                                                                                          12/18/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 14, 2019 Session

         LISA PRIESTAS ET AL. v. KIA PROPERTIES, LLC ET AL.

                  Appeal from the Circuit Court for Shelby County
                  No. CT-005046-15 Robert Samual Weiss, Judge
                     ___________________________________

                           No. W2019-00728-COA-R3-CV
                       ___________________________________


In this premises liability case, Mr. Priestas, an independent contractor, filed suit against
Appellees, the owner/landlord and lessee of a convenience store, seeking damages for
injuries he sustained during an attempted robbery at the store. The trial court granted
Appellees’ motion for summary judgment, finding that: (1) the lessee did not breach its
duty because: (a) Mr. Priestas was an independent contractor; (b) he was aware of the
danger at the store; and (c) he was warned that the store had been robbed on several
occasions; and (2) the owner/landlord was not liable because of the general rule of non-
liability of a landlord for harm caused to a third party on leased premises. Discerning no
error, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S. and CARMA DENNIS MCGEE, J., joined.

Gary L. Jewel, Memphis, Tennessee, and Lucille Anne Jewel, Knoxville, Tennessee, for
the appellant, Lisa Priestas.

John I. Houseal, Jr., and Andre B. Mathis, Memphis, Tennessee, for the appellees, Kia
Properties, LLC, and Chinai Food & Fuel, LLC.

                                        OPINION

                                      I. Background

       On December 9, 2015, Gary Priestas and his wife, Lisa Priestas (“Appellant”),
filed a premises liability action in the Circuit Court of Shelby County, Tennessee (the
“trial court”).1 The Priestases sought damages for injuries sustained by Mr. Priestas
when he was shot during a robbery at property owned by Kia Properties, LLC (“Kia”)
and leased for use as a convenience store by Chinai Food & Fuel, LLC (“Chinai,” and
together with Kia, “Appellees”).

       On May 18, 2017, Appellees filed a joint motion for summary judgment. One
year later, on May 18, 2018, Appellant filed a response in opposition to the motion for
summary judgment. However, Appellant did not file a response to the statement of
undisputed material facts, nor did Appellant file a statement setting forth disputed facts in
opposition to the motion for summary judgment. As such, the facts of the case, as set
forth by Appellees, are undisputed for purposes of summary judgment.2 Appellees’
statement of undisputed material facts provides:

            1. At all times pertinent, Kia owned real property located at 9112
               Austin Peay Highway, Millington, Tennessee 38053 (the
               “property”).

            2. In September 2014, Chinai entered into an installment sales contract
               with Kia to purchase the property.

            3. At all pertinent times, Chinai operated a convenience store and fuel
               station.

            4. In early 2015, Plaintiff Gary Priestas drove by Chinai store and
               noticed a number of police cars at the store.

            5. Mr. Priestas stopped his car and walked inside the store and spoke
               with one of the owners of Chinai, Manish Chinaiwala. Mr.
               Chinaiwala advised Mr. Priestas that the store had just been robbed.

            6. A few days later, Mr. Priestas was at the Chinai store and Mr.
               Chinaiwala asked Mr. Priestas if he could work at Chinai a few
               hours a day to perform tasks such as stocking the store’s coolers and
               cleaning up inside and outside of the store.

            7. Mr. Priestas began working at Chinai in February 2015.

        1
          Mr. Priestas died on July 17, 2016. By order of October 28, 2016, Lisa Priestas, as Executrix of
Mr. Priestas’ estate, was substituted as plaintiff. On December 20, 2016, she filed an amended complaint.
        2
          Rule 56.03 of the Tennessee Rules of Civil Procedure provides that “[a]ny party opposing the
motion for summary judgment must . . . serve and file a response to each fact set forth by the movant . . .
.” This Court has held that “material facts set forth in the statement of the moving party may be deemed
admitted in the absence of a statement controverting them by the opposing party.” Holland v. City of
Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003).
                                                   -2-
         8. Mr. Chinaiwala informed Mr. Priestas that Chinai had been
            burglarized/robbed on several prior occasions.

         9. Mr. Priestas advised Mr. Chinaiwala that he had a license for a
            concealed carry permit and that he would be carrying a concealed
            firearm as he performed his duties at Chinai, “especially since they
            had been held up on multiple occasions since [Mr. Chinaiwala] had
            acquired the business.”

