                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 March 10, 2014 Session

              DEBORAH R. SMITH v. JOHN P. STANLEY, ET AL.

                   Appeal from the Circuit Court for Sevier County
                    No. 2011-0066-III     Rex Henry Ogle, Judge


                 No. E2013-00886-COA-R3-CV-FILED-MAY 12, 2014


Deborah R. Smith (“Plaintiff”) sued John P. Stanley and Dinah Stanley (“Defendants”) with
regard to injuries Plaintiff suffered when she fell down stairs while visiting a cabin (“the
Cabin”) owned by Defendants. Defendants filed a motion for summary judgment. After a
hearing, the Circuit Court for Sevier County (“the Trial Court”) granted Defendants summary
judgment after finding and holding that Defendants owed no duty to Plaintiff. Plaintiff
appeals the grant of summary judgment. We find and hold, as did the Trial Court, that there
are no genuine disputed issues of material fact, and that Defendants have shown that Plaintiff
cannot establish an essential element of her claim, specifically duty. We, therefore, affirm
the grant of summary judgment.

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

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

Richard E. Collins, Knoxville, Tennessee, for the appellant, Deborah R. Smith.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the appellees, John P. Stanley and Dinah
Stanley.
                                          OPINION

                                         Background

                On February 11, 2010 Plaintiff visited the Cabin with Dan Stanley and Natalie
Smith. Plaintiff is Defendants’ niece, Dan Stanley is Defendants’ son, and Natalie Smith is
Plaintiff’s sister. The Defendants were not present at the Cabin. This was Plaintiff’s first
visit to the Cabin, and she did not know whether the Cabin contained stairs or not.

               It was nighttime and dark when the three arrived at the Cabin. Dan Stanley
exited the vehicle, took some groceries, and went to open the Cabin’s front door. The Cabin
had an electronic lock, and Mr. Stanley punched in the numbers and opened the door. Mr.
Stanley held the Cabin door open for Plaintiff to enter the Cabin, and Plaintiff entered the
Cabin. It is undisputed that Plaintiff was the first of the three to walk through the front door
of the Cabin during that visit.

                It is undisputed that there were no lights on before Plaintiff entered the Cabin,
which was described as “completely black.” There were a total of three different sets of light
switches to Plaintiff’s left on the path she took from the front door to the stairway where she
fell. Plaintiff did not turn on any lights between the time she entered the Cabin and the time
she fell. Plaintiff did not ask Dan Stanley or Natalie Smith to turn on any lights before she
entered the Cabin, nor did she ask where a light switch was located.

              It is disputed exactly how many steps Plaintiff took into the Cabin before she
fell down the stairs, but it is undisputed that Plaintiff took at least one step and probably
several steps into the Cabin. Plaintiff then stepped backward and fell down a staircase.
Plaintiff was knocked unconscious from the fall, and suffered multiple injuries.

               Plaintiff filed this lawsuit. Defendants filed a motion for summary judgment
asserting that they could negate an essential element of Plaintiff’s claim by showing that
Defendants did not owe a duty to Plaintiff. Specifically, Defendants asserted that they did
not owe a duty to Plaintiff to warn of the existence or location of the stairway and that it was
not reasonably foreseeable that Plaintiff would enter an unfamiliar area in the dark without
turning on any lights. After a hearing, the Trial Court granted Defendants summary
judgment after finding and holding that pursuant to our Supreme Court’s holding in Eaton
v. McClain, 891 S.W.2d 587 (Tenn. 1994), Defendants did not owe a duty to Plaintiff.
Plaintiff appeals the grant of summary judgment to this Court.




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                                          Discussion

             The dispositive issue in this case is whether the Trial Court erred in granting
Defendants summary judgment. Because this case was filed prior to July 1, 2011, we apply
the summary judgment standard as set out by our Supreme Court as follows:

              The scope of review of a grant of summary judgment is well
       established. Because our inquiry involves a question of law, no presumption
       of correctness attaches to the judgment, and our task is to review the record to
       determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
       Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
       1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

               A summary judgment may be granted only when there is no genuine
       issue of material fact and the moving party is entitled to judgment as a matter
       of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
       1993). The party seeking the summary judgment has the ultimate burden of
       persuasion “that there are no disputed, material facts creating a genuine issue
       for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
       If that motion is properly supported, the burden to establish a genuine issue of
       material fact shifts to the non-moving party. In order to shift the burden, the
       movant must either affirmatively negate an essential element of the
       nonmovant’s claim or demonstrate that the nonmoving party cannot establish
       an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
       270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
       to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
       Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
       apply the federal standard for summary judgment. The standard established
       in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
       sets out, in the words of one authority, “a reasonable, predictable summary
       judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
       v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
       175, 220 (2001).

