                                                                                         01/24/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              November 6, 2019 Session

    GARY FISHER v. VILLAGES AT HENLEY STATION, LLC, ET AL.

                Appeal from the Circuit Court for Rutherford County
                         No. 72287 J. Mark Rogers, Judge
                     ___________________________________

                           No. M2018-01990-COA-R3-CV
                       ___________________________________

This appeal involves a slip and fall premises liability claim filed by a tenant against his
landlord. The trial court granted summary judgment to the landlord because the tenant’s
evidence did not show that the allegedly dangerous condition was in existence as of the
date of the lease or that the landlord had actual or constructive notice of the allegedly
dangerous condition. The tenant appeals. Discerning no error, we affirm.

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

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

R. Timothy Hogan, Murfreesboro, Tennessee, for the appellant, Gary Fisher.

J. Paul Brewer and Rachel M. Casias, Nashville, Tennessee, for the appellees, Villages at
Henley Station, LLC, and Lifestyle Property Management, LTD.

                                       OPINION

                         I.   FACTS & PROCEDURAL HISTORY

        Plaintiff Gary Fisher filed this lawsuit against Villages at Henley Station, LLC,
and Lifestyle Property Management, LTD, alleging premises liability from “a slip and
fall accident.” The two defendants are, respectively, the owner and property manager of
an apartment complex in Murfreesboro, Tennessee. Plaintiff is a former tenant who
resided in a townhouse in the apartment complex. According to his complaint, the “slip
and fall accident” at issue occurred on or about January 2, 2016. Plaintiff alleged that he
was attempting to walk down the stairs inside his townhouse when he “tripped and fell on
the plank of wood located at the very top of the steps, which was not connected properly
and the plank of wood became completely disconnected from the stairs.” Plaintiff
alleged that Defendants had actual or constructive knowledge of this condition prior to
his fall. Plaintiff asserted that Defendants failed to repair or warn him of the defective
stair, thereby creating a dangerous condition that “was not visible or discoverable to
Plaintiff.”

        Defendants filed an answer, and discovery ensued. Thereafter, Defendants filed a
motion for summary judgment, arguing that Plaintiff could not come forward with
sufficient evidence to prove the elements of his claim. Specifically, Defendants
contended that Plaintiff was unable to prove that the allegedly dangerous condition was
present when the lease was signed or that Defendants had knowledge of any allegedly
dangerous condition.

        In support of its motion, Defendants submitted the affidavit of Meagan Schreffler,
its regional manager and property manager for all apartments and townhouses in the
rental community. According to Ms. Schreffler, Plaintiff had leased the townhouse on
November 20, 2015, less than two months before the alleged fall on January 2, 2016.
The townhouses were fairly new, having been constructed eight to nine months before
Plaintiff signed the lease. Plaintiff was the first tenant to occupy this particular
townhouse. Ms. Schreffler stated that the day before Plaintiff executed the lease, she and
Plaintiff conducted a walkthrough of the townhouse, and neither of them observed any
damage to or defective condition of the stairs. Ms. Schreffler further testified that neither
she nor any other employee of Defendants had knowledge of any potential dangerous
condition regarding the stairs until Plaintiff reported his fall on January 7. Ms. Schreffler
stated that Plaintiff failed to complete and return the post-move-in checklist identifying
any items in the unit as being damaged or defective, and he had not submitted any work
orders or requested any repairs regarding the stairs. As a result, according to Ms.
Schreffler, neither she nor anyone else associated with Defendants had entered the
premises. Finally, Ms. Schreffler noted that no other tenant residing in the rental
community had made any complaints or had any issues with the stairs in other units prior
to or after the date of Plaintiff’s fall.

        Defendants also submitted excerpts from Plaintiff’s deposition, at which he
testified that he had never noticed any problem with the stairs before the fall. Plaintiff
had used the stairs “many times” without issue while moving in, moving things upstairs
and downstairs, etc. Plaintiff never reported any problem with the stairs to the landlord.
He was not aware of any other tenants having a problem with the stairs in other units
either. Defendants also submitted a statement of undisputed facts. Plaintiff admitted that
he did not recall any damage to the stairs at the time the lease was executed. He did not
experience any issues with the stairs from the time the lease was executed on November
20, 2015, until the date they allegedly broke on January 2, 2016.

