                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                        December 13, 2002 Session

       LEAH MICHELLE MILLER, ET AL. v. GARY RAY HILL, ET AL.

                             Appeal from the Circuit Court for Knox County
                             No. 3-188-99 Wheeler A. Rosenbalm, Judge

                                          FILED JANUARY 31, 2003

                                        No. E2002-02018-COA-R3-CV



Leah Michelle Miller, a minor, was injured while attempting to dismount a trampoline in the yard
of a two-story duplex. Her parents, Robert G. Miller and Brenda Gail Miller (“the plaintiffs”)1,
rented the lower unit of the duplex. The Millers sued their landlords, Gary Ray Hill and Martha Hill
(“the Landlords”). They also named as defendants the occupants of the upstairs unit, Steve Cooper
and Tanya Caldwell. The suit against these latter two defendants was based upon their ownership
of the trampoline. The Landlords moved for summary judgment. They essentially argued that they
owed no duty of care to the plaintiffs or their child with respect to the trampoline. The trial court
granted the motion and entered a final judgment pursuant to Tenn. R. Civ. P. 54.02. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., joined. HERSCHEL P. FRANKS , J., filed a dissenting opinion.

James M. Crain, Knoxville, Tennessee, for the appellants, Leah Michelle Miller, by next friend,
Brenda Gail Miller, Robert G. Miller and Brenda Gail Miller, individually.

Robert A. Crawford and Laura Bradley Myers, Knoxville, Tennessee, for the appellees, Gary Ray
Hill and Martha Hill.




                                                      OPINION

       1
           W hen we refer to the plaintiffs, we are talking about Mr. and M rs. Miller.
                                                          I.


       The Landlords were the owners of a duplex-styled rental house located at 8626 Hill Road in
Knoxville. The house had two rental units; Unit A consisted of the second story while Unit B was
the ground floor unit.

        Unit A – the upper level – was rented first. It was leased to Tanya Caldwell and Steve
Cooper, the latter being the brother of Martha Hill, one of the Landlords. For ease of reference, we
will refer to these tenants as “the tenants Cooper.” The tenants Cooper placed a trampoline in the
side yard of the leased premises.

       On or about May 16, 1997, the Landlords entered into a written lease with the plaintiffs for
Unit B – the lower unit. When the plaintiffs moved with their two children into their unit, the
trampoline was already in the yard. The plaintiffs’ written lease contains the following provision
labeled “Yard Maintenance:”2

                  It is the Lessee’s responsibility to maintain and mow the lawn, yard
                  and hedges on a regular semi-monthly basis.

       The plaintiffs allowed both of their children to use the trampoline, provided they first
received permission from one of the tenants Cooper.

        On or about March 25, 1998, Leah Miller, who was then almost nine years old, fell while
trying to dismount the trampoline owned by the tenants Cooper. As a result of the fall, the child
sustained a fracture to her elbow.

       It is undisputed that both the plaintiffs and the tenants Cooper had the right to use the yard
associated with the duplex residence. In other words, the land surrounding the structure was for the
common use of the two families.

                                                          II.

        The plaintiffs sued on behalf of their daughter and also in their individual capacities. Their
original complaint charged that their daughter’s foot “was caught by a portion of the padding on the
frame of the trampoline which had come unlaced.” The original complaint alleged the following as
pertinent to the Landlords’ liability:

                   ... the trampoline maintained by [the tenants Cooper] with the
                   knowledge and consent of [the Landlords] constitutes an attractive


       2
           The lease signed by the tenants Coop er apparently contained the same provision.

                                                         -2-
                   nuisance; that all [d]efendants had actual knowledge of the regular
                   use of said trampoline that [sic] by Leah Miller, that [d]efendants, by
                   maintaining said attractive nuisance on this property, had a duty to
                   assure that the same was properly maintained; and that [p]laintiffs
                   [sic] injuries are direct and proximate result of their failure to perform
                   this duty.

The plaintiffs subsequently amended their complaint to add the following:

                   Plaintiffs further aver that [the Landlords] knew that [the tenants
                   Cooper] maintained this trampoline in the common area on their
                   property; that [the Landlords], as landlords of [p]laintiffs, had the
                   duty under TCA [§] 66-28-304(a)(3) to keep the common areas of the
                   property in a safe condition; that this is a non-delegatable [sic] duty,
                   that they failed or neglected to conduct any inspections of the
                   trampoline to determine its continuing safety, and that their failure to
                   do so is a proximate cause of the injuries suffered by ... Leah Miller.

