       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                   FILED
                                                      May 20, 1998
JOHN SIMMONS,                  )
                               )                   Cecil W. Crowson
      Plaintiff/Appellant,     )                  Appellate Court Clerk
                               )   Montgomery Circuit
VS.                            )   No. C10-92
                               )
JAMES RUSSELL,                 )   Appeal No.
JAMES HOLLEMAN, and            )   01A01-9709-CV-00467
FRANK McGREGOR,                )
                               )
      Defendants/Appellees.    )




                   APPEAL FROM THE CIRCUIT COURT
                     FOR MONTGOMERY COUNTY
                     AT CLARKSVILLE, TENNESSEE

             THE HONORABLE JAMES E. WALTON, JUDGE




For Plaintiff/Appellant:           For Defendants/Appellees:

Gregory D. Smith                   W. Timothy Harvey
Clarksville, Tennessee             Batson Nolan Brice Harvey & Williamson
                                   Clarksville, Tennessee
Thomas R. Meeks
Clarksville, Tennessee




                   AFFIRMED AND REMANDED




                                   WILLIAM C. KOCH, JR., JUDGE
                                 OPINION

      This appeal involves a tenant who broke his hip by falling down some snow
and ice-covered stairs at an apartment complex in Clarksville. The tenant sued the
owners of the apartment complex in the Circuit Court for Montgomery County,
alleging that they negligently failed to clear the ice and snow from the stairway. The
trial court entered a summary judgment for the owners of the apartment complex, and
the tenant appealed. We affirm the summary judgment because we have determined
that the owners of the apartment complex did not have a duty under the circumstances
of this case to remove the snow and ice from the stairway where the tenant fell.


                                          I.


      Montgomery County experienced an intermittent snow and ice storm from
February 9 through February 11, 1994. The first storm began and receded on
February 9, and a second storm began the afternoon of February 10 and continued
until the afternoon of February 11. These storms created dangerous icy conditions
and caused power outages throughout the county.


      John Simmons lived in an apartment at the Cambridge Square Apartments in
Clarksville. The apartment was on the second floor of one of the units and was one
of seventy-six apartments in the complex. The storm on February 9, 1994 caused Mr.
Simmons to lose power in his apartment, and thus he was without heat, lights, or
power for cooking. By February 11, 1994, the apartment was, in Mr. Simmons’s
words, “unbearably cold.”


      Early on February 11, 1994, Mr. Simmons decided to walk to the grocery store
to purchase food. He had not been outside his apartment that day until he left for the
grocery store. Upon leaving his apartment, he picked up a small container of rock
salt that he found outside his door and began descending the stairs to ground level.
He threw some of the salt on a step and then slipped and fell down the stairs, breaking
his right hip. He was able to crawl to a first floor apartment to seek help. Even
though an ambulance responded to the scene, Mr. Simmons declined to go to the
hospital for several days. He was eventually admitted to Clarksville Memorial
Hospital on February 13, 1994, and his fracture was repaired on February 14, 1994.

                                         -2-
      In June 1994, Mr. Simmons sued the owners of the Cambridge Square
Apartments. Even though he alleged that “the City of Clarksville [had] endured an
ice storm of major proportions,” he asserted that the owners of the apartment complex
negligently failed to clear the apartment’s walkways and stairways of snow and ice.
The trial court granted the owners’ motion for summary judgment, finding that they
had no duty to remove the ice and snow from the steps and no duty to warn of the
danger. Mr. Simmons appealed and argues that summary judgment was improper
because the defendants assumed the duty to remove the accumulation of ice and snow
by placing rock salt outside his door.


                                         II.


      Summary judgments enjoy no presumption of correctness on appeal. See City
of Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn. 1997); McClung v.
Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996). Accordingly, we
must make a fresh determination concerning whether the requirements of Tenn. R.
Civ. P. 56 have been satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). Summary judgments
are appropriate only when there are no genuine factual disputes with regard to the
claim or defense embodied in the motion and when the moving party is entitled to a
judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Bain v. Wells, 936 S.W.2d
618, 622 (Tenn. 1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).


