IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
March 15, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
E1999-02319-COA-R3-CV
FRANCIS IONE LETHCOE, as ) C/A NO. 03A01-9904-CV-00155
surviving spouse and next of )
kin of Vernon Lethcoe, )
deceased, for the benefit of )
herself and JUSTIN CHARLES )
LETHCOE, CHRISTOPHER VERNON )
LETHCOE, CANDICE MISTY )
LETHCOE, JIMMY JOE BEAR )
LETHCOE, the surviving )
children of Vernon Lethcoe, )
)
Plaintiff-Appellant, )
) APPEAL AS OF RIGHT FROM THE
) MCMINN COUNTY CIRCUIT COURT
)
)
v. )
)
)
)
)
RICKY RAY HOLDEN and wife, )
SHEILA MARTIN HOLDEN, and PAM )
KNOX and husband, VAN KNOX, )
) HONORABLE JOHN B. HAGLER,
Defendants-Appellees. ) JUDGE
For Appellants For Appellees
ROBERT E. PRYOR GARY M. PRINCE
Pryor, Flynn, Priest & Harber O’Neil, Parker & Williamson
Knoxville, Tennessee Knoxville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
This is a wrongful death case. Francis Ione Lethcoe
1
sued the owners of the property on which her late husband, Vernon
Lethcoe (“the deceased”), was working when he was injured while
engaged in the business of his employer, Bain and Holden Tire
Company, Inc. (“the employer”). The trial court held that the
owners of the property were not legally responsible for the
injuries and resulting death of the deceased. It granted their
motion for summary judgment. The plaintiff appeals, claiming
that the general rule of a landlord’s non-liability does not
apply to the circumstances of this case.
The material facts of this case are not in dispute.
The defendants are the co-owners of the subject property. On
September 1, 1991, they leased the premises to the employer for
use as a tire buffing and recapping facility. In the lease, the
employer agreed that the premises were in a “good, clean, and
safe condition and repair” and agreed to maintain the property in
such a condition.
The defendant, Ricky Ray Holden, in his capacity as
president of the employer, is primarily responsible for the day-
to-day operations of the employer. He signed the lease as one of
the co-owners and also on behalf of the employer. Two of the
other defendants are members of the employer’s board of
directors. Mr. Holden is on the premises on a daily basis, while
the other three defendants are present on the property from time
to time.
Dust and rubber shavings, as by-products of the
employer’s business, are removed to the outside of the building
through the use of a specially-designed exhaust system built into
the structure of the building. This process often results in the
2
accumulation of rubber dust and shavings on the roof. Mr. Holden
arranges for the removal of the accumulated dust and rubber
shavings from the roof once a year, usually in the summer months.
He utilizes non-company labor and a non-company dump truck. On
January 6, 1995, the roof collapsed from the accumulated
material, and the deceased died as a result of injuries received
in the accident. Full worker’s compensation benefits were paid
to the deceased’s estate by the employer or its carrier.
On January 5, 1996, the plaintiff filed this wrongful
death action against the defendants as co-owners of the property.
The defendants filed a motion for summary judgment on September
2, 1997, relying on the rule that a landlord is generally not
liable to a tenant or third party for harm caused by a dangerous
condition on the leased premises. The trial court granted the
motion and later denied the plaintiff’s motion to alter or amend
the judgment. The plaintiff now appeals, arguing that, under the
facts of this case, certain exceptions to the general rule of a
landlord’s non-liability are applicable.
Since the facts in this case are not in dispute, our
only task is to decide whether those facts show that the
defendants are entitled to summary judgment. See Rule 56.04,
Tenn.R.Civ.P.; Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993).
Generally, a landlord is not liable to a tenant or a
third party for harm caused by a dangerous condition on the
leased premises. Hester v. Hubbuch, 170 S.W.2d 922, 926
(Tenn.Ct.App. 1942); Roberts v. Tennessee Wesleyan College, 450
S.W.2d 21, 24 (Tenn.Ct.App. 1969); Whitsett v. McCort, 1990 WL
123943, *4 (Tenn.Ct.App. W.S., filed August 28, 1990).
3
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.
With respect to this exception, the plaintiff argues
that “there is no question but that the dangerous condition pre-
existed the Lease and that the [owners] should have known of such
dangerous and unsafe condition.” Even assuming arguendo that a
dangerous condition pre-dated the lease and that the owners knew
about it, the plaintiff’s argument ignores the third requirement
for application of the exception, i.e., that the tenant did not
have actual or constructive notice of the dangerous condition.
