                                                                                         11/21/2017
                 IN THE SUPREME COURT OF TENNESSEE
                            AT NASHVILLE
                                 October 6, 2016 Session

               CHARLES GROGAN v. DANIEL UGGLA, ET AL.
                   Appeal by Permission from the Court of Appeals
                        Circuit Court for Williamson County
                     No. 2011443 James G. Martin, III, Judge
                      ___________________________________

                            No. M2014-01961-SC-R11-CV
                       ___________________________________


SHARON G. LEE, J., dissenting.


       The primary issue is whether a home inspector owes a duty of reasonable care to a
homeowner’s guest. Viewing the facts in the light most favorable to the guest, as is
required at the summary judgment stage, it was foreseeable that a negligent inspection of
the home, and particularly the second-story deck railing, could result in a significant
injury to a guest. The foreseeability and gravity of the harm outweighs the burden on the
home inspector to protect against the harm. Due to the importance of home inspections,
public policy favors the imposition of a duty of care on the home inspector. Therefore, a
home inspector, as a matter of law, owes a duty of reasonable care to a guest of the
homeowner. Here, a jury should have had the opportunity to decide whether the home
inspector breached his duty of care. For these reasons, I dissent from the dismissal of the
guest’s claim against the home inspector.

       An essential element of a negligence claim is duty—the defendant’s legal
obligation to “conform to a reasonable person’s standard of care to protect against
unreasonable risks of harm.” Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364
(Tenn. 2009) (citing Burroughs v. McGee, 118 S.W.3d 323, 328–29 (Tenn. 2003);
McClung v. Delta Square Ltd. P’ship., 937 S.W.2d 891, 894 (Tenn. 1996)).

       A risk of harm is unreasonable when the foreseeability and gravity of potential
harm outweigh the burden imposed on the defendant to protect against the harm. See
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 365 (Tenn. 2008) (citing West v.
E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 551 (Tenn. 2005); Burroughs, 118 S.W.3d at
329; McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)); see also Downs ex rel.
Downs v. Bush, 263 S.W.3d 812, 820 (Tenn. 2008) (citing McCall, 913 S.W.2d at 153).
        A duty of care does not arise unless the plaintiff’s injury is reasonably foreseeable.
Satterfield, 266 S.W.3d at 366 (citing Doe v. Linder Constr. Co., 845 S.W.2d 173, 178
(Tenn. 1992)). But foreseeability alone is not sufficient. Id. (citing McClung, 937 S.W.2d
at 904). The probability or likelihood of harm must be significant enough to induce a
reasonable person to avoid the conduct. Id. at 367 (citing Lopez v. Three Rivers Elec.
Co-op., Inc., 26 S.W.3d 151, 156 (Mo. 2000); Knoll v. Bd. of Regents of Univ. of Neb.,
N.W.2d 757, 763 (1999)). Therefore, we focus on foreseeability and gravity of harm and
whether these factors outweigh the burden on the defendant to protect against the harm.
See Downs, 263 S.W.3d at 820 (citing McCall, 913 S.W.2d at 153). We then consider if
imposing a duty accords with “society’s contemporary policies and social requirements
concerning the right of individuals and the general public to be protected from another’s
act or conduct.” Satterfield, 266 S.W.3d at 364 (quoting Bradshaw v. Daniel, 854 S.W.2d
865, 870 (Tenn. 1993)) (internal quotation marks omitted).

        In reviewing the home inspector’s motion for summary judgment, we view the
facts in the light most favorable to the guest. Parker v. Holiday Hospitality Franchising,
Inc., 446 S.W.3d 341, 347 (Tenn. 2014) (citing Mills v. CSX Transp., Inc., 300 S.W.3d
627, 632 (Tenn. 2009)).

       In 2010, Daniel Uggla authorized his brother to locate and purchase a home for
him in Franklin, Tennessee. After finding a suitable home, Mr. Uggla’s brother signed a
sales contract contingent on a home inspection. Mr. Uggla hired Jerry Black of Pillar to
Post, Inc., to inspect the home. On September 8, 2010, Mr. Black inspected the home and
issued a report, listing several areas requiring repairs, including the wooden flooring on
the home’s second-story exterior deck. He did not report any defect in the deck railing.
After the sellers repaired the flooring, Mr. Uggla purchased the home.

       On October 8, 2010, Mr. Uggla hosted a housewarming party. During the party,
Charles Grogan walked out onto the home’s second-story exterior deck and leaned on the
deck’s wooden railing. The railing broke. Mr. Grogan fell to the ground level, sustaining
serious injuries.