                   Plaintiffs further aver that [the Landlords] knew that the trampoline
                   located in the common area of this rental property was used not only
                   by the children of [the tenants Cooper], but also by [p]laintiffs’
                   children, [the Landlords’] own children, and other children in the
                   neighborhood; that accordingly, under the playground doctrine, [the
                   Landlords] had an obligation to maintain the property in a safe
                   condition for such playing children, even as to trespassers; that they
                   failed to perform this duty; and that their failure was a proximate
                   cause of the injuries suffered by ... Leah Miller.

(Numbering of paragraphs omitted).

       Liberally construing the plaintiffs’ complaint, as amended, we perceive that it asserts claims
against the Landlords based upon three theories: the common law; Tenn. Code Ann. § 66-28-
304(a)(3) (1993)3; and the playground doctrine.



                                                          III.



       3
           Tenn. Code Ann. § 6 6-28-30 4(a)(3) p rovides as follows:

                   The landlord shall: ... (3) [k]eep all common areas of the premises in a clean and
                   safe condition;

                                                          -3-
        In deciding a case in which the propriety of summary judgment is the issue, we must decide
anew “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. Since a motion for
summary judgment presents a pure question of law, our review is de novo with no presumption of
correctness as to the trial court’s judgment. See, e.g., Sullivan v. Baptist Memorial Hosp., 995
S.W.2d 569, 571 (Tenn. 1999).

        While there are disputes between the parties as to certain facts, we find the facts that are
material to the disposition of the Landlords’ motion are not in dispute. See Byrd v. Hall, 847
S.W.2d 208, 215 (Tenn. 1993). Thus, the only question for us is whether those undisputed material
facts “show ... that the moving party [i.e., the Landlords] is entitled to a judgment as a matter of
law.” Tenn. R. Civ. P. 56.04.

                                                  IV.

                                                  A.

       At common law, “where 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 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). A landlord must act to correct a defective condition
within a reasonable period of time once the landlord has actual or constructive notice of the
condition. Id. at 348. “Thus, 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.” Id.

        In Tedder, the Court of Appeals addressed the issue “of a landlord’s liability to tenants for
criminal acts by third parties on the leased premises,” in a case involving a shooting at a multi-tenant
apartment building. Id. at 345. While the facts of the instant case are significantly different from
those found in Tedder, that case is helpful because it examines the rationale behind the landlord’s
duty with respect to common areas:

               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


                                                  -4-
               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.

Id. at 347.

       The plaintiffs argue that, since the trampoline was located in a common area and since the
Landlords were responsible for the common areas in this multi-tenant piece of real property, the
Landlords were under a duty to keep the trampoline “in good repair and in safe condition,” 17 Tenn.
Jur. Landlord & Tenant § 23, at 342 (1994), and that their failure to do so imposes liability upon
them for the claims asserted in the complaint.

         The plaintiffs cite several cases in support of their position. See Woods v. Forest Hill
Cemetery, Inc., 183 Tenn. 413, 425, 192 S.W.2d 987, 991 (1946); Wilcox v. Hines, 100 Tenn. 538,
558, 46 S.W. 297, 302 (1898); Stephen v. Murphree, 58 Tenn. App. 497, 506, 433 S.W.2d 673, 677
(1968); Grizzell v. Foxx, 48 Tenn. App. 462, 467-68, 348 S.W.2d 815, 817 (1960). The cases cited
by the plaintiffs deal with walkways and passageways, but not yards as such. Nevertheless, we agree
with the plaintiffs that the yard surrounding this duplex residence qualifies as a common area. We
reject the Landlords’ argument that the tenants’ “responsibility to maintain and mow the lawn, yard
and hedges” in some way relieves the Landlords of their responsibility regarding safety issues with
respect to what is otherwise clearly a common area. The tenants’ responsibility to groom the yard
does not convert the yard into something other than a common area. The yard was made available
by the Landlords for the common use of the tenants, their children and guests; in our judgment, it
qualifies as a common area subject to rules applicable to such areas.