               Courts must view the evidence and all reasonable inferences therefrom
       in the light most favorable to the non-moving party. Robinson v. Omer, 952
       S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
       only when the facts and the reasonable inferences from those facts would
       permit a reasonable person to reach only one conclusion. Staples v. CBL &
       Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

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       Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
       Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

               Plaintiff argues in her brief on appeal that the Trial Court erred in finding
Eaton v. McLain dispositive of her case. Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).
Plaintiff states in her brief: “Eaton [sic] did nothing to change the principle that
‘[f]orseeability is the test of negligence.’ . . . On the particular facts of Eaton, that test was
not met.” Plaintiff states that “[t]he issue for the Court is whether the risk was foreseeable.”
Plaintiff further states: “By not distinguishing the facts of Eaton from the record here, and
by treating Eaton as if it creates a presumption against any duty in cases involving stairs, the
trial court committed reversible error.”

             We disagree that what the Trial Court did was treat Eaton as if it created a
presumption. What the Trial Court did was find that there were no facts in this case which
would distinguish it from Eaton. What Plaintiff actually is arguing is that the Trial Court
should have distinguished this case from Eaton, and found that the risk in this case was
foreseeable.

               The Supreme Court set forth the following facts in Eaton:

               On March 23, 1991, Pauline Eaton travelled [sic] to the home of
       Tammy and James McLain - her daughter and son-in-law - to spend the night.
       Ms. Eaton arrived at the McLains’ about 6:00 p.m., and she and her daughter
       and son-in-law remained in the kitchen/den area of the home watching
       television until approximately 9:30 or 10:00. At that time, Ms. Eaton decided
       to go to bed. Because the McLains’ daughter Melanie was spending the night
       at a friend’s house, Ms. Eaton was advised by her daughter to sleep in
       Melanie’s bedroom. This bedroom is located along a long, narrow hallway
       that connects the kitchen/den area on one end of the house to the master
       bedroom on the other end. Directly across the hall from Melanie’s bedroom
       are two virtually identical doors that are adjacent to one another: the door to
       the right opens into a bathroom; and the door to the left opens onto a flight of
       stairs leading down to the basement. At the time of Ms. Eaton’s stay, the lock
       on the basement door was inoperable.




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               The McLains decided to go to bed about 11:00. While en route down
       the hallway to the master bedroom, Tammy McLain closed both the door to the
       bathroom and the door leading to the basement stairwell; she also switched off
       the hallway and bathroom lights.

              Ms. Eaton awoke about 5:00 the next morning needing to go to the
       bathroom. Although it was very dark when she awoke, Ms. Eaton did not turn
       on either the light in Melanie’s bedroom or the light in the hallway as she
       attempted to make her way to the bathroom. Instead, she proceeded across the
       hall and opened the basement door, believing it to be the bathroom door, and
       stepped inside. Ms. Eaton fell down the stairs and sustained injuries to her
       elbow and back.

Eaton, 891 S.W.2d at 588-89.

               In Eaton, the trial court entered a judgment approving a jury verdict which
apportioned 40% of the fault to the plaintiff, and 60% to the homeowners. This Court
reversed the judgment and dismissed the case. The Supreme Court ultimately affirmed the
decision of this Court after concluding that under the facts of that case, the homeowners did
not owe the plaintiff a duty. The Court stated:

              This Court has recently enunciated the proper analysis to be used in
       determining the scope of the duty of care in a negligence case. In Doe v.
       Linder Constr. Co., 845 S.W.2d 173 (Tenn. 1992), we stated:

              The term reasonable care must be given meaning in relation to
              the circumstances. [citation omitted]. Ordinary, or reasonable,
              care is to be estimated by the risk entailed through probable
              dangers attending the particular situation and is to be
              commensurate with the risk of injury. [citation omitted]. The
              risk involved is that which is foreseeable; a risk is foreseeable
              if a reasonable person could foresee the probability of its
              occurrence or if the person was on notice that the likelihood of
              danger to the party to whom is owed a duty is probable.
              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.
              ‘The plaintiff must show that the injury was a reasonably
              foreseeable probability, not just a remote possibility, and that

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       some action within the [defendant’s] power more probably than
       not would have prevented the injury.’ [citation omitted].