       Mr. Grogan sued, alleging that Mr. Black breached his duty to use reasonable care
in conducting the home inspection by failing to discover the defective deck railing. Mr.
Grogan’s second amended complaint alleged that Mr. Black should have known that the
deck railing was not properly constructed and that its construction was not in compliance
with applicable building codes.1 The allegations of negligence, however, were not limited
only to Mr. Black’s failure to discover building code violations.
1
    Mr. Grogan alleged, in part, that:

          [Mr. Black] knew or in the exercise of reasonable care as a professional inspector should
          have known that the second floor rear exterior deck railing was constructed with interior
          finishing nails in violation of local, state and national building codes, and constituted an
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       Mr. Black denied liability and asserted in a motion for summary judgment that he
owed no duty to Mr. Grogan, who was not a party to the contract with Mr. Uggla and did
not rely on the inspection report. Mr. Black admitted in deposition testimony that one of
the goals of a home inspection is to make sure that the home is safe for future occupants
of the home. He agreed that “someone might get hurt if you don’t know whether there’s a
potential problem with that railing.” Mr. Black also agreed that railing attachments
should be inspected, corroded railing attachments should be reported, and exterior
railings should be attached with galvanized nails. The deck railing that broke did not have
galvanized nails or any visible railing attachment beyond small, corroded finishing nails.
Mr. Black did not note these deficiencies in his home inspection report.

        It is undisputed that Mr. Grogan neither contracted with Mr. Black for the home
inspection nor relied on the inspection report. Instead, Mr. Grogan visited the home as
Mr. Uggla’s guest, leaned on the deck railing, fell to the concrete surface below when the
railing broke, and sustained serious injuries. It is foreseeable that a homeowner will invite
guests to his home. It is foreseeable that a home inspector’s failure to discover or report a
dangerous defect in a second-story deck railing could lead to a serious injury to a guest of
the homeowner.

       Next, we consider whether the foreseeability and gravity of potential harm
outweighed the burden imposed on the home inspector by requiring alternative,
preventive conduct. There was no evidence of any alternative measure or that a home
inspection performed with due care would have been burdensome or costly to
accomplish.

       Finally, we consider whether imposing a duty is consistent with public policy.
Here, public policy reflects a strong interest in home inspector regulation and
accountability. “[I]nspections of residential property are of great importance to the
public,” as most Tennesseans rely on home inspectors’ specialized skills when
purchasing a home, which is “generally one of the largest and most important
investments” of their lives. Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003)
(voiding home inspection indemnification clause on public policy grounds).

       The Tennessee General Assembly enacted the Tennessee Home Inspector License
Act of 2005, 2005 Tenn. Pub. Acts, c. 65, to standardize home inspector education,
licensing requirements, and duties. See Tenn. Code Ann. §§ 62-6-301 to -308 (2009 &


       unreasonable risk of harm since it could not withstand reasonable force to prevent
       someone from falling from the second floor exterior deck. . . . [and] failed to report that
       the second floor exterior deck railing was negligently constructed in violation of local,
       state and national building codes and constituted an unreasonable risk of harm.



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2017 Supp.). Under this act, an applicant for a home inspector’s license must have
graduated from high school or received an equivalency degree, completed a ninety-hour
course focusing on home inspections and the preparation of home inspection reports, and
passed a standardized state test. See Tenn. Code Ann. § 62-6-305; see also Tenn. Comp.
R. & Regs. 0780-05-12-.04(2). The home inspection is defined as “a visual analysis for
the purpose of providing a professional opinion” on a building’s condition. Tenn. Code
Ann. § 62-6-302(3)(A). This visual examination must include exterior components such
as “[d]ecks . . . and applicable railings.” Tenn. Comp. R. & Regs.
0780-05-12-.10(13)(a)(4) (listing mandatory areas to be inspected) (emphasis added).
The inspection report must note areas not inspected and deficient components. Tenn.
Code Ann. § 62-6-302(4)(A), (B); Tenn. Comp. R. & Regs. 0780-05-12-.10(5)(a)(1), (2).
Failing to fulfill these requirements can result in professional discipline, including
revocation of the home inspector’s license. See Tenn. Code Ann. § 62-6-308(a)(7), (9).
Home inspectors must have $500,000 in insurance coverage for “general liability as well
as errors and omissions to cover all activities contemplated under [the Act].” Tenn. Code
Ann. § 62-6-305(7); accord Tenn. Comp. R. & Regs. 0780-05-12-.04(2)(g), (h);
0780-05-12-.13(1).

       Another court has considered the issue of a home inspector’s duty to a social guest
under similar facts. In Oliveira v. Jensen, No. HHDCV136045373S, 2015 WL 9809752,
at *1 (Conn. Super. Ct. Dec. 7, 2015), a guest, attending a housewarming party, was
injured when a second-story deck collapsed. A home inspector hired by the homeowner
had recently inspected the home and noted no defects. The guest sued the home inspector
for negligence. The trial court denied summary judgment, reasoning that the
foreseeability of the guest’s injury, public policy, and unresolved factual issues all
favored allowing the jury to hear the claim. Id. at *8–9.

      Under our traditional duty analysis, Mr. Black owed Mr. Grogan a duty to exercise
reasonable care in conducting the home inspection. The trial court should have denied
summary judgment and allowed the case to proceed. For these reasons, I dissent.




                                         ______________________________
                                         SHARON G. LEE, JUSTICE




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