Greg Parker v. Holiday Hospitality Franchising, Incorporated

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 29, 2014 Session1

GREG PARKER ET AL. v. HOLIDAY HOSPITALITY FRANCHISING,
INCORPORATED ET AL.

Appeal by Permission from the Court of Appeals, Eastern Section
Circuit Court for Roane County
No. 11-CV-5 Russell E. Simmons, Judge

_________________________________

No. E2013-00727-SC-R11-CV - Filed September 12, 2014

_________________________________

We granted permission to appeal in this premises liability action to address two issues: (1)
whether the undisputed facts establish either the accepted work doctrine exception or the
nondelegable duty to the public exception to the general rule that property owners are not
vicariously liable for the negligence of independent contractors; and (2) whether disputes of
material fact remain concerning the property owner’s actual or constructive notice of the
defective condition created by the independent contractor’s negligence. We hold that the
undisputed facts do not establish either exception to the general rule of non-liability and that
the undisputed facts establish that the property owner had neither actual nor constructive
notice of the defective condition created by the independent contractor’s negligence.
Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part.
The judgment of the trial court granting the property owner summary judgment is reinstated.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed in Part and Reversed in Part; Judgment of the Trial Court Reinstated

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
and J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

1
Oral argument was presented on the campus of Lipscomb University in Nashville, Tennessee, as
part of the Girls State S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
W. Richard Baker, Knoxville, Tennessee, for the appellants, Greg and Diane Parker.

Brian H. Trammell, Andrew J. Lewis, Knoxville, Tennessee, for the appellee, Shashi Patel,
d/b/a S.P. Partnership d/b/a Holiday Inn Express.

James Bryan Moseley, Murfreesboro, Tennessee, for the amicus curiae, James Bryan
Moseley.

OPINION

I. Factual and Procedural Background

The following facts are undisputed. On May 12, 2010, Greg and Diane Parker, a
married couple, came to Tennessee from their home in California to visit Ms. Parker’s father.
Mr. Parker had been injured in a 2004 logging truck accident and was paralyzed from the
waist down, so the couple rented a handicap accessible room at the Holiday Inn Express
(“Hotel”) in Harriman, Tennessee. The defendant, Shashi Patel, owned and operated the
Hotel, doing business as S.P. Partnership, which, in turn, was doing business as Holiday Inn
Express (collectively referred to herein as “Mr. Patel” or “the defendant”).

The Parkers checked into Room 229 at approximately 4:00 or 5:00 p.m. on May 12th.
As was their custom when traveling, the Parkers inspected the bathroom and noticed a “gap
between the shower bench and the wall.” To Mr. Parker it appeared that one of the upper
brackets supporting the bench “was pulled away from the wall maybe an eighth of an inch
or a little more.” After shaking and pressing down on the bench to confirm that it was “loose
or not secured to the wall,” Mr. Parker returned to the front desk, reported the loose shower
bench, and requested a different room. Hotel staff informed Mr. Parker that no other
handicap accessible rooms were available but assured him that someone would repair the
shower bench.

After the Parkers left the Hotel for dinner a short time later, Craig Tyner, the Hotel
maintenance man, entered their room and inspected the shower bench. Mr. Tyner did not
notice any “obviously loose bolts or other problems with the shower bench.” However,
“[b]ecause a complaint had been made,” he “tightened the shower bolts that fastened the
shower bench to the wall.” After doing so, Mr. Tyner pressed down on the bench, and it “did
not bow or move in any way.”

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 When the Parkers later returned from dinner, Mr. Parker checked the shower bench
and saw “that it was bolted up flush to the wall like it should be.” Mr. Parker also “manually
pushed on” the shower bench, and it did not “shake or sound loose.” Ms. Parker also looked
at the shower bench and no longer saw the gap between the bench and the wall, which she
had noticed earlier. According to Ms. Parker, when she and her husband pressed on the
bench it “seemed stronger” and barely flexed.