      In response to Defendants’ motion for summary judgment, Plaintiff submitted his
own affidavit and the affidavit of another individual, who witnessed his fall. Plaintiff’s
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affidavit stated that he “was not aware of the defect in the steps which caused my fall, as
it was not open and obvious.” The second individual’s affidavit stated that she witnessed
the fall suffered by Plaintiff and that the fall was caused by a “loose piece of wood on the
staircase.” She added, “The loose piece of wood was not visibly open and obvious, when
the fall occurred.” Plaintiff submitted an additional statement of undisputed facts, which
stated that Plaintiff was not aware of the defect because it “was not an open and obvious
danger,” as the loose piece of wood “was not visibly open and obvious.” Defendants
admitted these facts for purposes of summary judgment.

       Plaintiff insisted that a genuine issue of material fact remained as to whether the
defect existed when the lease was executed and whether Defendants knew or should have
known about it. Plaintiff pointed to the short duration of his occupancy in the townhouse
before the fall, the fact that he was the first tenant to reside there, the fact that the
property manager had entered the townhouse at least once before he leased it, and the fact
that Defendants had “control” of the premises before the lease was executed. At the same
time, Plaintiff insisted that he had no knowledge of the condition “and could not have
learned about it through the exercise of reasonable care.”

       The trial court held a hearing on the motion for summary judgment on September
6, 2018. At the conclusion of the hearing, the trial judge announced his oral ruling in
favor of Defendants. First, the trial judge found no proof to indicate that the allegedly
dangerous condition was in existence when the lease was executed. The trial judge noted
that the property manager walked through the townhouse the day before the lease was
executed, and she did not see any dangerous condition. Secondly, the trial court found
that Defendants had no knowledge of the allegedly dangerous condition. The trial court
noted that Plaintiff did not notice the dangerous condition before the day of the fall either,
despite going up and down the staircase and actively using it for a month and a half after
signing the lease. As a result, the trial court found that Plaintiff had insufficient proof to
establish the necessary elements to hold a landlord liable for his injuries under Tennessee
law. On October 4, 2018, the trial court entered its order granting summary judgment to
Defendants. Plaintiff timely filed a notice of appeal.

                                  II.    ISSUE PRESENTED

        On appeal, Plaintiff argues that the trial court erred by granting Defendants’
motion for summary judgment. For the following reasons, we affirm the decision of the
circuit court.

                               III.     STANDARD OF REVIEW

      Appellate courts review a trial court’s decision on a motion for summary judgment
de novo with no presumption of correctness. Kershaw v. Levy, 583 S.W.3d 544, 547
(Tenn. 2019) (citing Beard v. Branson, 528 S.W.3d 487, 494-95 (Tenn. 2017)). On
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appeal, we must “make a fresh determination about whether the requirements of Rule 56
have been met.” TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn.
2019). Summary judgment is appropriate “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.

        A moving party who does not bear the burden of proof at trial can meet its burden
of production “‘either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.’” TWB Architects, Inc., 578 S.W.3d at 887 (quoting Rye v. Women’s Care Ctr.
of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015)). Then, “‘[t]he nonmoving party must
demonstrate the existence of specific facts in the record which could lead a rational trier
of fact to find in favor of the nonmoving party.’” Id. at 889 (quoting Rye, 477 S.W.3d at
265). We accept the evidence presented by the nonmoving party as true, allow all
reasonable inferences in its favor, and resolve any doubts about the existence of a
genuine issue of material fact in its favor. Id. at 887.

