                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                  September 14, 2006 Session

MARY ELIZABETH STILLWELL, DECEDENT BY AND THROUGH HUSBAND,
H. CHESTER STILLWELL v. KENNETH WAYNE HACKNEY, SR., ET AL.

                      Appeal from the Circuit Court for Davidson County
                          No. 04C-1649     Walter C. Kurtz, Judge



                 No. M2005-02218-COA-R3-CV - Filed on December 27, 2006


Invitee fell in gravel driveway of rental property, allegedly due to a partially hidden concrete divider.
Invitee ultimately died as result of the fall and invitee, by and through her husband, filed an action
against rental property owners. Property owners filed a motion for summary judgment, which the
trial court granted, finding that Plaintiff failed to establish an exception to the general rule of
landlord non-liability. Plaintiff appealed. We affirm the decision of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK
G. CLEMENT , JR., JJ., joined.

James Robin McKinney, Jr., Nashville, Tennessee, for the appellant, H. Chester Stillwell.

John J. Griffin, Jr. and Caroline M. Gobbell, Nashville, Tennessee, for the appellees, Kenneth
Wayne Hackney, Sr. and Linda Darline Hackney.

                                              OPINION

        Mr. Kenneth Hackney and Mrs. Linda Hackney were the owners of a rental property located
at 115 Forest Park Road in Madison, Tennessee. At the time in question, the Hackneys rented one
side of the property to Ms. Victoria Davis. On July 7, 2003, Mrs. Mary Stillwell visited her
granddaughter, Ms. Davis, at the property. When exiting the vehicle, Mrs. Stillwell fell in the
driveway of the property and was unable to stand without assistance. Mrs. Stillwell thereafter called
her daughter, Ms. Sharon Davis, who helped Mrs. Stillwell to stand and transported her to the
hospital. Mrs. Stillwell was diagnosed with a broken ankle. She stayed in the hospital for five days
and then was transferred to a rehabilitation center for seven more days. Eighteen days after the
accident, Mrs. Stillwell died due to a pulmonary embolism.
        On June 7, 2004, Mrs. Stillwell, by and through her husband, Mr. Chester Stillwell, filed an
action against the Hackneys, seeking damages for Mrs. Stillwell’s personal injuries and wrongful
death. Plaintiff asserted that Defendants failed to exercise ordinary and reasonable care for the safety
of their tenants and/or visitors, that Defendants knew or should have known of a partially hidden
concrete divider in the driveway, that Defendants failed to use reasonable care to discover and repair
the unsafe condition of the driveway, and that such caused the personal injuries and wrongful death
of Mrs. Stillwell.

        On February 10, 2005, the depositions of Mr. Stillwell and Ms. Sharon Davis were taken.
On May 4, 2005, Defendants filed a motion for summary judgment, asserting that (1) there was no
genuine issue of material fact as to whether a dangerous condition existed which caused Mrs.
Stillwell’s fall because there was no living person who knew what caused Mrs. Stillwell’s fall; and
(2) Plaintiff failed to allege that Defendants were liable under the pre-existing dangerous condition
exception to the general rule that a landlord is not liable for harm caused by a dangerous condition
on leased premises. Plaintiff responded to the motion on June 20, 2005, contending that a dispute
of fact existed as to whether the concrete divider was a dangerous and/or defective condition and
whether Mrs. Stillwell’s fall was caused by the dangerous and/or defective condition. In addition,
Plaintiff filed the affidavit of Mr. Thomas Clemmons, a professional engineer, to support the
contention that Defendants should have known of the dangerous condition and should have taken
measures to correct the condition.

        On July 1, 2005, the trial court granted the Hackney’s motion, finding that no exception to
the general rule of landlord non-liability applied in the matter. On July 28, 2005, Plaintiff filed a
motion to alter or amend the judgment, asserting for the first time that the exception to the general
rule of landlord non-liability for a common area applied in the matter because Mrs. Stillwell’s fall
occurred in an area in the possession and control of the landlord. On September 16, 2005, the trial
court denied Plaintiff’s motion. Plaintiff appeals.