On the morning of May 13, 2010, Mr. Parker went into the bathroom alone to shower.
Mr. Parker transferred himself from his wheelchair to the shower bench and had been
showering for approximately ten minutes when the bench suddenly collapsed, causing Mr.
Parker to fall to the floor of the shower. Mr. Parker’s buttocks hit the floor first, but the
backs of his legs and his right shoulder also hit the wall and floor as he fell.

Ms. Parker, who had been using a mirror just outside the bathroom door, heard the
crash and immediately entered the bathroom. Ms. Parker described the bathroom as “very
dangerous,” explaining that the floor was wet and covered in broken tiles and her husband
looked “very distressed” and grimaced with pain. Ms. Parker helped her husband move out
of the bathroom and onto the bed, dragging him from one area to the other on a towel. Ms.
Parker examined Mr. Parker’s body and discovered a red “welt” near his tailbone. She also
photographed Mr. Parker’s injuries and the collapsed shower seat.

After composing himself and dressing, Mr. Parker reported the incident to the person
on duty at the Hotel’s front desk. This person, in turn, informed Mr. Patel of the incident.
After making the report, the Parkers left the Hotel to visit Ms. Parker’s father. When they
returned, the Hotel staff moved the Parkers into another handicap accessible room, where
they remained for the duration of their visit to Tennessee.

Later that same day, Mr. Parker began experiencing pain in his entire back, extending
from between his shoulder blades to his tailbone. The next day, May 14, 2010, the Parkers
went to Methodist Medical Center in Oak Ridge, Tennessee, where x-rays were taken of Mr.
Parker’s mid-back. Mr. Parker was released, given a prescription for pain medication, and
advised to follow up with his own primary care physician. When he returned to California,
Mr. Parker saw his primary care physician, who ordered more x-rays that revealed
compression fractures to three vertebrae (T-7, T-8, and T-9) of Mr. Parker’s thoracic spine.
Mr. Parker later developed pressure sores on his buttocks and suffered more frequent urinary
tract infections and bladder pain than he had experienced before the fall he sustained when
the shower bench collapsed.

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 On May 11, 2011, the Parkers filed suit against Mr. Patel individually and against the
entities by which he was doing business: S.P. Partnership and Holiday Inn Express.2 The
Parkers sought compensatory damages for Mr. Parker’s past and future medical expenses,
loss of quality of life, physical pain, and mental suffering and for Ms. Parker’s “loss of
society, services, care and consortium.” The Parkers also sought punitive damages.

Mr. Patel denied liability and raised a comparative fault defense, claiming, as pertinent
to this appeal, that D & S Builders, LLC (“D & S Builders”) negligently constructed or
installed the shower bench. The Parkers responded by amending their complaint to allege
that D & S Builders had failed to install the shower bench according to the manufacturer’s
specifications, had concealed the defective installation with a sheetrock and tile wall, and had
failed to inform Mr. Patel of the defective installation. The trial court entered an order on
August 8, 2012, dismissing the Parkers’ claims against D & S Builders based on the
expiration of the applicable statute of repose.3

Mr. Patel then moved for summary judgment, arguing that: (1) the defective
installation of the shower bench was a latent defect caused by the negligence of an
independent contractor, D & S Builders; (2) that he had no actual or constructive notice of
the defect; and (3) that he had no duty to inspect the independent contractor’s work. For
purposes of the summary judgment motion, the parties agreed that the following additional
facts are undisputed: (1) the shower bench collapsed because D & S Builders failed to use
proper blocking to secure it to the interior wall; (2) at the time the bench collapsed the
defective installation was concealed by a sheetrock wall; (3) the defect could have been
discovered if the shower bench installation had been inspected during the Hotel’s
construction, before the sheetrock wall was installed; (4) Mr. Patel visited the Hotel once or
twice per week during its construction but did not personally inspect the shower bench at any
time prior to its collapse; (5) Mr. Patel would have noticed the absence of proper support on
the shower bench had he inspected it during installation; (6) Mr. Patel relied upon D & S
Builders to construct the Hotel in a reasonably safe manner free from defects; (7) the shower
bench was designed to support a person weighing up to 350 pounds if properly installed; (8)

