                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                 ______________________________________________   FILED
WILLIAM H. LANCE, EMMA
                                                                   February 8, 1999
LEE LANCE,
                                                                 Cecil Crowson, Jr.
       Plaintiffs-Appellants,
                                                                Appellate Court Clerk
                                                    Cheatham Circuit No. 4881
Vs.                                                 C.A. No. 01A01-9802-CV-00072

LARRY H. STREET d/b/a
STREET CONSTRUCTION,

      Defendant-Appellee.
____________________________________________________________________________

                  FROM THE CHEATHAM COUNTY CIRCUIT COURT
                   THE HONORABLE ALLEN W. WALLACE, JUDGE




                                    Grant C. Glassford;
                             Stokes & Bartholomew of Nashville
                                  For Plaintiffs-Appellants

                                 Warren M. Smith of Nashville
                                   For Defendant-Appellee




                                AFFIRMED AND REMANDED

                                        Opinion filed:




                                                          W. FRANK CRAWFORD,
                                                          PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
     This is a premises liability case. Plaintiffs-Appellants, William H. Lance and Emma Lee

Lance, appeal the order of the trial court granting summary judgment to Defendant-Appellee,

Larry H. Street d/b/a Street Construction.
        The facts as determined from the pretrial depositions of Lance and Street are basically

undisputed. Lance is a real estate agent, and on March 22, 1996, was showing some clients

houses in different subdivisions. The clients, while riding through the Tanglewood subdivision

indicated interest in a house that was under construction with a “for sale” sign in the yard. The

property was owned by Street and was under construction at the time. Lance did not have a

listing for this particular property and the “for sale” sign in the yard indicated that the listing

agent was Oscar Jones, Jr. Lance and his clients decided to enter the house in order to inspect,

although there was no one else present on the property. It is customary for real estate agents to

take clients onto property that is under construction, and Lance was familiar with potential

dangers at construction sites.

        There were no doors installed on the property. The front porch had the foundation

around it but was not completed, and it opened into part of the basement of the house. Lance

observed a board propped up from the ground to the top of the porch foundation and a second

board spanning the area from the foundation to the front doorway. With his clients behind him,

Lance ascended the inclined board and after warning his clients to be careful, preliminarily tested

the spanning board. Lance could not see how the spanning board was attached, but he put his

foot on that board and pressed slightly before he started out with his full weight on it.

Assuming it was safe to step on the board, Lance attempted to cross the board whereupon the

board slipped causing him to fall eight to ten feet into the basement sustaining serious personal

injuries.

        At the time of the accident, the house had been roofed, framed, and floored, but it is

unclear whether the siding had been completed. Steps had been constructed from the garage into

the home, but Lance had not observed the steps and was not aware of their existence until after

the accident. Neither Lance nor Street know who placed either of the boards where they were

at the time of the accident, but Street testified that it is not unusual for boards to be used during

construction for the purpose of entrance to the building. Street utilized several subcontractors

for the various jobs during the construction but does not recall the subcontractors working before

the accident that particular day.

        The complaint alleges that the defendant as the owner placed the subject property on the

market on or before March 22, 1996, and that plaintiff, William Lance, a real estate agent, was


                                                 2
showing the property to potential buyers at the time of the accident. The complaint alleges that

access to the front door of the house was provided by two boards - one providing a ramp to the

front porch, and the second spanning the front porch. The complaint avers that defendant, his

employees or agents knew or should have known of the dangerous condition, and defendant was

negligent in failing to “safeguard” the premises. William Lance avers that he sustained pain and

suffering from the injuries, permanent disability, lost earnings and earning capacity, and he

incurred extensive medical expenses. Emma Lee Lance sues for loss of consortium and loss of

services.

       Street’s answer denies the material allegations of the complaint and joins issue thereon

and further avers that plaintiff’s comparative fault exceeds any fault on the part of defendant.

       The trial court granted defendant’s motion for summary judgment. Plaintiffs have

appealed, and the only issue on appeal is whether the trial court erred in granting summary

judgment.

       A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

               Once it is shown by the moving party that there is no genuine
               issue of material fact, the nonmoving party must then
               demonstrate, by affidavits or discovery materials, that there is a
               genuine, material fact dispute to warrant a trial. In this regard,
               Rule 56.05 provides that the nonmoving party cannot simply rely
               upon his pleadings but must set forth specific facts showing that
               there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

       Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our


                                                3
review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        Lance contends that Street was under an affirmative duty to make sure the premises were

safe especially in light of the fact that the house was for sale and that Street wanted people to

view the house in order to sell it. Furthermore, Lance asserts that the undisputed facts reveal that

it was reasonably foreseeable that he would use the boards to enter the residence in that it was

customary in the construction industry to provide access such as this, in that the construction

workers used the boards to enter the house, and in that the stairs were not visible from the front

of the house. Finally, Lance argues that Street should have foreseen that a person viewing the

house would use the boards to gain entrance into the house. Thus, according to Lance, Street

was under an obligation to make sure the boards provided safe access into the house.

        Street asserts that he did not owe a duty to Lance to guarantee or insure his safety where,

by his own admission, Lance was familiar with the potential dangers consistent with houses

under construction, he failed to check for other entrances into the house which would have

revealed a completed set of stairs leading into the house, he was aware of the danger in walking

up the boards in that he told his clients to be careful, he checked the boards to assure himself that

they would hold him up, and he was not distracted while walking up the boards. Street contends

that to hold that he owed Lance a duty to prevent this particular accident would cast him in the

role of an insurer of Lance’s safety. Finally, Street asserts that he is entitled to summary

judgment in that no reasonable minds could conclude that Lance was less than fifty percent at

fault under the circumstances of the case.