                                     ***

       The pertinent question is whether there was any showing from
       which it can be said that the defendants reasonably knew or
       should have known of the probability of an occurrence such as
       the one which caused the plaintiff's injuries.

Doe, 845 S.W.2d at 178.

       As indicated in Doe, the question of whether the McLains’ general duty
of care encompasses the duty to guard against the acts set forth in the
complaint involves an analysis of the foreseeability of the risk to which Ms.
Eaton was exposed. In other words, the issue is whether Ms. Eaton has made
“any showing from which it can be said that the defendants reasonably knew
or should have known of the probability of an occurrence such as the one
which caused [her] injuries.” Id. (emphasis added).

         We are of the opinion that no such showing has been made. In order for
the McLains to be charged with the duty to leave on the light in the hall and to
lock the basement door, they must have been able to reasonably foresee that
Ms. Eaton would get out of bed in total darkness, walk across the hall, and step
into the basement stairwell, all without turning on any lighting whatsoever.
While our holding would likely be different if no lighting had been provided
or if it had been inoperative, Ms. Eaton’s failure to turn on any lights, coupled
with her willingness to open the door and step into an unfamiliar area, is such
a radical departure from reasonable conduct under the circumstances that the
McLains could not have reasonably foreseen that conduct and its
consequences. To hold otherwise would necessarily cast the premises owner
in the role of an absolute insurer of the social guest’s safety, which is not
contemplated by our negligence law.

                                     ***

       Moreover, we hold that the McLains did not have a duty to warn Ms.
Eaton of the location of the stairs. Although Tennessee law provides that
premises owners owe invitees the duty to warn of latent or hidden dangers, this
duty does not arise if the danger is open and obvious. Jackson v. Tennessee

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       Valley Authority, 413 F. Supp. 1050, 1056 (M.D. Tenn. 1976); Odum v.
       Haynes, 494 S.W.2d 795, 800 (Tenn. App. 1972). Because stairs descending
       from a hallway to a basement are a common feature of many homes, see
       Alcorn v. Stepzinski, 185 Ill. App.3d 1, 132 Ill. Dec. 901, 904, 540 N.E.2d 823,
       826 (1989) and Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945, 950 (1970),
       they are not inherently dangerous.

Eaton, 891 S.W.2d at 594-95 (footnote and partial citations omitted).

             Plaintiff’s complaint alleges that Defendants were negligent for failing to
provide adequate lighting and for failing to warn of or correct a dangerous or hazardous
condition. As our Supreme Court instructed in Eaton, the issue of whether Defendants’:

       general duty of care encompasses the duty to guard against the acts set forth
       in the complaint involves an analysis of the foreseeability of the risk to which
       [Plaintiff] was exposed. In other words, the issue is whether [Plaintiff] has
       made “any showing from which it can be said that the defendants reasonably
       knew or should have known of the probability of an occurrence such as the one
       which caused [her] injuries.”

Id. at 594.

               In her brief on appeal, Plaintiff cites to several cases from other states. These
particular cases were cited in Eaton and, thus, were considered by our Supreme Court.
Because we have Tennessee case law that addresses the pertinent issue, and given that our
Supreme Court considered these specific cases when it ruled in Eaton, these cases from other
states are neither controlling nor persuasive.

               Defendants have shown that Plaintiff cannot establish an essential element of
her claim, specifically duty. As our Supreme Court pointed out in Eaton, stairs leading from
a hallway to a basement are a common feature in a home, are not inherently dangerous, and
do not give rise to a duty to warn without some further showing of latent or hidden danger.
Plaintiff has pointed to no facts which would tend to show that the stairs she fell down
constituted a latent or hidden danger. Thus, Defendants had no duty to warn Plaintiff of the
existence of the stairs.