2
The Parkers also initially named Holiday Hospitality Franchising, Incorporated, doing business as
Holiday Inn Express (collectively “Holiday Hospitality”), as a party to the lawsuit. By an order entered
January 28, 2013, the trial court granted Holiday Hospitality’s motion for summary judgment, and the
Parkers have not appealed that decision. This opinion uses the style that appeared on the complaint and on
the decision of the Court of Appeals.
3
The certificate of occupancy for the Hotel was issued on July 31, 2006. A four-year statute of
repose applies to negligent construction claims. Tenn. Code Ann. §§ 28-3-202, -203 (2000). Neither party
has appealed the trial court’s dismissal of the Parkers’ claims against D & S Builders as barred by the statute
of repose.

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Mr. Parker weighed 200 pounds when the shower bench collapsed; (9) Mr. Patel had never
received any complaints about the shower benches at the Hotel prior to this incident; (10) no
other handicap shower bench at the Hotel had collapsed prior to this incident; and (11) Mr.
Patel took possession of the Hotel from D & S Builders in July 2006.

On February 5, 2013, the trial court granted Mr. Patel’s motion for summary
judgment, reasoning that property owners are generally not liable for an independent
contractor’s negligence unless the property owner knew of and accepted defective materials
or negligent work. The trial court further concluded that property owners have no duty to
inspect the work independent contractors perform.

The Parkers appealed. The Court of Appeals agreed with the trial court that property
owners in Tennessee generally are not liable for injuries third parties sustain as a result of an
independent contractor’s negligence, unless the property owner, or his agent, either caused
the defective condition or had actual or constructive notice of it. The Court of Appeals
concluded that the undisputed facts of this case establish no exception to the general rule of
non-liability. Parker v. Holiday Hospitality Franchising, Inc., No. E2013-00727-COA-R3-
CV, 2013 WL 4647779, at *6 (Tenn. Ct. App. Aug. 27, 2013). Nonetheless, the intermediate
appellate court found the Parkers’ alternative theory—“namely that [Mr. Patel] had
constructive notice of the dangerous condition that existed for approximately four
years”—“more plausible.” Id. Concluding that disputes of material fact remain as to
whether Mr. Patel, through the exercise of reasonable care and diligence, should have
discovered the defective installation of the shower bench, the Court of Appeals reversed the
trial court’s grant of summary judgment and remanded the case to the trial court for further
proceedings. Id., at *7. The Parkers and Mr. Patel filed separate Tennessee Rule of
Appellate Procedure 11 applications for permission to appeal, which we granted.4

II. Standard of Review

Familiar standards govern this Court’s review of a decision to grant or deny a motion
for summary judgment. Summary judgment is appropriate only if “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. Summary judgment is
not appropriate when genuine disputes regarding material facts exist. Id. “A disputed fact
is material if it must be decided in order to resolve the substantive claim or defense at which
the motion is directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). We review de

4
For purposes of oral argument and briefing, we designated the Parkers as the appellants and Mr.
Patel as the appellee.

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novo with no presumption of correctness a lower court’s decision on a motion for summary
judgment. Thompson v. Memphis City Sch. Bd. of Educ., 395 S.W.3d 616, 622-23 (Tenn.
2012). De novo review obligates this Court to determine anew whether the requirements of
Tennessee Rule of Civil Procedure 56 have been satisfied. Hughes v. New Life Dev. Corp.,
387 S.W.3d 453, 471 (Tenn. 2012). In this determination, the moving party bears the burden
of establishing that summary judgment is appropriate as a matter of law because no genuine
issues of material fact are in dispute. Byrd, 847 S.W.2d at 215. Thus, we consider the
evidence in the light most favorable to the non-moving party and resolve all reasonable
inferences in the non-moving party’s favor. Mills v. CSX Transp., Inc., 300 S.W.3d 627, 632
(Tenn. 2009).