Under the facts of the instant case, it is clear that the
knowledge of the employer was equal to, if not greater than, the
knowledge of the property owners. Thus, if the property owners
had actual or constructive knowledge of a dangerous condition on
the property, so too did the employer, i.e., the tenant, and this
exception to the general rule would not apply. Hence, we find
that the undisputed facts do not implicate the subject exception.
4
In a related argument, the plaintiff asserts that the
general rule does not apply and that the owners are liable
because the property was unsafe for the purpose for which it was
leased. She relies on the following facts to support this
argument: (1) the building was specially designed to serve as a
tire and recapping store; (2) the building included a special
exhaust system designed to remove rubber dust and shavings during
the recapping process; (3) the rubber dust and shavings often
created excessive weight on the roof of the building as they
accumulated there; (4) the premises were open to the public; and
(5) the owners of the property either knew or should have known
all of the foregoing facts. The plaintiff argues that, because
the building was unfit for its intended use -- a tire and
recapping store open to the public -- the owners owed a
heightened duty to the employees of the tenant. This duty was
breached, the plaintiff argues, when the roof collapsed, killing
the deceased.
This argument is based on the plaintiff’s reading of
Stenberg v. Willcox, 33 S.W. 917 (Tenn. 1896). She cites that
case in support of the following statement in her brief: “[i]t is
well-settled that when an owner of property leases the property
in a condition which would make it unsafe for the purpose for
which it is being leased because of a dangerous condition, the
owner/lessor will be liable.” We have reviewed Stenberg and find
the plaintiff’s interpretation of the case to be flawed.
It is true that Stenberg contains the following
language: “If the landlord lets the premises for a purpose which
he knows (or ought to know) it to be unfit for, knowing that
strangers will be invited there, it has been held that he is
5
liable to them.” Id. at 917. But this statement is only a
partial articulation of the rule applied by the Stenberg court.
The rule, in its entirety, as stated by the court in Stenberg, is
as follows:
if plaintiffs can recover at all in this
case, it must be upon the ground that the
landlord leased premises in a dangerous and
unsafe condition, when he knew, or might, by
the exercise of reasonable diligence and
care, have known, of such unsafe condition,
and upon the further ground that plaintiffs
did not know of such unsafe condition, and
could not have known of it by the exercise of
reasonable diligence and care....
Id. at 917. We do not believe that the rule announced in
Stenberg is materially different from the principle set forth in
the Maxwell case, 776 S.W.2d at 531-32, i.e., the landlord is
only liable if (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 dangerous condition and could not have discovered it
through the exercise of reasonable care. Therefore, we hold that
this exception does not apply to the instant case because, as
previously stated, the employer’s knowledge regarding the
dangerous condition was at least equal to that of the owners.
Another exception to the general rule is implicated
where the landlord has negligently repaired the premises,
regardless of whether the landlord was under a contractual duty
to make repairs or whether it simply undertook to make the
repairs gratuitously. Smith v. Tucker, 270 S.W. 66, 70 (Tenn.
1925). The plaintiff argues that this exception applies because
Mr. Holden periodically arranged for the removal of the tire
shavings from the roof using neither employees nor personal
6
property of the employer. The plaintiff contends that the
removal of tire shavings amounted to a “repair” and that it was
done negligently, apparently because it was not done early
enough. The plaintiff argues that she must be allowed to conduct
discovery to determine whether this negligent repair was done by
Mr. Holden in his capacity as president of the employer or in his
capacity as one of the co-owners.
We are of the opinion that this exception also does not
apply. The fact that Mr. Holden used neither company employees
nor company assets to remove the tire shavings from the roof is
irrelevant to the question of the capacity pursuant to which he
made the necessary arrangements to remove material from the roof.
Under the terms of the lease, the employer was responsible for
repairs. It is not significant that Mr. Holden employed outside
help to remove the material from the roof. This does not
indicate that the property owners, rather than the employer, were
performing the subject task. We do not think that it is a
reasonable inference, based on the facts before us, that Mr.
Holden arranged for the removal of tire shavings from the roof in
his capacity as one of the owners. Mr. Holden is the president
of the employer. It is reasonable to assume that he was acting
in this capacity. As previously noted, under the lease, repairs
were the responsibility of the employer.