         10. On the evening of April 18, 2015, Mr. Priestas went to work at
             Chinai at approximately 7:00 p.m.

         11. Mr. Priestas was armed.

         12. As usual, he stocked the coolers and swept inside the store.

         13. At approximately 8:30 p.m., Mr. Priestas was walking outside [] the
             store to clean up around the fuel pumps. As he walked outside the
             store, [] Robert Stewart, who had on a ski mask and was armed with
             an AK-style assault rifle, was in the process of entering the store.

         14. Mr. Priestas yelled at Mr. Stewart “what do you think you’re doing”
             and then yelled back in the store, “Gun!”

         15. Mr. Priestas then grabbed Mr. Stewart’s gun and attempted to
             wrestle control of the gun from Mr. Stewart.

         16. Mr. Priestas pushed Mr. Stewart out of the doorway toward the fuel
             pumps. At some point during the struggle, Mr. Priestas was shot by
             Mr. Stewart, causing serious injuries.

         17. Prior to the subject incident Kia and Chinai had installed
             surveillance cameras, an alarm system, Wall Pack Lighting, canopy
             Lights and flood lights to protect against criminal activity.

         18. The subject incident was partially captured on surveillance cameras,
             which led to the arrest and prosecution of the Stewart brothers.

The trial court heard the motion for summary judgment on January 8, 2019. By order of
April 12, 2019, the trial court granted the motion for summary judgment. Appellant
appeals.

                                          -3-
                                         II. Issues

       Appellant raises several issues for review. However, we perceive that there is one
dispositive issue: Whether the trial court erred in granting Appellees’ motion for
summary judgment.

                                 III. Standard of Review

        Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on
a motion for summary judgment de novo, without a presumption of correctness. Rye v.
Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick
Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013). In
doing so, we make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied. Rye, 477 S.W.3d at 250 (citing
Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013); Hughes v. New Life Dev. Corp.,
387 S.W.3d 453, 471 (Tenn. 2012)).

       However, “a moving party seeking summary judgment by attacking the
nonmoving party’s evidence must do more than make a conclusory assertion that
summary judgment is appropriate on this basis.” Rye, 477 S.W.3d at 264. Rule 56.03
requires the moving party to support its motion with “a separate concise statement of the
material facts as to which the moving party contends there is no genuine issue for trial.”
Tenn. R. Civ. P. 56.03. As noted above, in the instant case, Appellees provided a
statement of undisputed material facts, and Appellant filed no response to those facts.
So, even where the determinative issue is ordinarily a question of fact for the jury,
summary judgment is still appropriate if the evidence is uncontroverted (which it is in
this case) and the facts and inferences to be drawn therefrom lead only to one conclusion.
White v. Lawrence, 975 S.W.2d 525, 529-30 (Tenn. 1998) (“The Court must view the
evidence in the light most favorable to the nonmoving party, draw all reasonable
inferences in her favor, and discard all countervailing evidence. Only if the facts and
conclusions to be drawn from the facts permit a reasonable person to reach only one
conclusion should summary judgment be granted.”) (citations omitted).

                                       IV. Analysis

       In order to prevail on a negligence claim, a plaintiff must provide evidence to
establish the following elements: (1) a duty of care owed by defendant to plaintiff; (2) a
breach of that duty of care; (3) an injury or loss; (4) cause in fact; and (5) proximate or
legal cause. King v. Anderson Cty., 419 S.W.3d 232, 246 (Tenn. 2013). “The mere fact
that an injury has been sustained never raises a presumption of negligence.” Mullins v.
                                           -4-
Seaboard Coastline Ry. Co., 517 S.W.2d 198, 201 (Tenn. Ct. App. 1974) (citations
omitted).

        Duty, the first element of the claim, is “the legal obligation owed by defendant to
plaintiff to conform to a reasonable person standard of care in order to protect against
unreasonable risks of harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). The
existence or nonexistence of a duty owed by the defendant to the plaintiff is a question of
law for the court to decide. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993).
This case is a premises liability action, wherein Appellant contends that Kia, as the
owner/lessor of the property, and Chinai, as the operator/lessee, breached their respective
duties to Mr. Priestas. The trial court found that “[t]he parties agree and the Court finds
that Gary Priestas, deceased, worked as an independent contractor [as opposed to a
security guard] for Chinai.” The parties do not dispute this finding on appeal.