        “[T]he review of a trial court’s grant of summary judgment presents a question of law.
Review is de novo, with no presumption of correctness afforded to the trial court’s determination.”
Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.2000). Summary judgment is only appropriate where
there are no genuine issues of material fact for trial and the moving party is entitled to judgment as
a matter of law. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). The facts and reasonable
inferences from those facts must be considered in the light most favorable to plaintiff. Byrd, 847
S.W.2d at 210-11. However, a “complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Byrd, 847 S.W.2d at 213
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

        As a general rule, “a landlord is not liable to a tenant or a third party for harm caused by a
dangerous condition on the leased premises.” Lethcoe v. Holden, 31 S.W.3d 254, 256
(Tenn.Ct.App.2000). However, the general rule of a landlord’s non-liability is subject to exceptions.
Lethcoe, 31 S.W.3d at 256. “[W]here the landlord retains possession of a part of the premises for
use in common by different tenants, the landlord is under a continuing duty imposed by law to


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exercise reasonable care to keep the common areas in good repair and safe condition.” Tedder v.
Raskin, 728 S.W.2d 343, 347-48 (Tenn.Ct.App.1987). This is “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.” Lethcoe, 31 S.W.3d at 258. Therefore, “although the landlord is by no means an insurer
of his tenants’ safety, Tennessee common law has long held the landlord responsible for the
condition of common areas under [the landlord’s] control.” Tedder, 728 S.W.2d at 348. In Tedder,
the Court discussed the rationale behind a landlord’s duty with respect to common areas and
although the facts were substantially dissimilar from the instant case, we find the Court’s reasoning
enlightening. Said the Court:

       Since the landlord retains control over the common areas of the apartment building
       and grounds, the landlord is in a far superior position to take steps necessary to
       secure the premises for the safety of the tenants. Like guests at inns, tenants in
       multiple-apartment buildings whose leases are often of short duration cannot be
       expected individually to make the expenditures necessary to secure the common
       areas of the building, for example by installing locks on outside entrances, providing
       adequate lighting in hallways, and taking similar precautions. The landlord, on the
       other hand, is in a better position to provide reasonable security and spread the cost
       among the tenants. The imposition by law of a duty on the landlord to take reasonable
       steps to secure the leased premises for the safety of the tenants was thus merely a
       logical extension of the existing common law governing the special relationship of
       innkeeper-guest.

Tedder, 728 S.W.2d at 347.


       In this case, Plaintiff argues that Mrs. Stillwell’s injuries were sustained in the rental
property’s driveway and that the driveway is a common area in the possession and control of
Defendants because the driveway was utilized by both tenants of the rental property. The difficulty
with this assertion by Plaintiff is that it is supported by neither allegation nor proof. In the
Complaint, Plaintiff alleged:

               3.     Kenneth Wayne Hackney, Sr., hereinafter referred to as the
       “Defendant,” was, and at all times pertinent hereto, an adult citizen and resident of
       Nashville, Davidson County, Tennessee, and the co-owner of the house and parcel
       of real property located at 115 Forest Park Road in Madison, Davidson County,
       Tennessee 37115.
               4.     Linda Darline Hackney, hereinafter referred to as the “Defendant’s
       Wife,” was, and at all times pertinent hereto, an adult citizen and resident of
       Nashville, Davidson County, Tennessee, and the co-owner of the house and parcel
       of real property located at 115 Forest Park Road in Madison, Davidson County,
       Tennessee 37115.



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        5.      At the time of the incident, the Defendants, Kenneth Wayne Hackney,
Sr., and his wife, Linda Darline Hackney, rented the aforementioned property to the
Plaintiffs granddaughter, Victoria Marie Davis.

                                         II. Facts
        6.      On or about the 7th day of July, 003, the Decedent, Mary Elizabeth
Stillwell, went to her [sic] visit her granddaughter, Victoria Marie Davis, who rented
the home located at 115 Forest Park Road in Madison, Davidson County, Tennessee,
from the Defendants, Kenneth Wayne Hackney, Sr., and Linda Darline Hackney.
        7.      The Decedent exited her automobile in the driveway of the
aforementioned property, when she fell on a partially hidden concrete divider in the
driveway and was unable to get up without assistance.

...

