                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 October 2, 2014 Session

 BRENDA Y. HANNAH v. SHERWOOD FOREST RENTALS, LLC, ET AL.

                    Appeal from the Circuit Court for Sevier County
                     No. 2011-0600-IV      O. Duane Slone, Judge




            No. E2014-00082-COA-R3-CV-FILED-NOVEMBER 17, 2014


This appeal results from the grant of summary judgment to the defendants in a premises
liability action. The plaintiff fell while descending a set of wooden stairs leading to a rental
cabin. The plaintiff filed the instant action against the owners of the cabin and the rental
company, which manages and maintains the cabin. In granting summary judgment to the
defendants, the trial court determined that there were no genuine issues of material fact by
which a reasonable jury could find that either defendant had actual or constructive notice of
any allegedly defective condition existing that caused or contributed to the plaintiff’s fall.
The plaintiff has appealed. Discerning no error, we affirm.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Brenda Y. Hannah.

Kenneth W. Ward, Knoxville, Tennessee, for the appellees, Sherwood Forest Rentals, LLC
d/b/a Sherwood Forest Resort; Mary Ruth Hovell; and Charles M. Hovell.

                                          OPINION

       The plaintiff, Brenda Y. Hannah, lodged at a cabin managed by the defendant,
Sherwood Forest Rentals, LLC (“Sherwood”), for a pre-wedding event for Ms. Hannah’s
daughter on October 9, 2010. This cabin was owned by Charles and Mary Ruth Hovell but
managed and maintained by Sherwood. A lengthy set of stairs served as the only means of
ingress and egress for the cabin. Ms. Hannah’s daughters and niece arrived at the cabin on
October 8, 2010, experiencing no problems with the stairs. Ms. Hannah and her sister arrived
at the cabin after dark on October 9, 2010, and ascended the stairs to enter the cabin with no
difficulty. When Ms. Hannah and her sister returned to the car to retrieve their belongings
and were in the process of descending the stairs, Ms. Hannah sustained a fall. Ms. Hannah
stated that she reached a step below halfway down and “it was like the bottom fell out.”
According to Ms. Hannah, it felt as though “there was nothing there all of a sudden.”

       Ms. Hannah suffered injuries to both feet and ankles and was unable to walk. Family
members joined to carry her into the cabin. The next morning, the family inspected the stairs
and discovered a few steps that allegedly had improperly seated nails fastening the top of the
step. The family also discovered that one of these steps allegedly “flipped” or “rocked”
forward when stepped on in a certain spot, due to missing or improperly seated nails. Ms.
Hannah’s daughter and sister described having observed the step move up and down.
According to Ms. Hannah’s sister, at least three steps manifested nails protruding two to two
and one-half inches from the top of the step. Photographs of the steps taken at the time and
showing protruding nails were subsequently made exhibits in the trial court record.

       Ms. Hannah’s sister reported the condition of the stairs to Sherwood the morning after
the accident. Sherwood’s manager, Susan Bailey, visited the cabin before Ms. Hannah’s
departure that morning and prepared a report. Ms. Bailey allegedly informed Ms. Hannah
and her family that she would have maintenance repair the steps. Ms. Hannah proceeded to
the hospital and was diagnosed with a fracture requiring surgery in her right foot. In
addition, Ms. Hannah’s left ankle was severely sprained.

       Ms. Hannah filed the instant action on September 8, 2011, against Sherwood and the
Hovells.1 The defendants subsequently filed a motion for summary judgment, asserting that
Ms. Hannah could not prove that a dangerous condition existed at the time of the injury or
that they had notice of such a condition if it did exist. In support of the motion, the
defendants filed an affidavit by Ms. Bailey, stating that she had inspected the steps on
October 10, 2010, and found nothing wrong. Ms. Bailey also stated that there had been no
prior or subsequent reports of any problems with the stairs. According to Ms. Bailey’s
affidavit, when the cabin was cleaned by Sherwood’s housekeeping staff prior to the Hannah
family checking in, no one identified any problem with the stairs. She noted that the
housekeeping staff is trained to identify and report any such maintenance concerns. Ms.
Bailey also reported that Sherwood’s maintenance staff had inspected the cabin at least once
per month prior to the injury and that no problem had been detected.


