       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                                   FILED
                                                  September 17, 1997
EDNA DANIELS,                  )
                               )                  Cecil W. Crowson
       Plaintiff/Appellant,    )                 Appellate Court Clerk
                               )   Davidson Circuit
                               )   No. 92C-215
VS.                            )
                               )   Appeal No.
                               )   01A01-9702-CV-00068
DAVID WAYNE DAVIS,             )
                               )
       Defendant/Appellee.     )



      APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
                   AT NASHVILLE, TENNESSEE

              THE HONORABLE WALTER C. KURTZ, JUDGE



For the Plaintiff/Appellant:       For the Defendant/Appellee:

Keith Jordan                       Thomas F. Mink, II
Nashville, Tennessee               Keith W. Blair
                                   Nashville, Tennessee




                   VACATED AND REMANDED




                                   WILLIAM C. KOCH, JR., JUDGE
                               OPINION

      This appeal involves a woman who fell down a flight of basement stairs in
her son’s home. The woman filed suit against her son in the Circuit Court for
Davidson County alleging that her injuries were caused by the removal of a
handrail and the obstruction of the illumination on the stairs. The trial court,
relying on Eaton v. McClain, 891 S.W.2d 587 (Tenn. 1994), granted the son’s
motion for summary judgment. The woman asserts on this appeal that the
existence of genuine factual disputes should have prevented granting a summary
judgment. While the facts in this case are essentially undisputed, we have
determined that the conclusions to be drawn from the facts are not. Accordingly,
we vacate the summary judgment.


                                        I.


      In 1987 David Wayne Davis purchased a 25-year-old home on American
Road in Nashville. He lived there with his mother, Edna Daniels, one of his two
brothers, and his sister and her two children. The home had an improved
basement with an outside exit that was connected to the first floor of the house by
a steep set of stairs. These stairs were used frequently to enter and leave the
house. Mr. Davis installed a handrail on the upper portion of the stairs when he
moved into the house because he was concerned about the safety of his sister’s
children.


      In mid-1991 Ms. Daniels accepted a job as a care-taker for an elderly stroke
victim and moved out of Mr. Davis’s house. She took the job because Mr. Davis
needed additional funds to complete the renovations on his house. Ms. Daniels
still considered Mr. Davis’s house her permanent residence and visited there
frequently on the weekends.


      Mr. Davis undertook a number of home improvement projects with the help
of his brother and other family members and friends. One of these projects
involved rebuilding the basement stairs because several of the treads were weak
and because his brother told him that the pitch of the stairs was too steep. The


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project included changing the pitch of the stairs and adding four additional steps,
installing paneling and trim in the stairwell, replacing the carpet on the stairs, and
building a bookcase at the top of the stairs. Ms. Daniels was aware that her son
was rebuilding the stairs, and she had even used the stairs during construction.


      Ms. Daniels arrived at Mr. Davis’s home for a weekend visit on November
2, 1991. Early the next morning, she decided to do some grocery shopping for the
family’s Thanksgiving dinner. Ms. Daniels lost her footing as she descended the
stairs. She reached instinctively for the handrail that had been installed on the left
of the stairs, but unbeknownst to her, Mr. Davis had removed the handrail in order
to facilitate the renovations. Without the handrail to steady her, Ms. Daniels fell
against the wall and then fell the rest of the way down the stairs, injuring her right
ankle and foot. No other family members observed Ms. Daniels fall.


      Ms. Daniels sued Mr. Davis in the Circuit Court for Davidson County in
March 1992, alleging that the absence of the handrail and the reduced illumination
on the stairway resulting from the construction of the bookcase had caused her
injuries and that Mr. Davis had negligently failed either to remove or to warn her
of the dangerous condition. Mr. Davis moved for summary judgment, and on
November 20, 1996, the trial court, relying on Eaton v. McClain, 891 S.W.2d 587
(Tenn. 1994), granted the motion because “the plaintiff proceeded down the stairs,
which she was familiar with and knew were under construction and poorly lighted
and can offer no explanation as to why she slipped.” Ms. Daniels perfected this
appeal.


                                         II.


      Decisions to grant a summary judgment do not enjoy the presumption of
correctness on appeal. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Our
task on appeals from summary judgments is to determine independently whether
the moving party has satisfied the twin requirements of Tenn. R. Civ. P. 56.
Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996); Payne v. Breuer, 891
S.W.2d 200, 201 (Tenn. 1994). Tenn. R. Civ. P. 56.03 requires a party seeking a
summary judgment to demonstrate that there are no genuine disputes concerning
the material facts and that they are entitled to a judgment as a matter of law. Bain


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v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Wyatt v. A-Best Co., 910 S.W.2d
851, 854 (Tenn. 1995).