                                  A. Chinai’s Liability

        In cases involving an independent contractor, an owner/operator “generally owes
an independent contractor hired to perform work on the premises a duty to provide a
reasonably safe place in which to work.” Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn.
1996). The “duty includes the specific responsibility of either removing, or warning the
independent contractor of, any hidden or latent dangers on the property.” Id. Here, the
trial court applied Blair in holding that

       Gary Priestas was aware of and warned of the danger on the property of
       potential robberies and burglaries at the subject property. [] Because Chinai
       warned Gary Priestas of the danger to the property, it is not liable as a
       matter of law for injuries sustained by Plaintiff as a result of the April 18,
       2015 incident.

Under Blair¸ Chinai owed Mr. Priestas a duty to warn him of the fact that the property
had been robbed on several occasions. According to the undisputed material facts,
Chinai satisfied this duty, to-wit:

       4. In early 2015, Plaintiff Gary Priestas drove by Chinai store and noticed a
       number of police cars at the store.
       5. Mr. Priestas stopped his car and walked inside the store and spoke with
       one of the owners of Chinai, Manish Chinaiwala. Mr. Chinaiwala advised
       Mr. Priestas that the store had just been robbed.

                                            ***

       8. Mr. Chinaiwala informed Mr. Priestas that Chinai had been
       burglarized[/]robbed on several occasions.
                                        -5-
(Emphases added). Furthermore, according to the undisputed facts, when he accepted the
job, Mr. Priestas acknowledged the fact that the store had been robbed on several
occasions, and

       informed Mr. Chinaiwala that [Mr. Priestas] had a license for a concealed
       carry permit and that he would be carrying a concealed firearm as he
       performed his duties as Chinai, “especially since they had been held up on
       multiple occasions since [Mr. Chinaiwala] had acquired the business.”

From the foregoing undisputed facts, a reasonable person could only conclude that Chinai
met its duty to warn Mr. Priestas of the robberies that had taken place on the property. In
view of Chinai’s warning to Mr. Priestas, Appellant failed to satisfy the second element
of the prima facie case for negligence, i.e., breach of duty. Accordingly, the trial court
properly granted Chinai’s motion for summary judgment.

                                       B. Kia’s Liability

        As noted above, in September 2014, Chinai entered into an installment sales
contract with Kia to purchase the convenience store. So, at the time of the incident
giving rise to this case, i.e., April 18, 2015, Kia was the owner/landlord of the property.
“Generally, a landlord is not liable to a tenant or a third party for harm caused by a
dangerous condition on the leased premises.” Lethcoe v. Holden, 31 S.W.3d 254, 256
(Tenn. Ct. App. 2000) (citations omitted). However the general rule of a landlord’s non-
liability is subject to certain exceptions:

       The general rule of a landlord’s non-liability is subject to several
       exceptions. One exception applies if the following facts are shown: (1) the
       dangerous condition was in existence at the time the lease was executed; (2)
       the landlord knew or should have known of the dangerous condition; and
       (3) the tenant did not know of the condition and could not have learned
       about it through the exercise of reasonable care. Maxwell v. Davco Corp.
       of Tennessee, 776 S.W.2d 528, 531-32 (Tenn.Ct.App.1989). As a natural
       corollary of this exception, when a landlord and a tenant have co-
       extensive knowledge of the dangerous condition, the landlord is not
       liable to the tenant, or the tenant’s employees, for injuries sustained as
       a result of the dangerous condition. See id. at 532.

Lethcoe, 31 S.W.3d at 256 (emphasis added). In granting summary judgment to Kia, the
trial court found

       that Plaintiff cannot, as a matter of law, overcome the general rule of non-
       liability of a landlord for harm caused to a third party (Gary Priestas) on
       leased premises. [] Specifically, Plaintiff cannot establish the [Lethcoe]
                                             -6-
       exceptions apply because the undisputed facts show that Chinai, the tenant,
       did in fact know of the dangerous condition on the property. [] Therefore,
       the Court holds that Kia is entitled to summary judgment on Plaintiff’s
       premises liability/wrongful death claim.