        14.     The Defendants, acting individually and/or through his agents,
servants, or employees, were negligent and committed the following acts, omissions
or failures, which constitute acts of common law negligence, which negligent acts
directly and proximately caused the injuries and damages to the Plaintiffs herein, to-
wit:
        a.      The Defendants failed to exercise ordinary and reasonable
        care for the safety of the tenants and/or visitors to the property rented
        by the Plaintiffs granddaughter and owned by the Plaintiffs;
        b.      The Defendants knew or should have known of the partially
        hidden concrete divider in the driveway and that it was a dangerous
        and defective condition on the Defendants real property.
        c.      The Defendants failed to use reasonable care to discover and
        repair the unsafe conditions of the driveway, which was under their
        control.
...
        17.     By reason of the carelessness and negligence of the Defendants and
as a direct and proximate result thereof, the Plaintiff was compelled and did incur
indebtedness for the funeral and burial of his wife.
...
                                     VI. Conclusion

      The Plaintiff alleges and asserts that the Defendants are liable to him for the
Defendants failure to properly maintain the property where the Decedent was injured.

This Complaint was met by the defendants Motion for Summary Judgment asserting in part:

       1.      Summary judgment is appropriate because there is no genuine issue
of material fact as to whether a dangerous condition existed that caused Mary


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       Stillwell’s injuries on the property of Kenneth Hackney, Sr. and Linda Hackney. The
       Plaintiff does not know what caused Ms. Stillwell to fall.
               2.      Summary judgment is appropriate because the Plaintiff has put forth
       no material facts that the Hackneys are liable under the pre-existing dangerous
       condition exception to a general rule that a landlord is not liable for harm caused by
       a dangerous condition on the leased premises.

       In their Statement of Undisputed Material Facts, Defendants asserted:

               1.     At the time of the alleged incident that is the subject of this lawsuit,
       Kenneth Wayne Hackney, Sr. and wife, Linda Darline Hackney, owned the property
       at 115 Forest Park in Madison, Davidson County, Tennessee 37115. (Compl. ¶¶ 3,
       4).
       RESPONSE:

              2.     At the time of the incident, the Hackneys rented the property to
       Victoria Marie Davis, granddaughter of Mary Elizabeth Stillwell. (Compl. ¶ 5).
       RESPONSE:

       In response to this Statement of Undisputed Facts, numbers 1 and 2 as recited above were
admitted.

         Such being the record before the trial court when the Motion for Summary Judgment was
heard, the trial court applied the rule in Lethcoe v. Holden, 31 S.W.3d 254 (Tenn.Ct.App.2000) that
a landlord is not liable for a dangerous condition on the leased premises which causes injury to a
tenant or a third party. The trial court never addressed the “common areas” exception to the general
rule because such exception was never asserted in the Complaint and no proof was offered that any
“common areas” existed. By the allegations of the Complaint and the undisputed facts, the property
was simply rented by the defendants to the granddaughter of the plaintiff, and Plaintiff was injured
when visiting her granddaughter’s home on the leased property. Plaintiff first asserted the “common
areas” exception to the general rule of landlord nonliability in their Motion to Alter or Amend the
judgment after the trial court granted the defendants’ Motion for Summary Judgment. It is well
settled in Tennessee that “[a] Rule 59 motion should not be used to raise or present new, previously
untried or unasserted theories or legal arguments.” In re: M.L.D., 182 S.W.3d 890, 895
(Tenn.Ct.App.2005).

              Numerous cases set forth the conditions under which a motion to alter or
       amend is authorized. The motion to alter or amend allows the trial court to correct
       any errors as to the law or facts that may have arisen as a result of the court
       overlooking or failing to consider matters. See Milwee v. Peachtree Cypress Inv.
       Co., 510 F.Supp. 284 (E.D.Tenn.1978). The motion may be appropriate when a
       change in the applicable law has occurred after the trial court's original decree. See
       Saylors v. City of Jackson, 575 S.W.2d 264 (1978). However, we do not find any


                                                -5-
        authority which authorizes a motion to alter or amend in order to allow a party to
        present her case under a new theory when the facts and law were available to be
        argued at the trial prior to the court's original decree.

Chadwell v. Knox County, 980 S.W.2d 378, 383 (Tenn.Ct.App.1998).