III. Analysis

A. Property Owner’s Vicarious Liability for Independent Contractor’s Negligence

The general rule in Tennessee is that a property owner is not vicariously liable for
injuries third parties sustain from the negligence of an independent contractor who performs
work for the property owner. McHarge v. M.M. Newcomer & Co., 100 S.W. 700, 702
(Tenn. 1907) (“[T]he general rule of law is . . . that the proprietor or employer is not liable
for the negligence of his contractor and the servants and assistants of the latter . . . .”); see
also Fed. Ins. Co. v. Winters, 354 S.W.3d 287, 295 (Tenn. 2011) (“[E]mployers are generally
not liable for the negligence of their independent contractors.”); Hutchison v. Teeter, 687
S.W.2d 286, 288 (Tenn. 1985) (discussing “exceptions to the general rule of non-liability for
the actions of an independent contractor”). The scope of this general rule has been narrowed
somewhat over the years by the recognition of various exceptions. Givens v. Mullikin, 75
S.W.3d 383, 394 (Tenn. 2002). The Parkers argue that two such exceptions—the accepted
work doctrine and the nondelegable duty to the public—apply here and subject Mr. Patel to
liability for D & S Builders’ negligence as a matter of law. We address each exception in
turn.

1. Accepted Work Doctrine Exception

Relying first upon the accepted work doctrine exception, which the Parkers assert that
this Court adopted in McHarge, the Parkers claim that Mr. Patel became vicariously liable
for D & S Builders’ negligence as a matter of law in July 2006, when he took possession of
the Hotel and accepted D & S Builders’ work. The Parkers also rely upon section 422 of the

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Restatement (Second) of Torts5 as support for their contention that the accepted work
doctrine applies in this case.

In McHarge, this Court recognized the general rule that a “proprietor . . . is not liable
for the negligence of his contractor” but also noted the “well-established exceptions and
limitations” to the general rule, which were enumerated as follows:

Where the act contracted to be done is wrongful or tortious in itself; where the
injury is the direct or necessary consequence of the work to be done; where the
thing to be done or the manner of its execution involves a duty to the public
incumbent upon the proprietor or employer; when the work contracted for is
intrinsically dangerous, and the performance of the contract will probably
result in injury to third persons or the public; and where the proprietor
interferes with the contractor in the performance of the work. Nor does it apply
when the work has been completed and accepted.

McHarge,100 S.W. at 702 (emphasis added) (citations omitted). Although the McHarge
Court enumerated the accepted work doctrine exception, the Court did not discuss the
exception in any further detail or base its decision on it. Id. at 703-04. The Court of Appeals
later defined the accepted work doctrine exception as follows:

When the work is finished by the contractor and accepted by the employer, the
liability of the former generally ceases, and the employer becomes answerable
for damages which may thereafter accrue from defective conditions of the
work. Before acceptance, the employer must see to it that the work, as to
strength and durability, and all other particulars necessary to the safety of the
property and persons of third parties, is subjected to proper tests and that it is
sufficient. By acceptance and subsequent use, the owner assumes to the world

5
Section 422 states:

A possessor of land who entrusts to an independent contractor construction, repair,
or other work on the land, or on a building or other structure upon it, is subject to the same
liability as though he had retained the work in his own hands to others on or outside of the
land for physical harm caused to them by the unsafe condition of the structure

(a) while the possessor has retained possession of the land during the
progress of the work, or
(b) after he has resumed possession of the land upon its completion.

Restatement (Second) of Torts § 422 (1965).

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 the responsibility of its sufficiency; and as to third persons, the liability of the
contractors has ceased and his own commenced.

Pulaski Hous. Auth. v. Smith, 282 S.W.2d 213, 217-18 (Tenn. Ct. App. 1955) [hereinafter
Smith] (emphasis added) (citations omitted), overruled by Johnson v. Oman Const. Co., 519
S.W.2d 782, 788 (Tenn. 1975).