There can be no doubt that Chinai and Kia had “co-extensive knowledge of the dangerous
condition” at the store. According to the statement of undisputed material facts, “[p]rior
to the subject incident Kia and Chinai had installed surveillance cameras, an alarm
system, Wall Pack Lighting, canopy Lights and flood lights to protect against criminal
activity [at the store].” (Emphasis added).

        Nonetheless, Appellant contends that Kia is liable because it retained control of
the property under the September 2014 installment sales contract. The general rule of
non-liability of a landlord is premised on the assumption that the landlord is not in
control of the property; a landlord may be held liable where the landlord in fact retains
control of the property. Lethcoe, 31 S.W.3d at 258 (citing Whitsett v. McCort, 1990 WL
123943, *4 (Tenn. Ct. App. Aug. 28, 1990)). Appellant asserts that the arrangement
between Kia and the Chinaiwalas was more akin to a principal/agent relationship than to
a landlord/tenant relationship. Specifically, Appellant argues that the Chinaiwalas took
possession under an installment contract, not a lease, and, under the agreement, Kia
retained ownership of the property. Furthermore, under the specific terms of the
installment sales contract, Kia required Chinai to: (1) keep the store open seven days a
week, 365 days a year; (2) sell lottery tickets; and (3) honor the remainder of a prior fuel
agreement. Based on these requirements, and the fact that Kia maintained ownership
through the terms of the installment sales contract, Appellant asserts that Kia was, in fact,
in control of the premises. Bowman v. Benouttas, 519 S.W.3d 596, 597 (Tenn. Ct. App.
2016) (“The most indicative factor in determining whether a principal-agent relationship
exists is the right of the principal to control the conduct of the work of the agent.”). In
support of her argument, Appellant relies on this Court’s opinion in Johnson v. Dupree
Oil Co., No. E2004-01433-COA-R3-CV, 2005 WL 1981799 (Tenn. Ct. App. Aug. 16,
2005). In Johnson, Mike Dupree and his wife owned a gas station, which they leased to
Dupree Oil Corporation. Id. at *1. Subsequent to this lease, Dupree Oil entered into a
Complete Management Fee Agreement (“CMFA”) with Jay Patel, under which
agreement Mr. Patel operated the gas station. Under the CMFA, all proceeds from the
operation of the gas station were paid to Dupree Oil. Id. Based on the CMFA, the trial
court held, and this Court affirmed, that Dupree Oil was the lessee and that Mr. Patel, as
the manager, was merely an agent and not a sublessee. Id. at *7. The Johnson Case is
readily distinguishable from the instant appeal in that Chinai is clearly not a manager or
agent for Kia. Although the agreement between Chinai and Kia specifies that the
property will be used as a gas station and convenience store, Chinai is an independent
operator doing business on its own behalf and not merely conducting business or
managing the property on behalf of Kia. Unlike Johnson, Chinai had no obligation to
remit any proceeds to Kia other than its lease payments. As such, Kia did not exert the
                                             -7-
type of control necessary to establish an exception to the general rule that a landlord is
not liable for harm caused to a third party by a dangerous condition on leased premises.3

                                             V. Conclusion

       For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of this appeal are assessed to the Appellant, Lisa Priestas, for all of which
execution may issue if necessary.




                                                          _________________________________
                                                          KENNY ARMSTRONG, JUDGE




        3
           In her brief, Appellant argues that the exception to non-liability for landlords, “where a
landowner conducts an inherently dangerous activity [on the premises,]” applies in this case. Lethcoe, 31
S.W.3d at 259 (quoting Int’l Harvester Co. v. Sartain, 222 S.W.2d 854 (Tenn. Ct. App. 1948)). Without
addressing whether the continued operation of a frequently robbed convenience store is, in fact, a
dangerous activity, from our review, Appellant failed to raise this argument in the trial court. As such, the
argument is waived on appeal. City of Memphis v. Shelby Cty., 469 S.W.3d 531, 560 (Tenn. Ct. App.
Feb. 20, 2015) (“It has long been the general rule that questions not raised in the trial court will not be
entertained on appeal[.]”).
                                                   -8-