        The trial court did not abuse its discretion in refusing to alter or amend summary judgment
in order to allow Plaintiff to assert a new theory of liability not previously encompassed within the
parameters of the Complaint. In re M.L.D., 182 S.W.3d at 895; Stovall v. Clarke, 113 S.W.3d 715,
721 (Tenn.2003).

     Since Plaintiff failed to raise this issue prior to the trial court’s decision to grant Defendants’
summary judgment, we find that the trial court properly denied the Motion to Alter or Amend.

        A second exception to the general rule of landlord non-liability exists where (1) the
dangerous condition existed 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, through the exercise of reasonable care, learned about the dangerous condition.
Maxwell v. Davco Corp. of Tenn., 776 S.W.2d 528, 531-32 (Tenn.Ct.App.1989). As a natural
extension of this exception, “a landlord is not liable for an invitee’s injuries if both landlord and
invitee ‘are equally aware of the dangerous condition and the invitee voluntarily exposes himself to
the hazard.’” Couture v. Oak Hill Rentals, Ltd., No. OT-03-048, 2004 WL 2334149, at *3 (Ohio
Ct.App. Sept. 24, 2004); see Lethcoe, 31 S.W.3d at 256.

        Plaintiff argues that the concrete divider was a dangerous condition which existed at the time
Ms. Davis signed the lease and of which Defendants had knowledge. However, assuming arguendo
that Plaintiff could prove that the concrete divider was present in the driveway at the time Ms. Davis
executed her lease and that Defendants should have known of the presence of the divider in the
driveway, Plaintiff offers no proof that the divider was dangerous. The affidavit of professional
engineer Thomas P. Clemmons assets:

                6.     I have reviewed photographs of the driveway located at 115 Forest
        Park Road in Madison, Davidson County, Tennessee 37115 which are attached
        hereto as Exhibit A.
                7.     I have viewed the curb, which is partially hidden in the driveway on
        the aforementioned property, and would assert that a normal curb is approximately
        6" inches in height.
                8.     The curb depicted in the photographs has no functional use
        whatsoever in the use of the driveway.
                9.     It is my professional opinion that the curb and drop-off is a hazardous
        condition and/or safety hazard on the property at 115 Forest Park Road in Madison,
        Davidson County, Tennessee 37115.



                                                  -6-
              10.    It is my professional opinion that the property owner should have
       known and/or realized that the partially hidden curb was a hazardous condition and
       should have taken the appropriate measures to correct the defect.

         The assertion that a “normal curb” is approximately six (6) inches in height does not offer
a comparison between the curb in issue and a normal curb as we are not given the measurement of
the height of the curb in issue. Whether the curb has a functional use is not relevant to whether or
not it is dangerous. An opinion that the curb and drop-off is a hazardous condition is based on no
facts asserted in the affidavit, and indeed, no proof is offered that the “drop-off” had anything to do
with the fall of Mrs. Stillwell.

        Plaintiff disregards the third requirement of the exception which provides that the tenant or
invitee could not have, through the exercise of reasonable care, learned about the concrete divider.

        Mr. Stillwell testified in his deposition that Mrs. Stillwell had visited the rental property on
several occasions prior to the incident on July 7, 2003, making Mrs. Stillwell as least somewhat
familiar with the property. Mr. Stillwell further testified that there was nothing obstructing Mrs.
Stillwell’s view of the driveway on the day of the incident. Ms. Davis testified that the incident
occurred around 1:00 in the afternoon, and the weather was sunny, providing Mrs. Stillwell with
adequate light to see where she was walking. Therefore, it appears to this Court that the condition
which Plaintiff asserts was dangerous would have been open and obvious to Mrs. Stillwell through
the exercise of reasonable care.

         Furthermore, there is no evidence in the record that Defendants had knowledge of the
allegedly dangerous condition in the driveway. Neither Ms. Sharon Davis, Ms. Victoria Davis, nor
Mr. Stillwell informed Defendants of the concrete divider in the driveway, and Mr. Hackney testified
that he was unaware that such a condition existed. We, therefore, find that Defendants were under
no duty to protect Mrs. Stillwell from the concrete divider in the rental property’s driveway because
Plaintiff failed to establish an exception to the general rule of landlord non-liability. The judgment
of the trial court is affirmed, and the costs of appeal are assessed against Appellant.



                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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