        In order to bring a successful suit based on a claim of negligence, the plaintiff must

establish:

                (1) a duty of care owed by the defendant to the plaintiff; (2)
                conduct falling below the applicable standard of care amounting
                to a breach of that duty; (3) an injury or loss; (4) causation in fact;
                and (5) proximate, or legal cause.

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993) (citing McClenahan v. Cooley, 806

S.W.2d 767, 774 (Tenn. 1991); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn.

1985)). Duty, the first element of the claim, is the legal obligation a defendant owes to a plaintiff

to conform to the reasonable person standard of care in order to protect against unreasonable



                                                  4
risks of harm. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Whether a defendant owes

a duty to a plaintiff in any given situation is a question of law for the court. Bradshaw, 854

S.W.2d at 869.

       The existence and scope of the duty of the defendant in a particular case rests on all the

relevant circumstances, including the foreseeability of harm to the plaintiff and other similarly

situated persons. Pittman v. Upjohn Co., 890 S.W.2d 425, 433 (Tenn. 1994).

       In cases involving premises liability, the premises owner has a duty to exercise

reasonable care under the circumstances to prevent injury to persons lawfully on the premises.

Eaton v. McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994). This duty was based upon the

assumption that the owner has superior knowledge of any perilous condition that may exist on

the property. Kendall Oil Co. v. Payne, 41 Tenn. App. 201, 293 S.W.2d 40, 42 (1955).

       Traditionally, liability was not imposed on a premises owner by courts of this state for

injuries that resulted from defective or dangerous conditions that were “open and obvious.” See

McCormick v. Waters, 594 S.W.2d 385 (Tenn. 1980); Kendall Oil Co. v. Payne, 41 Tenn. App.

201, 293 S.W.2d 40 (1955). However, the Supreme Court of Tennessee recently restricted this

rule of law in Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998). The Coln Court held:

                 That a danger to the plaintiff was “open or obvious” does not,
                 ispo facto, relieve a defendant of a duty of care. Instead, the duty
                 issue must be analyzed with regard to foreseeability and gravity
                 of harm, and the feasibility and availability of alternative conduct
                 that would have prevented the harm. The factors provided in the
                 Restatement (Second) of Torts, § 343A relate directly to the
                 foreseeability question; in short, if the foreseeability and gravity
                 of harm posed from a defendant’s conduct, even if “open and
                 obvious,” outweighed the burden on the defendant to engage in
                 alternative conduct to avoid the harm, there is a duty to act with
                 reasonable care. The circumstances of the case are then analyzed
                 under comparative fault.

Id. at 43. The Coln Court further stated that “summary judgment remains appropriate, for

example, where the plaintiff has not produced sufficient evidence to meet the ‘duty’ component,

or any other component of a negligence claim, as a matter of law.” Id. at 44.

       The duty of a premises owner includes the obligation of the owner to maintain the

premises in a reasonably safe condition and to remove or warn against latent or hidden dangerous

conditions on the premises of which the owner is aware or should be aware through the exercise

of reasonable diligence. Eaton, 891 S.W.2d at 593-94. The scope of a premises owner’s duty



                                                  5
is grounded upon the foreseeability of the risk involved. Jones v. Exxon Corp., 940 S.W.2d 69,

72 (Tenn. App. 1996). Thus, in order to prevail in a premises liability action, the plaintiff must

show that the injury was a reasonably foreseeable probability and 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 173, 178 (Tenn. 1992).

       The condition of the porch and the presence of the boards did not create a foreseeable

probability of harm to Lance especially in light of its open and obvious nature. The house where

the accident occurred was under construction. The porch was not yet completed, and the boards

in question were utilized by construction workers for the purpose of constructing the house. The

boards were not there for the purpose of allowing real estate agents or anyone else for that

matter, except construction workers, to gain access into the house. Thus, the harm to Lance was

not reasonably foreseeable. Street did not invite or expect people, such as Lance, to use the

boards to gain entrance into the house. This is evident by the fact that a complete set of stairs

had been built in the rear of the house which were readily apparent upon inspection.

Furthermore, the only thing Street could have done to prevent the harm was to complete the

porch. Finally, it is neither fair nor feasible to impose a duty on Street to place warning signs

or to make sure there are no dangerous conditions on a construction site such as this which is by

its very nature a dangerous place.

       Following the analysis in Coln, weighing the foreseeable risk and gravity of harm against

the burden placed on the defendant in the process of home construction to engage in alternative

conduct, we conclude that the harm was not reasonably foreseeable and that no alternative

conduct was required of Street. Accord Rice v. Sabir, 979 S.W.2d 305 (Tenn. 1998). Under

the circumstances presented in this case, we hold that the defendant owed no duty to the plaintiff.

Where there is no duty, there is no negligence. See Doe v. Linder Contr. Co., 845 S.W.2d 173,

178 (Tenn. 1992). Thus, the trial court correctly granted summary judgment to the defendant.1




       1
          Even if we were to find a duty and the other components of negligence present in this
case, the negligence of the plaintiff would, at a minimum, be at least equal to the negligence of
the defendant if not greater, thus, precluding recovery on the part of the plaintiff. See McIntyre
v. Balentine, 833 S.W.2d 52 (Tenn. 1992) (A plaintiff whose negligence is less than that of a
tortfeasor may recover damages reduced by a percentage of the plaintiff’s own negligence.).

                                                6
       Accordingly, the order of the trial court is affirmed, and the case is remanded to the trial

court for such further proceedings as may be necessary. Costs of appeal are assessed against the

Appellants.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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