Twenty years later, this Court abandoned the accepted work doctrine exception.
Johnson, 519 S.W.2d at 788. Johnson involved a wrongful death claim against two
municipalities and an independent contractor for the improper placement and illumination
of a highway guardrail. Id. at 784. Relying on the accepted work doctrine exception, the
independent contractor moved for summary judgment and supported its motion with an
affidavit that stated the work had been performed pursuant to the contract terms and had been
inspected and accepted by the Tennessee Highway Department and the Federal Highway
Administration upon completion. Id. at 787. Under the accepted work doctrine exception,
as defined in Smith, the independent contractor’s liability would have ceased and the owner
would have become responsible to third parties for the independent contractor’s negligence.
Smith, 282 S.W.2d at 218. The trial court granted the independent contractor summary
judgment, and the Court of Appeals affirmed. Johnson, 519 S.W.2d at 784, 786. This Court
granted review and reversed.

Citing Smith and two other Tennessee decisions, the Johnson Court first
acknowledged that, under prior Tennessee law, an independent contractor could not be held
liable for injuries occurring to a third party after the contractor had completed the work and
the work had been “accepted by the owner or the employer.” Id. at 788. The Court
emphasized, however, that a growing number of jurisdictions had adopted the modern view
that a contractor should be held to the standard of reasonable care for the protection of third
parties who may foreseeably be injured by the independent contractor’s negligence, even if
the injuries are sustained after the work has been accepted. Id. at 788. Consequently, the
Johnson Court held:

[I]f an independent contractor is guilty of negligence in performing his work
in such a way that it could reasonably be foreseen that the owner or third
parties would probably sustain personal injury or property damage as a result
of the negligent condition, then the independent contractor should not, as a
matter of law, be discharged merely because his work has been accepted and
delivered to the owner.

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Id. Although the Court repudiated the accepted work doctrine exception by which a property
owner became solely liable for independent contractor negligence, the Court acknowledged
that “acceptance of the work by a conscious and responsible owner, particularly where any
defects are obvious and patent, may bring into play the rules regarding independent
intervening causation.” Id. The Court also pointed out that “a contractor may point to the
inspection and acceptance of his completed work by a sophisticated and conscious owner as
being a circumstance bearing upon the reasonableness of the conduct of the contractor.” Id.
Applying those principles to the record before it, the Johnson Court reversed the grant of
summary judgment and remanded the case to the trial court. Id. at 789.

Contrary to the Parkers’ argument, the accepted work doctrine exception does not
apply in this case. This Court abandoned the exception in Johnson, and no Tennessee court
has, either before or since Johnson, adopted Section 422 of the Restatement (Second) of
Torts.6 Therefore, the accepted work doctrine exception does not automatically subject Mr.
Patel to vicarious liability for D & S Builders’ negligence.

2. Exception for Nondelegable Duty Owed to the Public

The Parkers next rely upon McHarge as support for their argument that Mr. Patel
owed a nondelegable duty to the public to install the shower bench using ordinary care and,
as a result, is vicariously liable as a matter of law for D & S Builders’ negligence. Again,
the Parkers’ reliance upon McHarge is misplaced.

In McHarge, the store owner defendant hired an independent contractor to repair an
awning that extended over Gay Street in Knoxville. 100 S.W. at 701. As the independent
contractor repaired the awning, an “awning roller” fell from the building to the ground,
striking and injuring a passing pedestrian. Id. at 700. The McHarge Court held that two
exceptions to the general rule of non-liability applied and allowed for imposition of liability
on the store owner defendant who had engaged the independent contractor. Id. at 702-04.

With respect to the first exception, a nondelegable duty owed to the public, the Court
explained that the City of Knoxville, which was not a party to the lawsuit, had a duty to the
public “to see that the awning was properly and safely constructed and kept in good repair.”
Id. at 703. The Court held that, by erecting the awning over the street, the store owner
defendant had “assumed all the obligations of the [C]ity [of Knoxville] to the public . . . to
exercise a high degree of care and diligence in the construction, maintenance, inspection, and
repair of the awning, so as to prevent it from obstructing the street, or endangering those

6
Nor has any Tennessee court adopted the portion of the Restatement (Third) of Torts, which
replaced section 422. See Restatement (Third) of Torts: Phys. & Emot. Harm § 62 (2012).