               Turning to Plaintiff’s allegation of negligence due to failure to provide
adequate lighting, we note that in order to find that Defendants had a duty it must be shown
that it was reasonably foreseeable that Plaintiff would enter the “completely black” Cabin
with which she was unfamiliar, then continue to move inside without turning on lights or

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asking to have lights turned on, and then take a step backwards. The undisputed evidence
shows that Plaintiff made no attempt to turn on any lights when she entered the Cabin. The
undisputed evidence also shows that Plaintiff never asked to have lights turned on when she
entered the Cabin. The undisputed evidence shows that lights were available and could have
been turned on, but simply were not. Similar to the situation in Eaton, Plaintiff’s “failure to
turn on any lights, coupled with her willingness to . . . step into an unfamiliar area, is such
a radical departure from reasonable conduct under the circumstances that the [Defendants]
could not have reasonably foreseen that conduct and its consequences.” Id.

               In her brief on appeal in support of her argument that this case should be
distinguished from Eaton, Plaintiff discusses two other cases involving falls down stairs in
which this Court distinguished the facts from the facts of Eaton. The first of these two cases
is Daniels v. Davis, No. 01A01-9702-CV-00068, 1997 Tenn. App. LEXIS 624 (Tenn. Ct.
App. Sept. 17, 1997), no appl. perm. appeal filed. In Daniels the plaintiff, who was the
defendant’s mother, previously had lived in the defendant’s house where the accident
happened. Id. at *2. The house had “an improved basement with an outside exit that was
connected to the first floor of the house by a steep set of stairs,” which were used “frequently
to enter and leave the house.” Id. The defendant had installed a handrail on the upper
portion of the stairs when he moved into the house. Id. After living in the house for some
period of time, plaintiff moved out of the house. Id. After plaintiff moved, defendant
undertook some home improvement projects including rebuilding the stairs. Id. The
improvement project for the stairs included “changing the pitch of the stairs and adding four
additional steps, installing paneling and trim in the stairwell, replacing the carpet on the
stairs, and building a bookcase at the top of the stairs.” Id. at **2-3. The defendant removed
the handrail during the renovations. Id. at *3. During a visit to the defendant’s house, the
plaintiff “lost her footing as she descended the stairs,” and “reached instinctively for the
handrail that had been installed on the left of the stairs, [which] unbeknownst to her,” had
been removed. Id.

              This Court found the facts in Daniels to be distinguishable from those in Eaton
and stated:

       The stairs in this case were used frequently to enter and leave the house, even
       while they were being reconstructed. Accordingly, [defendant] should have
       foreseen that the persons using the stairs might use the handrail to steady
       themselves. Since [defendant] had a duty to maintain these stairs in a
       reasonably safe condition, he had a duty either to provide a suitable substitute
       for the handrail or to warn persons using the stairs that the handrail had been
       removed. . . . [Defendant] negligently failed to maintain the stairs in a
       reasonably safe condition while he was rebuilding them . . . .

                                              -8-
Id. at *8. In Daniels this Court also noted that the plaintiff’s case was “razor thin.” Id. at *9.

               In Daniels this Court found that the probability of an occurrence such as the
one which caused the plaintiff’s injuries was reasonably foreseeable. Id. at *8. In Daniels
it was shown that the stairs were not maintained in a reasonably safe condition while they
were being rebuilt. Id. Thus, the fact that the stairs were under construction and the fact that
the previously existing handrail had been removed were facts critical to the analysis. The
plaintiff in Daniels made a showing that the stairs were dangerous due to construction and
the removal of the previously existing handrail with which the plaintiff was familiar and,
thus, were not maintained in a reasonably safe condition. Id. The case now before us is
distinguishable from Daniels because there are no allegations in the case now before us that
the stairs were not maintained in a reasonably safe condition as was the case in Daniels.