       Summary judgments are not substitutes for trials of disputed factual issues,
Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 660-61 (Tenn. 1987), and
should not be used to find facts or to choose between various factual inferences
that may be drawn from the facts. Byrd v. Hall, 847 S.W.2d 208, 216 (Tenn.
1993). The courts must view the evidence in the light most favorable to the
nonmoving party, Haynes v. Hamilton County, 883 S.W.2d 606, 613 (Tenn.
1994), and must draw all reasonable inferences in the nonmoving party’s favor.
Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994). Accordingly, courts
should grant a summary judgment only when the facts and the conclusions
reasonably drawn from the facts support the conclusion that the moving party is
entitled to a judgment as a matter of law. McCall v. Wilder, 913 S.W.2d 150, 153
(Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d at 26. They should refrain from
granting a summary judgment if any uncertainty or doubt exists with regard to the
facts or the conclusions to be drawn from the facts. Byrd v. Hall, 847 S.W.2d at
211; Poore v. Magnavox Co., 666 S.W.2d 48, 49 (Tenn. 1984).


       The nature and scope of a person’s duty in particular circumstances is a
question of law. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894
(Tenn. 1996); Blair v. Campbell, 924 S.W.2d 75, 78 (Tenn. 1996). Accordingly,
a motion for summary judgment is an appropriate vehicle for determining the
existence and scope of duty when the factual circumstances are not in dispute. See
Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn. Ct. App. 1992). In cases where the
undisputed facts demonstrate that both the plaintiff and defendant have been
negligent, a motion for summary judgment may also provide the court with a
vehicle for determining whether the fault attributable to the plaintiff was equal to
or greater than the fault attributable to the defendant. See Eaton v. McClain, 891
S.W.2d at 590 (dictum recognizing a trial court’s prerogatives in response to a
motion for directed verdict or a motion for judgment notwithstanding the verdict).1



       1
        The standards for adjudicating motions for summary judgment have frequently been
analogized to the standards for adjudicating motions for directed verdict or motions for judgment
notwithstanding the verdict. Mike v. PO Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996);
Speaker v. Cates, Co., 879 S.W.2d 811, 815 (Tenn. 1994); Jones v. Exxon Corp., 940 S.W.2d
69, 71 (Tenn. Ct. App. 1997).

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                                        III.


      Homeowners owe a duty to their social guests to use due care under all the
circumstances. Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984). They have
a duty to maintain their premises in a reasonably safe condition, and this duty
includes either removing or warning against latent dangerous conditions on the
premises that they knew or should have known about. Eaton v. McClain, 891
S.W.2d at 593-94; see also Smith v. Inman Realty Co., 846 S.W.2d 819, 823
(Tenn. Ct. App. 1992). Owners and occupiers of property do not have a duty to
protect invitees from injuries that are not reasonably foreseeable. See Doe v.
Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992). Since it is not reasonably
foreseeable that invitees will permit themselves to be injured by open and obvious
dangers, homeowners do not have a duty to warn invitees of obvious dangerous
conditions. Eaton v. McClain, 891 S.W.2d at 595.


      The Tennessee Supreme Court has used these principles to absolve a
homeowner from liability for injuries to a guest who fell down basement stairs in
the middle of the night after mistaking the basement door for the bathroom door.
The court reasoned that it was not reasonably foreseeable that a guest in search of
a bathroom in the middle of the night would not turn on a light and would walk
through a pitch black doorway into an unfamiliar area. Eaton v. McClain, 891
S.W.2d at 595-96.


      The undisputed facts relating to Ms. Daniels’s fall depict circumstances far
different from those existing in Eaton v. McClain. The stairs in this case were
used frequently to enter and leave the house, even while they were being
reconstructed. Accordingly, Mr. Davis should have foreseen that the persons
using the stairs might use the handrail to steady themselves. Since Mr. Davis had
a duty to maintain these stairs in a reasonably safe condition, he had a duty either
to provide a suitable substitute for the handrail or to warn persons using the stairs
that the handrail had been removed. There is no evidence in this case that Mr.
Davis provided either.




                                        -5-
      The undisputed facts gleaned from the depositions of Ms. Daniels and Mr.
Davis could permit a reasonable fact-finder to conclude that both Mr. Davis and
Ms. Daniels were negligent. Mr. Davis negligently failed to maintain the stairs
in a reasonably safe condition while he was rebuilding them; while Ms. Daniels
negligently failed to watch where she was going as she descended the stairs.
While Ms. Daniels’s case is razor thin, we cannot conclude that the only
reasonable conclusion to be drawn from the undisputed facts is that Ms. Daniels’s
negligence was greater than Mr. Davis’s negligence. Since we cannot conclude
as a matter of law that the negligence attributable to Ms. Daniels outweighs the
negligence attributable to Mr. Davis, we conclude that the trial court erred by
granting the summary judgment in this case. Under the facts of this case,
comparing the fault of Mr. Davis and Ms. Daniels should be left to the jury.


                                      IV.


      We vacate the summary judgment and remand the case to the trial court for
further proceedings consistent with this opinion. We also tax the costs of this
appeal to David Wayne Davis for which execution, if necessary, may issue.



                                             ______________________________
                                             WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________
SAMUEL L. LEWIS, JUDGE

________________________________
BEN H. CANTRELL, JUDGE




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