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using it[.]” Id. The store owner’s failure to take appropriate precautions “to protect the
public at all times from injury in any way growing out of its maintenance or repair, render[ed
the store owner] liable.” Id. at 703. As for the second exception, the McHarge Court
explained that the “work contracted for involved a thing intrinsically dangerous to the public,
from which injuries to those using the street were probable and might reasonably be
anticipated by the proprietor.” Id. at 704.

Unlike the store owner defendant in McHarge, Mr. Patel did not assume any duty a
governmental entity owed to the public. He simply engaged an independent contractor to
build a hotel. The undisputed facts fail to establish that Mr. Patel owed a nondelegable duty
to the public which would subject him to vicarious liability for the negligence of his
independent contractor.

B. Property Owner’s Premises Liability

Our determination that Mr. Patel is not vicariously liable for the negligence of his
independent contractor does not end the inquiry. We next must consider whether the Court
of Appeals correctly determined that disputes of material fact remain on the Parkers’
premises liability claim against Mr. Patel. “Business proprietors are not insurers of their
patrons’ safety.” Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004); McCormick
v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). Property owners are, however, required to
exercise due care under all the circumstances. Blair, 130 S.W.3d at 764. This general duty
of due care imposes upon a property owner the responsibility of either removing, or warning
against, any dangerous condition on the premises of which the property owner is actually
aware or should be aware through the exercise of reasonable diligence. Eaton v. McLain,
891 S.W.2d 587, 594 (Tenn. 1994). A property owner’s duty does not include, however, “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.” Rice v. Sabir, 979 S.W.2d 305, 308-09 (Tenn. 1998)
(citations and internal quotation marks omitted). A property owner “is not liable for injuries
occasioned by latent defects which are either concealed in defective workmanship or are
incidental to the ordinary wear and tear of houses and of which the owner had no notice.”
Allen v. Saturn Corp., No. M2002-01238-COA-R3-CV, 2003 WL 22055959, at *5 (Tenn.
Ct. App. Sept. 4, 2003) (internal quotation marks omitted). Thus, persons seeking to prevail
against a property owner on a premises liability claim must prove the elements of a
negligence claim,7 and in addition, must prove either that “the condition was caused or

7
The elements of a negligence claim are: “(1) a duty of care owed by the defendant to the plaintiff;
(2) conduct by the defendant 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.” Satterfield v. Breeding Insulation Co.,

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created by the owner, operator, or his agent,” or “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.” Blair, 130 S.W.3d at
764.

1. Creation of the Defective Condition

The Parkers argue that the undisputed facts of this case place it within the first prong
of the Blair analysis: “the condition was caused or created by the owner, operator, or his
agent.” Id. The Parkers acknowledge that D & S Builders created the defective condition
that caused the Parkers’ injuries and that D & S Builders was an independent contractor.
Nonetheless, the Parkers urge this Court to adopt a rule that deems independent contractors,
such as D & S Builders, agents of property owners as to any negligence that relates to the
work independent contractors perform for property owners. Applying this rule, the Parkers
contend that the undisputed facts establish that Mr. Patel, through his deemed agent D & S
Builders, created the defective condition that caused their injuries.

The authority cited by the Parkers does not support adoption of such a rule. These
decisions turned on the property owners’ constructive notice of the dangerous condition. See
Sanders v. State, 783 S.W.2d 948, 952 (Tenn. Ct. App. 1989) (noting that the State had at
least constructive notice of the exposed cement that caused injury because a State employee
had periodically replaced the wood chips in that area of the playground); Frazer v. Horton
Automatics, No. E2006-00102-COA-R9-CV, 2006 WL 3001013, at *7 (Tenn. Ct. App. Oct.
23, 2006) (holding that the property owner’s duty of reasonable care included maintaining
the automatic doors into the building and concluding that disputes of material fact remained
as to the property owner’s constructive notice that the automatic doors were closing too
quickly); Hamby v. State, No. W2002-00928-COA-R3-CV, 2002 WL 31749450, at *6
(Tenn. Ct. App. Dec. 4, 2002) (noting that the State had at least constructive notice of the
injury-causing condition that had existed on the property for twenty or twenty-five years,
since the buildings were originally constructed). We agree with the Court of Appeals’
conclusion that adopting the rule the Parkers seek would “obliterate” the general rule that a
property owner is not vicariously liable for the negligence of an independent contractor.
Parker, 2013 WL 4647779, at *6. Such a rule would also, at least in premises liability
actions, destroy the distinction the law makes between agents and independent contractors.
In effect, the Parkers seek a rule that would transform property owners into insurers of the
negligence of independent contractors. We decline to adopt such a rule. We conclude,
therefore, that the undisputed facts establish that D & S Builders, not Mr. Patel or his agent,
created the defective condition.

