlords who include such lease provisions.



       4
         Two black and white still images are included in the record; however, the images are dark and
grainy and we cannot discern what is depicted.
       5
        According to the Fohts, the plumber hired by Mr. Kerr to repair a leak in March 2010, was an
independent contractor.

                                                 -5-
       As referenced above, the trial court granted summary judgment in favor of the Fohts
because it concluded that Ms. King had failed to demonstrate that the Fohts or their agents
had knowledge of the dog’s vicious propensities. Specifically, in its order granting summary
judgment, the court found that “there is no proof to suggest that the Fohts or their agents had
actual knowledge of a dog with a vicious propensity being kept on the property by the
tenant.” (emphasis added).

       From our review, it appears that both the Fohts’ arguments regarding summary
judgment and the trial court’s grant of summary judgment, were based upon the affidavit and
deposition testimony of the Fohts and their agents that they lacked knowledge of the
existence of the dog and/or of its vicious propensities. Under the rigorous Hannan standard,
however, to obtain summary judgment, the Fohts must negate an element of Ms. King’s
negligence claim or show that she cannot establish the elements of her claim. The Hannan
standard is simply not met by saying, as the Fohts do here, that Ms. King has not yet
submitted evidence indicating the Fohts or their agents had knowledge of a dog with vicious
propensities.

       In their brief to this Court, the Fohts point out that the trial court allowed Ms. King
additional time to exhaust discovery before ruling on the Fohts’ motion for summary
judgment, and they maintain that “[a]fter completing discovery, Plaintiff has nothing
indicating that anyone, much less the Fohts or their agents, had knowledge and notice of a
vicious propensity in the dog.” (Br. 4). However, as this Court recently explained in White
v. Target Corporation, No. W2010-02372-COA-R3-CV, 2012 WL 6599814, at *7, n.3
(Tenn. Ct. App. Dec. 18, 2012), “under Hannan, . . . it is not enough to rely on the
nonmoving party’s lack of proof even where . . . the trial court entered a scheduling order and
ruled on the summary judgment motion after the deadline for discovery had passed. Under
Hannan, we are required to assume that the nonmoving party may still, by the time of trial,
somehow come up with evidence to support her claim.” By merely pointing to a lack of
evidence proffered by Ms. King, the Fohts have not “disprove[d] an essential factual claim”
made by Ms. King, and, therefore, they have not shifted the burden to Ms. King. Martin, 271
S.W.3d at 83 (citing Hannan, 270 S.W.3d at 5). Accordingly, we reverse the trial court’s
grant of summary judgment in favor of the Fohts and we remand for further proceedings.
All remaining arguments are deemed pretermitted.6




       6
           On remand, the Fohts may raise public policy arguments for consideration by the trial court.

                                                     -6-
                                   IV.   C ONCLUSION

       For the aforementioned reasons, we reverse the trial court’s grant of summary
judgment in favor of the Fohts and we remand for further proceedings. Costs of this appeal
are taxed to Appellees, Kenneth Foht and Laurie Fohts, for which execution may issue if
necessary.


                                                       ALAN E. HIGHERS, P.J., W.S.




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