       1
         Ms. Hannah also filed suit against Jeffrey McLeod and Laura Lytle McLeod because they had
purchased the cabin from the Hovells after October 9, 2010. The McLeods were dismissed from the lawsuit
and are not parties to this appeal.

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       Mr. and Ms. Hovell likewise filed affidavits stating that there had been no problem
with the stairs noted prior to Ms. Hannah’s fall. The Hovells added that they likewise had
found no problems during their periodic visits to and inspections of the cabin.

       The trial court conducted a hearing on the summary judgment motion on November
22, 2013, and granted judgment to the defendants. The trial court found that there were no
genuine issues of material fact by which a reasonable jury could find that either Sherwood
or the Hovells had actual or constructive notice of any allegedly defective condition existing
that caused or contributed to Ms. Hannah’s fall. Ms. Hannah has appealed.

                                     II. Issue Presented

       Ms. Hannah’s brief does not contain a statement of the issues as required by
Tennessee Rule of Appellate Procedure 27. As this Court stated in Word v. Word, 937
S.W.2d 931, 932-33 n.1 (Tenn. Ct. App. 1996), although such a deficiency constitutes a
“serious violation[] of the Rules of Appellate Procedure,” this Court has the discretion to
consider the matters raised by Ms. Hannah in her brief if it chooses to do so. Accordingly,
we will, in our discretion, consider Ms. Hannah’s argument that the trial court erred in
granting summary judgment to the defendants.

                       III. Summary Judgment Standard of Review

       For actions initiated on or after July 1, 2011, such as the one at bar, the standard of
review for summary judgment delineated in Tennessee Code Annotated § 20-16-101 (Supp.
2013) applies. See Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 25 n.2 (Tenn. 2011).
The statute provides:

       In motions for summary judgment in any civil action in Tennessee, the moving
       party who does not bear the burden of proof at trial shall prevail on its motion
       for summary judgment if it:

       (1)    Submits affirmative evidence that negates an essential element of the
              nonmoving party’s claim; or

       (2)    Demonstrates to the court that the nonmoving party’s evidence is
              insufficient to establish an essential element of the nonmoving party’s
              claim.




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Tenn. Code Ann. § 20-16-101.2

      As our Supreme Court has explained:

      The standards by which appellate courts customarily review decisions to grant
      or deny motions for summary judgment are well-known by the bench and bar.
      Summary judgments are appropriate in virtually every civil case that can be
      resolved on the basis of legal issues alone. They are not appropriate when
      genuine disputes regarding material facts exist. Accordingly, a summary
      judgment is appropriate only when the undisputed facts, and the inferences in
      the non-moving party’s favor reasonably drawn from these facts, require
      granting a judgment as a matter of law to the party seeking the summary
      judgment.

      Orders granting a summary judgment are not entitled to a presumption of
      correctness on appeal. Thus, appellate courts reviewing an order granting a
      summary judgment must make a fresh determination that the requirements of
      Tenn. R. Civ. P. 56 have been satisfied. The reviewing court must consider
      the evidence in the light most favorable to the non-moving party and must
      resolve all reasonable inferences in the non-moving party’s favor.

B & B Enter. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 844-45 (Tenn. 2010)
(internal citations omitted).




      2
          As this Court has explained:

                 Section 20-16-101 was enacted to abrogate the summary-judgment standard
                 set forth in Hannan [v. Alltell Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008)],
                 which permitted a trial court to grant summary judgment only if the moving
                 party could either (1) affirmatively negate an essential element of the
                 nonmoving party’s claim or (2) show that the nonmoving party cannot
                 prove an essential element of the claim at trial. Hannan, 270 S.W.3d at 5.
                 The statute is intended “to return the summary judgment burden-shifting
                 analytical framework to that which existed prior to Hannan, reinstating the
                 ‘put up or shut up’ standard.” Coleman v. S. Tenn. Oil Inc., No. M2011-
                 01329-COA-R3-CV, 2012 WL 2628617, at *5 n.3 (Tenn. Ct. App. July 5,
                 2012).