266 S.W.3d 347, 355 (Tenn. 2008).

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 2. Actual or Constructive Notice of the Defective Condition

Because the condition was created by an entity other than Mr. Patel, the outcome of
this appeal turns upon whether the undisputed facts establish that Mr. Patel had either actual
or constructive notice that the condition existed prior to the accident. See Blair, 130 S.W.3d
at 765. As to actual notice, the undisputed facts show that Mr. Patel did not inspect the
shower bench installation during the Hotel’s construction, when the defect would have been
visible. Additionally, he had never received a complaint about the shower bench in Room
229 before its collapse. The undisputed facts thus establish that Mr. Patel lacked actual
notice of the defective shower bench installation in Room 229 prior to its collapse.

With respect to Mr. Patel’s constructive notice, the Court of Appeals concluded that
disputes of material fact remain. “Constructive notice” is defined as “information or
knowledge of a fact imputed by law to a person (although he may not actually have it)
because he could have discovered the fact by proper diligence, and his situation was such as
to cast upon him the duty of inquiring into it.” Hawks v. City of Westmoreland, 960 S.W.2d
10, 15 (Tenn. 1997) (quoting Kirby v. Macon Cnty., 892 S.W.2d 403, 409 (Tenn. 1994)).
Constructive notice may be established by showing that a dangerous or defective condition
existed for such a length of time that a property owner, in the exercise of reasonable care,
should have become aware of it. Blair, 130 S.W.3d at 764; Simmons v. Sears, Roebuck &
Co., 713 S.W.2d 640, 641 (Tenn. 1986). Constructive notice may also be established by
showing that the dangerous condition resulted from “a pattern of conduct, a recurring
incident, or a general or continuing condition.” Blair, 130 S.W.3d at 765.

We conclude that the undisputed facts establish that Mr. Patel did not have
constructive notice of the defectively installed shower bench prior to the accident. Mr. Patel
had never received any complaints about the shower bench in Room 229 or about any of the
other shower benches at the Hotel. Nor had any other shower bench at the Hotel ever
previously collapsed. The defective installation was concealed behind a sheetrock wall and
was not visible to Mr. Patel or any Hotel staff after construction was completed.8
Additionally, visible inspections and physical pressure tests of the shower bench by the Hotel
maintenance man and the Parkers the evening before it collapsed failed to reveal any
problems. It is undisputed that the defective installation existed for approximately four years
prior to the accident, but the measures that would have been required to discover the defect,

8
In concluding that disputes of material fact remain, the Court of Appeals relied upon Paradiso v.
Kroger Co., 499 S.W.2d 78, 79 (Tenn. Ct. App. 1973). Although Paradiso is distinguishable on the basis that
it did not involve a concealed, latent condition, the result reached in Paradiso supports our conclusion. Here,
as in Paradiso, the undisputed facts establish that the property owner lacked actual or constructive notice of
the defect. Id. at 80 (“[S]ince 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.”).

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such as dismantling the exterior sheetrock wall, are far beyond the parameters of what the
duty of reasonable care requires of property owners.