      Courts reviewing summary judgments must view the evidence in the light most
favorable to the nonmoving party and must also draw all reasonable inferences in the
nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997);
Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996). Thus, a summary
judgment should be granted only when the undisputed facts reasonably support one
conclusion -- that the moving party is entitled to a judgment as a matter of law. See
McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms, 900
S.W.2d at 26. A party may obtain a summary judgment by demonstrating that the
nonmoving party will be unable to prove an essential element of its case, see Byrd v.
Hall, 847 S.W.2d 208, 212-13 (Tenn. 1993), because the inability to prove an
essential element of a claim necessarily renders all other facts immaterial. See
Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993);


                                         -3-
Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729 (Tenn. Ct.
App. 1995).


                                         III.


      In order to bring a successful negligence action, a plaintiff must establish the
following elements: (1) a duty of care owed by the defendant to the plaintiff, (2)
conduct 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 cause. See McClung v. Delta
Square Ltd. Partnership, 937 S.W.2d at 894; Bradshaw v. Daniel, 854 S.W.2d 865,
869 (Tenn. 1993). The first element of the claim, duty, is the legal obligation that a
defendant owes to a plaintiff to conform to the reasonable person standard of care in
order to protect against unreasonable risks of harm. See McCall v. Wilder, 913
S.W.2d at 153.


      Determining whether a defendant owes a duty to a plaintiff is a question of law
for the court to decide. See Blair v. Campbell, 924 S.W.2d 75, 78 (Tenn. 1996);
Bradshaw v. Daniel, 854 S.W.2d at 869. The existence and scope of the defendant’s
duty in a particular case rests on all the relevant factual circumstances, including the
foreseeability of harm to the plaintiff and other similarly situated persons. The
degree of foreseeability necessary to give rise to a duty decreases as the magnitude
of the foreseeable harm increases. See Pittman v. Upjohn Co., 890 S.W.2d 425, 433
(Tenn. 1994); Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992).


      Persons in control of real property have a duty to exercise reasonable care
under the circumstances to prevent injury to persons lawfully on the premises. See
Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984); Johnson v. EMPE, Inc., 837
S.W.2d 62, 65 (Tenn. Ct. App. 1992). This duty encompasses maintaining the
premises in a reasonably safe condition and includes inspecting and either removing
or warning of dangerous conditions reasonably recognized by common experience
and ordinary prudence. See Blair v. Campbell, 924 S.W.2d at 76; Eaton v. McLain,
891 S.W.2d 587, 593-94 (Tenn. 1994); Smith v. Inman Realty Co., 846 S.W.2d 819,
823 (Tenn. Ct. App. 1992). In order to prevail in a premises liability action, the
plaintiff must show that his or her injury was a reasonably foreseeable probability and




                                          -4-
that “some action within the [defendant’s] power more probably than not would have
prevented the injury.” Doe v. Linder Constr. Co., 845 S.W.2d at 178.


       The Tennessee Supreme Court held recently that the fact that a dangerous
condition was open and obvious does not, by itself, prevent a plaintiff from
recovering in a premises liability action. See Coln v. City of Savannah, ___ S.W.2d
___, ___ (Tenn. 1998).1 Instead, a defendant’s duty with regard to an open and
obvious danger must be analyzed in light of the foreseeability and gravity of the harm
and the feasibility and availability of measures that could have prevented it. See Coln
v. City of Savannah, ___ S.W.2d at ___.2 If the court finds that a duty existed, then
the surrounding circumstances are analyzed under the principles of comparative fault.
See Coln v. City of Savannah, ___ S.W.2d at ___.3


                                               IV.