      Walker v. Bradley County Gov’t, No. E2013-01053-COA-R3-CV, 2014 WL 1493193 at *3
      n.3 (Tenn. Ct. App. Apr. 15, 2014). See also Sykes, 343 S.W.3d at 25 n.2.

                                                    -4-
                                  IV. Premises Liability

        Ms. Hannah concedes that a party seeking recovery under a theory of premises
liability must establish the elements of negligence, including:

      1.     A duty of care owed by the defendants to the plaintiff;

      2.     Conduct by the defendants falling below the 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.

See Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150,
153 (Tenn. 1995). As our Supreme Court has explained:

      In a premises liability case, an owner or occupier of premises has a duty to
      exercise reasonable care with regard to social guests or business invitees on the
      premises. The duty includes the responsibility to remove or warn against latent
      or hidden dangerous conditions on the premises of which one was aware or
      should have been aware through the exercise of reasonable diligence. See
      Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996); Eaton v. McLain, 891
      S.W.2d 587, 593-94 (Tenn. 1994). Although the traditional rationale for
      imposing this duty was the owner’s superior knowledge of conditions on the
      premises, see e.g., Kendall Oil v. Payne, 41 Tenn. App. 201, 293 S.W.2d 40,
      42 (Tenn. App. 1955), we recently held that a duty may exist even where the
      injury-causing condition is alleged to be “open and obvious” to the plaintiff.
      We explained:

             That a danger to the plaintiff was ‘open or obvious’ does not,
             ipso 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, § 343(A) relate
             directly to the foreseeability question; in short, if the
             foreseeability and gravity of harm posed from a defendant’s

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               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.

       Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn.1998).3

       The duty imposed on the premises owner or occupier, however, does not
       include the responsibility to remove or warn against “conditions from which
       no unreasonable risk was to be anticipated, or from those which the occupier
       neither knew about nor could have discovered with reasonable care.” Prosser
       and Keeton on Torts, supra, § 61 at 426. In this regard, “the mere existence of
       a defect or danger is generally insufficient to establish liability, unless it is
       shown to be of such a character or of such duration that the jury may
       reasonably conclude that due care would have discovered it.” Id. at 426-27.
       As we explained in Doe v. Linder Const. Co., 845 S.W.2d 173, 178 (Tenn.
       1992):

               Foreseeability is the test of negligence. If the injury which
               occurred could not have been reasonably foreseen, the duty of
               care does not arise, and even though the act of the defendant in
               fact caused the injury, there is no negligence and no liability.
               ‘[T]he plaintiff must show that the injury was a reasonably
               foreseeable probability, not just a remote possibility, and that
               some action within the [defendant’s] power more probably than
               not would have prevented the injury.’

       (emphasis added) (citations omitted).

Rice, 979 S.W.2d at 308-09.

        In this case, Ms. Hannah argues that she provided testimony and photographic
evidence of the existence of a dangerous condition with regard to the stairs. The defendants
posit, however, that they countered this evidence with proof that they had no knowledge of
any defect in the stairs. Ms. Bailey’s affidavit establishes that the cabin was rented to a third
party before the accident as recently as October 3, 2010, and no problems were experienced.
Further, Sherwood’s housekeeping staff cleaned the property and noted no dangerous or
defective condition before Ms. Hannah and her family checked in. Likewise, the


       3
        We note that Coln was overruled on other grounds by Cross v. City of Memphis, 20 S.W.3d 642
(Tenn. 2000).

                                                -6-
maintenance staff did not notice any problematic condition during their periodic inspections.
No other falls or incidents were reported prior or subsequent to Ms. Hannah’s fall.