                                    IV.   DISCUSSION

       “Generally, 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) (citing Hester v. Hubbuch, 26 Tenn. App. 246, 170 S.W.2d 922,
926 (1942); Roberts v. Tenn. Wesleyan College, 60 Tenn. App. 624, 450 S.W.2d 21, 24
(1969); Whitsett v. McCort, 1990 WL 123943, *4 (Tenn. Ct. App. Aug. 28, 1990)).
Thus, “the general rule in Tennessee is that a landlord is not liable for injuries to tenants
caused by a dangerous condition on the leased premises; this rule is inapplicable only
when an exception has been met.” Jones v. Jenkins, No. M2008-01911-COA-R3-CV,
2009 WL 1871868, at *6 (Tenn. Ct. App. June 29, 2009). One such exception applies if
three elements 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.” Lethcoe, 31 S.W.3d at 256 (citing
Maxwell v. Davco Corp. of Tennessee, 776 S.W.2d 528, 531-32 (Tenn. Ct. App. 1989)).
Plaintiff claims that the circumstances of his case fall under this exception, and therefore
summary judgment was not appropriate. We disagree.

      In this case, the uncontroverted evidence demonstrated that Defendants had no
knowledge of any dangerous condition with regard to the stairs. Plaintiff alleged in his
complaint that a piece of wood “was not connected properly” and “became completely
disconnected from the stairs.” However, the proof showed that Defendants’ regional
manager conducted a walkthrough of the townhouse with Plaintiff before he executed the
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lease, and neither identified any defective condition on the stairs at that time. According
to the regional manager, neither she nor any other agent or employee of Defendants had
knowledge of any potential danger involving the stairs. No other tenant had made any
complaints or had any issues with the stairs in other units. Plaintiff resided in the
townhouse for roughly a month and a half, using the stairway “many times,” and he never
noticed any problem or experienced any issues with the stairs before his fall. Plaintiff’s
own proof establishes that “[t]he loose piece of wood was not visibly open and obvious,
when the fall occurred.” Thus, the evidence presented simply does not support Plaintiff’s
allegation that Defendants had constructive knowledge of the dangerous condition of the
stairs.

        As the trial judge aptly noted, the evidence demonstrates that Plaintiff had no
knowledge of the dangerous condition, but neither did Defendants, based on the proof in
the record. As such, summary judgment was appropriate because Plaintiff does not have
sufficient evidence to prove an essential element of his claim. See, e.g., Palmer v. Kees,
No. E2014-00239-COA-R3-CV, 2015 WL 3465759, at *1-3 (Tenn. Ct. App. June 1,
2015) (affirming summary judgment for a landlord when the tenant claimed that “a board
on the stairs collapsed, causing the tenant to fall,” but the tenant did not show that the
landlord “could or should have had knowledge of any dangerous condition with regard to
the stairs”). The law “‘does not place upon the landlord the obligation of an insurer or
warrantor by contract, nor does it impose the extreme duty of constant care and
inspection, but only reasonable care and diligence; and like reasonable care and diligence
are required of the tenant.’” Arzanzarrin v. Johnstown Properties, Inc., No. 01-A-01-
9406-CV-00259, 1994 WL 672675, at *3 (Tenn. Ct. App. Dec. 2, 1994) (quoting Jolly
Motor Livery Corp. v. Allenberg, 221 S.W.2d 513, 515 (Tenn. 1949)).

       Our conclusion regarding this element of Plaintiff’s claim renders it unnecessary
to address the other elements on appeal. See Cotten v. Wilson, 576 S.W.3d 626, 637
(Tenn. 2019) (“[I]n seeking summary judgment, it is enough for a party to negate one
element of a claim; it is not necessary that every element be negated.”) (quotation
omitted); Stillwell ex rel. Stillwell v. Hackney, No. M2005-02218-COA-R3-CV, 2006
WL 3813631, at *2 (Tenn. Ct. App. Dec. 27, 2006) (“[A] complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.”) (quotation omitted).

                                   IV.   CONCLUSION

       For the aforementioned reasons, the decision of the circuit court is hereby affirmed
and remanded. Costs of this appeal are taxed to the appellant, Gary Fisher, for which
execution may issue if necessary.

                                                 _________________________________
                                                 CARMA DENNIS MCGEE, JUDGE
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