       A landlord has a duty to remove natural accumulations of ice and snow from
common areas within a reasonable amount of time. See Grizzell v. Foxx, 48 Tenn.
App. 462, 468, 348 S.W.2d 815, 817 (1960). Quoting with approval from Goodman
v. Corn Exchange National Bank, 200 A. 642, 643 (Pa. 1938), the Grizzell court held
that a landlord did not owe a duty to remove snow and ice when the precipitation is
recent or continuous. The accumulation of ice and snow is one of “the normal
hazards of life” for which no owner or occupier of the premises can be held liable.
Liability will be imposed only when the person in control of the premises allows the
snow and ice to remain beyond a reasonable amount of time. See Grizzell v. Foxx,
48 Tenn. App. at 467-68, 348 S.W.2d at 817. When considering imposing liability
for an accumulation of ice and snow, reasonable care depends on, among other things,
(1) the length of time the accumulation has been present, (2) the amount of the
accumulation, (3) whether the accumulation could be, as a practical matter, removed,
(4) the cost of removal, and (5) the foreseeability of injury. See Mumford v. Thomas,
603 S.W.2d 154, 156 (Tenn Ct. App. 1980).



       1
        See Coln v. City of Savannah, No. 02-S-01-9702-CV-00008, 1998 WL 139096, at *9 (Tenn.
Mar. 30, 1998) (For Publication).
       2
           See Coln v. City of Savannah, 1998 WL 139096, at *9.
       3
           See Coln v. City of Savannah, 1998 WL 139096, at *9.

                                               -5-
         Because the accumulation of frozen precipitation in this case was both recent
and continuous, we find that the defendants did not have a duty to remove the ice and
snow from the steps. Mr. Simmons’s accident occurred right in the middle of
approximately twelve hours of falling ice and snow. This is not a case in which a
landlord improperly allowed an accumulation to remain after a reasonable length of
time had passed for removal. It would not be feasible or fair to impose a duty on a
landlord to continuously remove ice and snow in the middle of an ongoing winter
storm.


                                           V.


         Mr. Simmons also argues that the owners of the Cambridge Square Apartments
assumed the duty of clearing the stairs because they placed a small container of rock
salt outside his door. While a party may assume a duty of care by undertaking a
course of action, see Gorman v. Earhart, 876 S.W.2d 832, 836 (Tenn. 1994); Nidiffer
v. Clinchfield R. Co., 600 S.W.2d 242, 246 (Tenn. Ct. App. 1980), Mr. Simmons has
not set forth sufficient facts to establish that the owners assumed the duty of
removing ice and snow from the stairs during the winter storm.


         Mr. Simmons’s affidavit opposing the summary judgment motion states that
he discovered a small container of rock salt beside his door when he left his
apartment on February 11, 1994. He also states that the container must have been
placed there by the owners of the apartment complex because he observed similar
small containers outside the doors of each apartment. Accordingly, he concludes that
someone representing the owners had been able to negotiate the stairway where he
fell and, therefore, must have known about the dangerous condition of the steps.
Even if we were to take these facts as true, they are not sufficient to impose a duty on
the owners of the apartment complex to remove the snow and ice on the apartment
stairway.


         The owners of the apartment complex were not undertaking to make the
premises safe when they placed small containers of rock salt outside their tenants’
doors. Rather, as an accommodation, they were providing their tenants with the
means to make the premises safe once the precipitation stopped and the temperature
warmed sufficiently to enable the rock salt to accelerate melting the snow and ice.


                                          -6-
The tenants had the responsibility to determine when and how to use the rock salt.
The undisputed facts indicate that Mr. Simmons decided to sprinkle some of the rock
salt as he was descending the stairway rather than to steady himself by holding on to
the handrail.


      There is no evidence in the record that the owners of the apartment complex
had started removing the accumulated snow and ice when Mr. Simmons fell on the
stairway. Thus, they had not voluntarily assumed the responsibility to make the
walkways and stairways safe for their tenants. Under the undisputed facts, the trial
court correctly determined as a matter of law that the owners of the apartment
complex had not assumed a duty to Mr. Simmons or the other tenants to clear the
walkways and stairways of snow and ice.


                                        VI.


      We affirm the summary judgment and remand the case to the trial court for
whatever additional proceedings may be required. We also tax the costs of this
appeal to John Simmons and his surety for which execution, if necessary, may issue.


                                              ______________________________
                                              WILLIAM C. KOCH, JR., JUDGE

CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
WALTER W. BUSSART, JUDGE




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