                   IN THE COURT OF APPEALS OF TENNESSEE
                                                                                  FILED
                                       AT KNOXVILLE                             January 28, 1999

                                                                               Cecil Crowson, Jr.
                                                                               Appellate C ourt
                                                                                   Clerk



ALLEN A. BO OZE and wife,                          )   C/A NO. 03A01-9803-CV-00095
DIANE BOOZE,                                       )
                                                   )   CUM BERL AND CIRCU IT
        Plaintiffs-Appellants,                     )
                                                   )   HON. JOHN A. TURNBULL,
v.                                                 )   JUDGE
                                                   )
FAIR FIEL D CO MM UNIT IES, IN C.,                 )
d/b/a FAIRFIELD GLADE RESORT,                      )   AFFIRMED
                                                   )   AND
        Defendant-Appellee.                        )   REMANDED




JOHN PH ILIP PARSO NS, EDW ARDS & PARSON S, Cookeville, for Plaintiffs-
Appellants.

JOE M. LOON EY, LOONEY & LOON EY, Crossville, for Defendant-Appellee.




                                         O P I N IO N


                                                                Franks, J.


                Plaintiffs’ ac tion against F airfield Co mmun ities, Inc., d/b/a Fa irfield

Glade Resort (Fairfield), was dismissed by summary judgment, and plaintiffs have

appealed. It was alleged that Fairfield, acting as an innkeeper, rented room 5621

Country Club Villas, to the plaintiffs for a period from April 6, 1994 through April 9,

1994, which is a part of a town house unit owned by William E. Rueff and Margaret

L. Rueff. The complaint further alleges that Allen Booze started down the steps

leading from his room to the sidewalk and slipped on ice which had formed on the

steps, and the fall was due to the negligence of the defendants in failing to remove the

ice or w arn plain tiffs ab out the c onditio n.
               At the time of summary judgment, plaintiffs had dismissed the Rueffs

from the action with prejudice, and the remaining defendant’s summary judgment

motion was based upon the theory that defendant was under no duty to maintain the

premises where plaintiff fell, since it was owned by another entity. It states that the

Country C lub Villas, Ph ase II, is a tow nhouse d evelopm ent created b y Fairfield

Communities, Inc., and that a Tennessee non-profit corporation was created under the

name of “Country Club Villas II Property Owners Association, Inc.,” which serves as

administrato r, manage r, and prop erty owner’s a ssociation fo r the own ers of prop erty

in Country Club Villas, Phase II. The area where plaintiff fell is classified as “limited

common property”, and the property owners association is responsible for the

maintena nce of this a rea. Thus, th e defend ant argues th at it had no d uty to maintain

the premise s where p laintiff fell, on th e basis of a n affidav it and docu ments filed with

the motion.

               In response, plaintiffs argue that they made their reservation for the

Fairfield Glade Resort Inn or Motel in Cumberland County, Tennessee, and that when

they arrived they were told by the Fairfield reservation agent that the Inn was over

booked, and they were placed in the condominium unit. They further argue that they

were in p rivity of contract w ith Fairfield, an d that Fairfie ld had the u ltimate

responsibility to made sure the premises were safe and habitable.

               While the plaintiffs made these allegations in response to the motion for

summary judgment, they did not offer any affidavit in response to the motion. The

Trial Judge , in granting su mmary judg ment, obse rved that at the time of filing this

action plaintiffs were on notice that the townhouse units where they were staying was

not owned by the defendant Fairfield Communities, Inc.

               When faced with a motion for summary judgment, a party “may neither

ignore it nor treat it lightly.” Byrd v. H all, 847 S .W.2d 208 at 2 10 (Te nn. 199 3).


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Once a party makes a properly supported motion for summary judgment, “the burden

then shifts to the non-moving party to set forth specific facts, not legal conclusions, by

using affidavits or the discovery materials listed in Rule 56.03 [now rule 56.04]

establishing that there are indeed disputed, material facts creating a genuine issue that

needs t o be res olved b y the trier of fact”. Id. at 215.

               In a negligence action, the p laintiff has the burden of p roving: “(1) a

duty of care owed b y the defendant to the plaintiff; (2) a brea ch of that duty; and (3) a

causal relation between the injury to the plaintiff and defendant’s breach of his duty of

care.” Shouse v . Otis, 224 Tenn. 1, 448 S.W.2d 673 (1969). Whether the defendant

owes the plain tiff a du ty of care is a que stion of law. Bradshaw v. Daniel, 854 S.W.2d

865, 869 (Tenn . 1993). If no duty is owed to th e plaintiff, then a grant of sum mary

judgment is appropriate, because there are not disputed material facts to submit to a

jury. See Marr v. Montgomery Elevator Co., 922 S .W.2d 526, 52 9 (Ten n. App . 1995) .

               Defendant’s motion was supported by affidavit which established that

the Property Owner’s Association for the Country Club Villas Phase II, was

responsible for the maintenance of the premises where plaintiff fell, and not the

defendant. Upon evidence that defendant had no duty to maintain the premises, the

burden sh ifted to the pla intiffs to off er evidenc e establishing facts wh ich wou ld

establish a duty, not legal conclusions. Plaintiffs’ respo nse to the motion for su mmary

judgment argued that defendant owed plaintiffs the duty to maintain, because the

defendant w as an innkeeper an d plaintiffs were guests o f the innkeeper. Innke epers

owe a duty to their guests to keep the premises reasonably safe, and the duty is non-

delegable, 40 Am.Ju r.2, Hotels, Motels, Etc. §81. We find no authority to extend such

duty to premises owned and maintained by another party, absent the innkeeper’s right

to control su ch premis es. Plaintiffs f iled no sup porting aff idavits or dep ositions to

establish material facts. Instead, they relied solely on the assertions in the complaint


                                               3
and other assertions of fact in their response. The opponent of the motion for

summary judgment may not rely on the allegations in their pleadings, but must

respond with affidavits or discovery material showing specific facts and material

issues f or trial. See Rules of Civil Procedure, Rule 56.0 6; Byrd, 847 S.W.2d 215;

Dellinger v. Pierce, 848 S.W.2d 654, 656 (Tenn. App. 1992). Plaintiffs offered no

material evid ence dispu ting defen dant’s evid ence that it did not have a duty to

maintain the premises where the injury occurred.

              Accordingly, we affirm the summary judgment granted by the Trial

Court and remand with the cost of the appeal assessed to the appellants.




                                            __________________________
                                            Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




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