       As our Supreme Court has further explained:

       Business proprietors are not insurers of their patrons’ safety. However, they
       are required to use due care under all the circumstances. Martin v.
       Washmaster Auto Ctr., U.S.A, 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996).
       “Liability in premises liability cases stems from superior knowledge of the
       condition of the premises.” McCormick v. Waters, 594 S.W.2d 385, 387
       (Tenn. 1980). In order for an owner or operator of premises to be held liable
       for negligence in allowing a dangerous or defective condition to exist on its
       premises, the plaintiff must prove, in addition to the elements of negligence,
       that: 1) the condition was caused or created by the owner, operator, or his
       agent, or 2) if the condition was created by someone other than the owner,
       operator, or his agent, that the owner or operator had actual or constructive
       notice that the condition existed prior to the accident. Martin v. Washmaster
       Auto Center, U.S.A, 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996) (citing Ogle
       v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47 (Tenn. App. 1995); Jones
       v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. App. 1980)). We have previously
       held that constructive notice can be established by proof that the dangerous or
       defective condition existed for such a length of time that the defendant, in the
       exercise of reasonable care, should have become aware of the condition.
       Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986).

Blair v. W. Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). This Court has also held that in
addition to considering the length of time the condition existed, the trial court should also
consider “the nature of the business, its size, the number of patrons, the nature of the danger,
its location along with the foreseeable consequences.” See Paradiso v. Kroger Co., 499
S.W.2d 78, 79 (Tenn. Ct. App. 1973). Indeed, “[t]he key to premises liability is
foreseeability.”      See Rogers ex rel. Wright v. Autozone Stores, Inc., No.
M2011-02606-COA-R3-CV, 2012 WL 3594342 at *6 (Tenn. Ct. App. Aug. 21, 2012). “For
a plaintiff to prevail in a premises liability case, he or she must prove 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.’” Id. (quoting Dobson v. State, 23
S.W.3d 324, 330 (Tenn. Ct. App. 1999)).

      Assuming, arguendo, that a dangerous condition existed with regard to the stairs, Ms.
Hannah presented no proof that the condition was caused or created by either Sherwood or
the Hovells. Therefore, Ms. Hannah would be required to show that Sherwood or the

                                              -7-
Hovells had actual or constructive notice that the dangerous condition existed prior to her
fall. See Blair, 130 S.W.3d at 764. Ms. Hannah did not demonstrate actual notice as there
was no proof that there had been any prior incidents or complaints regarding the condition
of the stairs. Therefore, Ms. Hannah would be required to prove constructive notice by
establishing that the condition existed for such a length of time or was of such a nature that
Sherwood or the Hovells, in the exercise of reasonable care, should have become aware of
it. Id.; see also Paradiso, 499 S.W.2d at 79.

       As defendants point out, Ms. Hannah’s family stayed at the cabin for twenty-four
hours before her arrival and did not observe any problem with the stairs, despite having
traversed the stairs multiple times. Ms. Hannah likewise testified that she saw nothing wrong
with the stairs before she fell. There were no prior reports of any issue with these stairs from
other invitees or from the housekeeping or maintenance staff of Sherwood. Therefore,
defendants assert that this was, at most, a latent dangerous condition of which they had no
actual or constructive knowledge. Having carefully reviewed the record, we agree.

        This case is similar to Paradiso, 499 S.W.2d at 79, wherein the plaintiff fell inside a
store after scraping her leg on a piece of metal projecting from the bottom of a display rack.
 Upon later inspection, a nail was discovered on the floor near the rack, which had come
loose from the molding, allowing the molding to project four or five inches into the checkout
lane. Id. The plaintiff filed a premises liability action, and the trial court entered a directed
verdict for the defendant store. Id. This Court affirmed that ruling, stating:

       In this case we have absolutely no proof as to what caused the protruding
       metal to come loose from the display rack nor is there any proof as to when the
       metal came loose or the length of time it had been protruding.

       In this case when the evidence is reviewed in the light most favorable to the
       plaintiff, we find no proof from which it can be logically inferred the
       defendant Kroger breached its duty and obligation to plaintiff of using ordinary
       care to maintain the premises in a reasonably safe condition. To establish
       constructive notice requires some material competent evidence from which it
       can be logically inferred the proprietor, by the exercise of ordinary care, would
       have or should have discovered the dangerous condition.