The plaintiff had ample opportunity to conduct
discovery in this case. The complaint was filed on January 5,
1996. The motion to dismiss was not filed until September 2,
1997. The plaintiff then had until May 27, 1998, the date of the
hearing on the motion, to conduct discovery. Therefore, the
plaintiff had more than sufficient time to do the necessary
7
discovery.
The plaintiff also asserts that the general rule does
not apply and that the owners are liable because, so the argument
goes, they retained control of the property. In support of this
argument, she again points to the fact that Mr. Holden
periodically arranged for the removal of the accumulated material
from the roof using resources other than those of the employer.
Additionally, she notes that Mr. Holden is both an owner of the
property and the president of the employer, that two of the other
defendants are members of the employer’s board of directors, and
that, in addition to Mr. Holden being on the property almost
daily, the other three defendants were also on the property from
time to time.
It is true that, because 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. Cf. Whitsett v. McCort, 1990 WL 123943, *4
(Tenn.Ct.App. W.S., filed August 28, 1990).1 However, the owners
here did not retain control of the subject property. As stated
previously, the fact that non-company resources were utilized to
1
In Whitsett, a case between a plaintiff-subcontractor and defendant-
landowners, we said
the duty of the landowner concerning defects on the
property may be and is delegable when the possession
and control of the property is passed to another such
as a lessee. Since the rationale for the rule
imposing liability on the possessor of property is
based upon the superior knowledge and control on the
part of the possessor, it necessarily follows that
when the control of the premises is turned over to an
independent contractor for the performance of the
construction contract, the owner-contractee is not
liable for the acts of negligence of the contractor or
his employees and subcontractors.
Id. at *5 (citation omitted).
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remove the material from the roof does not indicate that Mr.
Holden undertook to control the condition on the roof in his
capacity as one of the owners. It is more logical and reasonable
to find that Mr. Holden was acting for the entity that was
responsible for repairs under the lease, and of which he was the
president, i.e., the employer.
The plaintiff also asserts that the general rule does
not apply because the owners had a continuing duty to ensure the
structural integrity of the roof. There is authority for the
proposition that, absent a contractual provision to the contrary,
a landlord has an obligation to make structural changes and
improvements “which are permanent and extensive and add
materially to the value of the property.” Taylor v. Gunn, 227
S.W.2d 52, 55 (Tenn. 1950). However, the plaintiff’s reliance on
this rule as justification for holding the defendants liable
under the circumstances of this case is misplaced. The
assumption underlying this argument is that the dangerous
condition here was the roof itself. We do not think this is a
fair characterization. Rather, the dangerous condition was the
accumulation of dust and tire shavings on the roof that, left
unattended to over time, caused the roof to collapse. Thus, the
employer, and not the owners, was responsible for the creation of
the dangerous condition. Therefore, this exception does not
apply to the facts of this case.
Finally, the plaintiff argues that the general rule
does not apply because of the inherently dangerous activity that
was being conducted on the property. In support of this
position, Lethcoe relies on Hutchison v. Teeter, 687 S.W.2d 286
(Tenn. 1985) and International Harvester Co. v. Sartain, 222
9
S.W.2d 854 (Tenn.Ct.App. 1948) for the proposition that, where a
landowner conducts an inherently dangerous activity, the
landowner has a non-delegable duty to “exercise caution adequate
to the peril involved, as for example, in giving notice of its
dangerous character.” Sartain, 222 S.W.2d at 867; see also
Hutchison, 687 S.W.2d at 288 (“the general principles governing
the additional responsibility of a landowner to persons lawfully
on the premises, such as employees of subcontractors, where the
landowner conducts an inherently dangerous activity, are
correctly set out in [Sartain]”). This is an accurate statement
of the law; but it is not applicable to the facts of the instant
case. Assuming arguendo, that a tire recapping facility is an
inherently dangerous activity -- a premise that is certainly not
shown by the facts of this case -- the owners leased the property
to the employer; they did not operate the facility. It was the
employer that occupied the premises and operated the facility.
For the foregoing reasons, we find that there is no
genuine issue of material fact and that the defendants are
entitled to a judgment as a matter of law. Accordingly, the
trial court’s grant of summary judgment to the defendants is
affirmed, and this case is remanded for collection of costs,
pursuant to applicable law. Costs on appeal are taxed to the
appellant, Lethcoe.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_________________________
Herschel P. Franks, J.
10
________________________
D. Michael Swiney, J.
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Francis Ione Lethcoe v. Ricky Ray Holden, et ux
Combined Opinion