        We disagree, however, with the plaintiffs’ contention that a landlord’s duty with respect to
common areas such as stairs, passageways, and yards extends to a free-standing trampoline owned
by one of the tenants. The plaintiffs have cited no cases, nor are we aware of any, extending the duty
of a landlord to an item of personalty such as the tenant-owned trampoline in the instant case.

        We also note that the rationale for the landlord’s duty with respect to common areas, as
expressed in the Tedder case, 728 S.W.2d at 347, simply does not apply to a free-standing
trampoline owned by a tenant. This is not a case where the landlord “is in a far superior position to
take steps necessary to secure the premises for the safety of the tenants.” Id. In our judgment, the
tenant who owned the trampoline and made it available for his family and others was in a much
better position to look after what is admittedly not the landlords’ personal property.

        It is important to note what this case is not about. We are not dealing with personal property
that becomes so affixed to the property as to become a part of the realty; nor are we dealing with
personalty brought onto the property by a landlord and placed in a common area for the use of the
tenants and possibly others. We also are not dealing with personal property known by a landlord to
be in an unsafe condition. There is nothing in the record before us indicating that the Landlords


                                                 -5-
knew, or had reason to know, that the condition of the trampoline was such as to present a safety
hazard. We do not have any of these situations before us and, therefore, do not need to reach issues
that might be presented by them.

       We hold that the landlords are entitled to summary judgment on the plaintiffs’ theory of a
landlord’s common law duty with respect to common areas.

                                                 B.

       The plaintiffs also argue that Tenn. Code Ann. § 66-28-304, a part of the Uniform Residential
Landlord and Tenant Act, Tenn. Code Ann. § 66-28-101 et seq. (1993 & Supp. 2002) (“the
URLTA”), provides a basis for a cause of action against the Landlords. The statute provides, in
pertinent part, as follows:

               (a) The landlord shall:
                                           * * *
               (3) Keep all common areas of the premises in a clean and safe
               condition;
                                           * * *

(Emphasis added).

        The URLTA is applicable to Knox County. See Tenn. Code Ann. § 66-28-102(a)(1). While
the statutory scheme addresses “common areas,” it does not define this concept. In the absence of
a different definition, we believe these words should be defined with reference to the well-
established meaning given them in the cases addressing a landlord’s common law duty with respect
to the areas used in common by multiple tenants. Even if the URLTA is viewed as being in
derogation of common law,

               ... “statutes in derogation of the common law are to be strictly
               construed and confined to their express terms.” Ezell v. Cockrell, 902
               S.W.2d 394, 399 (Tenn. 1995) (citing Cardwell v. Bechtol, 724
               S.W.2d 739, 744 (Tenn. 1987)). Strict construction amounts to a
               “recognition of a presumption against the legislature’s intention to
               change existing law.” Jordan v. Baptist Three Rivers Hospital, 984
               S.W.2d 593, 599 (Tenn. 1999). Thus, common law is not displaced
               by a legislative enactment, except to the extent required by the statute
               itself. See Lavin v. Jordon, 16 S.W.3d 362, 368 (Tenn. 2000).

Houghton v. Aramark Educ. Resources, Inc., 90 S.W.3d 676, 678-79 (Tenn. 2002).

       We are not aware of any cases under the URLTA, in Tennessee or elsewhere, where liability
has been extended in the manner urged by the plaintiffs. We do not believe the General Assembly,


                                                 -6-
by this statute, intended to extend a landlord’s duty with respect to a yard area to include a tenant’s
personalty, in this case a free-standing trampoline, i.e., unattached to the land. See Harbison v.
Jeffreys, 353 S.W.2d 65, 69, 70 (Tex. Civ. App. 1961) (applying Texas common law and discussing
an injury attributed to a swing set on leased premises).

        We recognize, as set forth in the plaintiffs’ statement of undisputed facts, that their lease
granted the Landlords the right to enter the leased premises for certain purposes;4 that the defendant
Gary Ray Hill, one of the Landlords, testified that he was aware “a trampoline could be a dangerous
object if its use was not carefully supervised, or if it were not carefully maintained;” and that the
Landlords never inspected the trampoline. We do not find any of these facts to be material to the
issues before us on the plaintiffs’ three theories of recovery.