       Here there is absolutely no proof as to the condition of the display rack prior
       to the molding coming loose. Neither is there proof as to how or when the
       molding came loose or what length of time and under what circumstances the
       defective condition existed. In the absence of evidence on those vital elements
       any conclusion of the trier of fact would have to be based on conjecture and

                                               -8-
       speculation which would violate the cardinal rule that such conclusion must
       be supported by evidence.

       Therefore, since there is no evidence to support a conclusion the defendant
       knew or should have known of the defective condition of the rack, we sustain
       the trial judge’s action of directing a verdict.

Paradiso, 499 S.W.2d at 80 (internal citations omitted).

        Also factually on point is the case of Rogers ex rel. Wright, 2012 WL 3594342 at *6.
In Rogers, the plaintiff entered an Autozone store on a rainy day, made a purchase, borrowed
a funnel from the sales clerk, and left the store. Id. The plaintiff used the funnel and then
re-entered the store to return the item to the clerk. Id. Upon leaving the counter and walking
toward the exit, the plaintiff slipped in a puddle of water and fell, injuring herself. Id. The
plaintiff filed a premises liability action against the store regarding her injuries. Id.

       The Rogers trial court granted summary judgment to the defendant store, and this
Court affirmed that ruling. Id. As this Court explained:

       In viewing this case in the light most favorable to Ms. Wright, we can find no
       proof in the record that could potentially establish that Autozone had
       constructive knowledge of the puddle that caused Ms. Wright to fall. Even
       taking into consideration the fact that the puddle was the size of a plant pot and
       that the employee could have seen the puddle from the counter, we do not
       believe that there is any evidence to infer that Autozone should have
       discovered the puddle’s existence when Ms. Wright was the only person in the
       front of the store during the 15 to 20 minutes prior to the fall. While the
       employees were not tasked with patrolling the store for spills at set times, they
       had been instructed to clean any spills that they encountered. We do not
       believe that a lapse of approximately 20 minutes between general inspections
       was unreasonable when, according to Ms. Palmore, there was only one
       customer in the front of the store during that time period. Additionally, we
       cannot say that an employee would have discovered the puddle when Ms.
       Wright, who admitted that she was only a few steps away from the puddle
       when she first left the store, did not even notice the puddle in her successive
       trips in and out of the store. Without any additional evidence regarding the
       source of the puddle or the actual length of time that the puddle was present,
       we hold that there was not any material evidence from which the trier of fact
       could infer that the dangerous condition existed for such a length of time that
       one exercising reasonable care would have discovered it. Accordingly, we

                                              -9-
       conclude that the trial court did not err in granting the motion for summary
       judgment.

Rogers ex rel. Wright, 2012 WL 3594342 at *7.

        Similarly, here, Ms. Hannah produced no evidence to show that Sherwood or the
Hovells should have discovered this stairway condition. There was no evidence to
demonstrate how long the condition had existed or what caused it. No prior invitees upon
the premises had noted a problem, including Ms. Hannah’s family. The Sherwood
housekeeping staff had regularly and recently cleaned the cabin, discovering no problem with
the condition of the stairs. The Sherwood maintenance staff had regularly inspected the
cabin and noted no issues. Further, Ms. Hannah herself had once traversed the stairs,
encountering no difficulty. Considering these facts, we conclude that the trial court did not
err in granting summary judgment to the defendants, based on the lack of material evidence
from which a trier of fact could conclude that the defendants should have, in the exercise of
reasonable care, discovered this condition. We therefore affirm the trial court’s grant of
summary judgment to the defendants.

                                       V. Conclusion

       For the reasons stated above, we affirm the judgment of the trial court. Costs on
appeal are taxed to the appellant, Brenda Y. Hannah. This case is remanded to the trial court,
pursuant to applicable law, for collection of costs assessed below.




                                                    _________________________________
                                                    THOMAS R. FRIERSON, II, JUDGE




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