              The second of the two cases relied upon by Plaintiff in which this Court dealt
with a fall down stairs is Salyer v. McCurry, No. E2008-01017-COA-R3-CV, 2009 Tenn
App. LEXIS 208 (Tenn. Ct. App. Jan. 29, 2009), no appl. perm. appeal filed. In Salyer, a
defendant real estate agent was showing a house to the plaintiff, a potential purchaser. Id.
at *2. The defendant real estate agent never had been in that particular house prior to the day
when she visited it with plaintiff. Id. at *6. While in the house, the plaintiff encountered a
closed door. Id. at 8. She asked the defendant real estate agent what was behind the door.
Id. The defendant real estate agent, who was at that time reviewing some paperwork,
responded that it was a bedroom and told plaintiff to go on in. Id. The plaintiff opened the
door, took one step into the pitch black, and fell down a staircase leading to a basement. Id.

               In Salyer we discussed Eaton and then stated:

               The present case, unlike Eaton, does not involve someone getting up
       before dawn, failing to turn on the lights, and then stepping into the darkness.
       If Plaintiff had simply opened the door and taken that first fateful step entirely
       on her own volition, then Eaton likely would require summary judgment
       against Plaintiff. The facts in the present case, however, are markedly
       different from Eaton. Here, Plaintiff took an affirmative step toward her own
       protection when she specifically asked [the real estate agent] what was behind
       the door. [The real estate agent] told Plaintiff that a bedroom was behind the
       door and to “go on in.” Relying on the information and direction provided to
       her by [the real estate agent], Plaintiff opened the door and stepped into the
       darkness. Had [the real estate agent] conveyed accurate information, then
       presumably the accident never would have happened. We believe that it was
       foreseeable from [the real estate agent’s] perspective that when she told

                                               -9-
       Plaintiff that there was a bedroom behind the door and to “go on in,” that
       Plaintiff would do exactly that. Plaintiff at this summary judgment stage has
       made a “showing from which it can be said that the [D]efendants reasonably
       knew or should have known of the probability of an occurrence such as the one
       that caused [her] injuries.” [Eaton, 891 S.W.2d] at 594. Thus, unlike Eaton,
       there are facts here which raise a dispute as to whether [the real estate agent]
       was negligent and, if so, how much.

Id. at **19-20 (footnote omitted).

                Importantly, Salyer provides no support for Plaintiff’s argument because Salyer
contains a critical factual distinction which differentiates it from the case now before us. In
Salyer the trial court granted the homeowner summary judgment and this grant of summary
judgment was not appealed. Id. at *5. The only issue before this Court in Salyer concerned
the grant of summary judgment to the defendant real estate agent and the real estate agent’s
employer, both of whom were named defendants in the suit due to the alleged negligence of
the real estate agent for telling the plaintiff that the room was a bedroom when it was not and
then telling the plaintiff to go on in. Id. at **5-8. The result this Court reached in Salyer was
that we could not conclude at the summary judgment stage that “the only reasonable
conclusion that could be drawn from the undisputed material facts is that Plaintiff’s
negligence was equal to or greater than [the defendant real estate agent’s].” Id. at **22-23.
Salyer did not address the question of duty owed by a premises owner and, as such, offers
no support for Plaintiff’s argument.

              Plaintiff also cites Norfleet v. Pulte Homes Tennessee Ltd. P’ship for the
proposition that “[t]here are circumstances in which stairs or steps may constitute dangerous
conditions that give rise to a duty to warn.” Norfleet v. Pulte Homes Tennessee Ltd. P’ship,
No. M2011-01362-COA-R3-CV, 2011 Tenn. App. LEXIS 609, at *16 (Tenn. Ct. App. Nov.
9, 2011), no appl. perm. appeal filed. The undisputed material facts in the case now before
us, however, show no circumstances which might cause the stairs in the Cabin to have
constituted a dangerous condition, which would have given rise to a duty to warn.

                We, as did the Trial Court, find and hold that this case cannot be distinguished
in any material way from Eaton, and, therefore, Eaton controls. Applying Eaton, Defendants
made a showing that the probability of an occurrence such as the one which caused Plaintiff’s
injuries was not reasonably foreseeable and, thus, Defendants negated an essential element
of Plaintiff’s claim, specifically duty. We find no error in the Trial Court’s grant of summary
judgment to Defendants. We, therefore, affirm the Trial Court’s March 7, 2013 order.




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                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Deborah R. Smith, and her surety.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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