      The undisputed material facts conclusively show that the Landlords are entitled to summary
judgment on the plaintiffs’ URLTA claim.

                                                            C.

        Turning to the plaintiff’s third theory, we find the playground doctrine inapplicable to the
present case. In Tennessee, the playground doctrine is a corollary of the attractive nuisance doctrine:

                   The elements of attractive nuisance in Tennessee are essentially those
                   outlined in the Restatement (Second) of Torts, § 339, [at 197 (1965)]
                   entitled “Artificial Conditions Highly Dangerous to Trespassing
                   Children:”

                            “. . . (a) the place where the condition exists is one
                            upon which the possessor knows or has reason to
                            know that children are likely to trespass, and

                            (b) the condition is one of which the possessor knows
                            or has reason to know and which he realizes or should
                            realize will involve an unreasonable risk of death or
                            serious bodily harm to such children, and




       4
           The lease provid es as follows:

                   ACCESS BY TH E LE SSO R. The lessor in perso n or b y agent, shall have the right,
                   at all reasonable times, to enter the leased premises and inspect same, or to make
                   such repairs, additions or alteratio ns as may be d eemed ne cessary for the sa fety,
                   comfort or preservation of said building or to show the premises to prospective
                   tenants or purchasers. No advance notice will be required for maintenance request
                   made by lessee.

                                                           -7-
                       (c) the children because of their youth do not discover
                       the condition or realize the risk involved in
                       intermeddling with it or in coming within the area
                       made dangerous by it, and

                       (d) the utility to the possessor of maintaining the
                       condition and the burden of eliminating the danger are
                       slight as compared with the risk to children involved,
                       and

                       (e) the possessor fails to exercise reasonable care to
                       eliminate the danger or otherwise to protect the
                       children.”

               In applying the doctrine of attractive nuisance, however, the
               Tennessee cases have consistently maintained the requirement that
               the injured child be enticed or lured onto defendant’s premises by the
               instrumentality or condition causing the harm. This rather harsh
               requirement is modified, however, by application of the playground
               doctrine under which liability may be established if “the landowner
               knows or, by the exercise of reasonable care, should know that
               children of immature years are habitually trespassing upon his land to
               use it as a playground, under conditions other than natural, which the
               landowner knows or should know involve an unreasonable risk of
               bodily injury and which children because of their youth will fail to
               discover and appreciate.” The enticement or allurement requirement
               of the attractive nuisance doctrine in Tennessee and the theory of the
               playground doctrine are essentially the same as the first element of
               the Restatement rule, requiring that the landowner must know or have
               reason to know of the presence of trespassing children.

Metropolitan Gov’t of Nashville and Davidson County v. Counts, 541 S.W.2d 133, 136 (Tenn.
1976) (citations omitted).

        We hold that the playground doctrine is not applicable to the facts presently before this court.
This doctrine applies to trespassing children, children who have been “enticed or lured onto
defendant’s premises by the instrumentality or condition causing the harm.” Id. In the instant case,
it is undisputed that Leah Michelle Miller was not a trespasser. The plaintiffs had a possessory
interest in the realty where their daughter was injured. She had the permission of the tenants Cooper
to use the trampoline. The purpose of the playground/attractive nuisance doctrine is not to create
a cause of action against a landlord, but rather to enlarge a landowner’s duty of care to young




                                                  -8-
children, from that owed to a trespasser to that owed to an invitee. Bloodworth v. Stuart, 221 Tenn.
567, 571, 428 S.W.2d 786, 788 (1968).5

       Since the playground doctrine, by its terms, has no application to the plaintiffs’ child, we find
no basis in the facts of this case to use it to support the plaintiffs’ claims in this litigation.



                                                         V.

        The judgment of the Knox County Circuit Court is affirmed. Costs on appeal are assessed
to Leah Michelle Miller, Brenda Gail Miller, and Robert G. Miller. This case is remanded to the trial
court for the collection of costs assessed there, pursuant to applicable law.



                                                               _______________________________
                                                               CHARLES D. SUSANO, JR., JUDGE




         5
          W hile Blood wo rth does not use the term “invitee,” we use it because the distinction between licensees and
invitees has been ab olished since that case was decided . See Hudson v. Gaitan, 675 S.W .2d 699, 704 (Tenn. 1984 ).

                                                         -9-