The undisputed facts do, of course, establish that the defective installation would have
been visible during construction of the Hotel. However, the undisputed facts also establish
that Mr. Patel relied on his independent contractor to construct the Hotel in a reasonably safe
manner free from defects and did not inspect the shower installation during the Hotel’s
construction. Although the Parkers claim that Mr. Patel had a duty to inspect the independent
contractor’s work during construction of the Hotel and a duty to test the structural integrity
of the shower bench after it was installed, the trial court here properly held that Tennessee
law does not impose such duties on property owners. See Smith v. Castner-Knott Dry Goods
Co., No. 01A01-9512-CV-00554, at *3, 1997 WL 203605 (Tenn. Ct. App. Apr. 25, 1997)
[hereinafter “Castner-Knott”].

In Castner-Knott, a seven-year-old child was injured when a mirrored tile fell from
the wall of the department store where she was shopping. Id., at *1. Her parents brought a
premises liability action against the store owner. Id. The store owner answered the
complaint and asserted that the injury resulted from the negligence of the general contractor
that provided and installed the tile. Id. The parents amended their complaint and added the
general contractor as a party to the action; however, the trial court later dismissed the action
against the general contractor as barred by the statute of repose. Id. The store owner then
moved for summary judgment, arguing that the general contractor created the condition that
caused the injury and that the store owner lacked actual or constructive notice of the
condition. Id. The trial court granted the store owner summary judgment and dismissed the
complaint. Id.

The parents appealed, but the Court of Appeals affirmed. Id. The intermediate
appellate court first concluded that the undisputed facts established that the store owner had
neither actual nor constructive notice of the condition that caused injury, pointing out that
the store owner had received no reports of loose tiles in the area where the accident occurred
and that none of the mirrored tiles in that area had ever previously fallen. Id., at *2. The
Court of Appeals next rejected the parents’ separate argument that the store owner owed a
duty to its customers “to inspect and test the structural integrity of the mirrored tiles on a
regular basis.” Id. The Court of Appeals explained:

The risk of defective construction materials or of the negligent
construction of improvements to real property should not be placed on the
owner of the property unless the owner knew of and accepted the defective
materials or negligent work. It is undisputed in this case that Castner-Knott
did not design or install the mirrored tiles or the decorative metal channels

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 holding them in place and that Castner-Knott had no reason to know or even
suspect that the mirrored tiles and metal channels were defective or improperly
installed. As the owner of the premises, Castner-Knott was acting reasonably
by assuming that its contractor and material suppliers constructed
improvements to its store that would be reasonably safe for the purposes for
which they were intended.

After the construction of the improvements to its Rivergate store,
Castner-Knott had the duty to protect its customers from dangers that could be
discovered by reasonable inspection. It is undisputed that Castner-Knott
employees conducted general visual inspections of the store and that the
cleaning crew hired by Castner-Knott was instructed to inform the store of any
dangerous conditions that might be discovered during the cleaning process.
These activities were reasonable in light of the condition of the premises and
Castner-Knott’s experience operating department stores. The law will not
impose a duty on Castner-Knott to test the structural integrity of mirrored tiles
in its stores without some credible evidence of other failures of the same type
of mirrored tiles.

Id., at *3 (footnote omitted).

This same rationale applies to the Parkers’ argument in this appeal. Again, the
undisputed facts establish that Mr. Patel relied upon D & S Builders to construct the Hotel
in a reasonably safe manner and that he had neither actual nor constructive notice of the
defective shower bench installation. Tennessee law imposed no duty on Mr. Patel to inspect
the work of the independent contractor during construction or to test the structural integrity
of the shower bench after the Hotel was completed in the absence of any reports of problems
with this shower bench or others of the same type. See Id.

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 IV. Conclusion

We hold that the undisputed facts fail to establish either the accepted work doctrine
exception or the nondelegable duty to the public exception to the general rule that property
owners are not liable for the negligence of independent contractors. We also hold that the
undisputed facts establish that Mr. Patel had neither actual nor constructive notice of the
defective condition created by the independent contractor’s negligence. Accordingly, the
judgment of the Court of Appeals is affirmed in part and reversed in part. The decision of
the trial court granting summary judgment is reinstated. Costs of this appeal are taxed to
Greg and Diane Parker and their surety, for which execution may issue, if necessary.

__________________________________
CORNELIA A. CLARK, JUSTICE

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