Concklin v. Holland

• Decision Date: 14 October 2003
• Docket Number: No. W2003-00334-COA-R3-CV,W2003-00334-COA-R3-CV
• Citation: 138 S.W.3d 215
• Parties: Jimmy E. CONCKLIN, et al. v. William L. HOLLAND, et al.
• Court: Tennessee Court of Appeals

138 S.W.3d 215

Jimmy E. CONCKLIN, et al. v. William L. HOLLAND, et al.

No. W2003-00334-COA-R3-CV

Court of Appeals of Tennessee, at Jackson.

October 14, 2003 Session.

December 29, 2003.

Application for Permission to Appeal Denied by Supreme Court June 1, 2004.

Appeal from the Circuit Court Shelby County, George H. Brown, Jr., J Michael G. Derrick and Hope Kizer-O'Briant, Memphis, Tennessee, for the appellants, Jimmy E. Concklin and wife, Connie Concklin.

Jerry O. Potter and John C. Murrow, Memphis, Tennessee, for the Appellee, Lewis E. Holland.

OPINION

DAVID R. FARMER, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

This case involves an appeal from the trial court's grant of defendant's, Lewis E. Holland (Lewis), motion for failure to state a claim upon which relief can be granted. The complaint against Lewis stated causes of action based on theories of premises liability, partnership liability, negligent entrustment, ultra hazardous activity, and negligence per se based on violations of 21 U.S.C. § 856 (2003). We affirm.

As alleged in the complaint as amended, twenty-year old Amanda Concklin (Amanda) visited a house located at 260 South Fenwick, Memphis, Tennessee (Fenwick property). This property was jointly owned by Defendants, Lewis and William L. Holland (Will), and solely occupied by Will.¹ While at the Fenwick property, Will furnished alcohol and illicit drugs to Amanda. After consuming the drugs and alcohol, Amanda became sick, experienced convulsions, and ultimately died. Will placed Amanda's body in a vehicle parked in his garage where it was ultimately found a month and a half later by the Memphis Police Department. The amended complaint contains no allegations that Lewis knew of these tragic events until Will's arrest.

As it is material to the claims raised against Lewis, the amended complaint states:

4. Defendant, Lewis E. Holland, at the time of the death of Amanda Concklin and for a period of time before was a resident and citizen of Memphis, Shelby County, Tennessee at the address where he presently resides and can be served with process at 4099 Gwynne Road in Memphis.

5. Defendants, Will Holland and Lewis Holland, together were joint owners of the house and property located at the [Fenwick property].

6. Defendants, Will Holland and Lewis Holland, each owned an undivided one-half (1/2) interest in the Fenwick property and were jointly and severally responsible for [ ] its maintenance, condition, upkeep and repair.

7. As an owner of the Fenwick property, Lewis Holland had a right to manage, regulate or control the property and its use.

8. Lewis Holland, during all times relevant, including at the time of Amanda's death and for a period of time before, was himself making the mortgage payments on the Fenwick property.

....

11. Lewis Holland knew or should have known of the use and sale of illicit drugs and alcohol [by Will Holland] at the Fenwick property....

....

23. Will Holland's involvement with illicit drugs was a well known fact to Lewis Holland.

24. The use and sale of illicit drugs and alcohol occurred frequently at the Fenwick House after it was acquired by Lewis and Will Holland.

25. Because of the use and distribution of drugs and other activities going on at the Fenwick House, of which Lewis Holland had knowledge or should have had knowledge, there existed a serious and foreseeable threat that bodily injury or death could result to those who might visit there.

26. Despite Lewis Holland's knowledge of Will Holland's conduct related to drugs, Lewis Holland continued to provide for the ways, means, and maintenance of the premises at the Fenwick House, which in the hands of Will Holland was a dangerous instrumentality.

27. Following their purchase of the Fenwick property[,] Lewis Holland caused additional funds to be invested in the property for the purpose of improving the property and increasing its value.

After plaintiffs, Jimmy Concklin and Connie Concklin (Mr. and Mrs. Concklin), filed their original complaint against Lewis and Will, Lewis filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted against himself only. Mr. and Mrs. Concklin subsequently filed an amended complaint seeking compensatory and punitive damages from Will and Lewis. The amended complaint sought to impose liability on Lewis based on theories of negligence per se and strict liability resulting from violations of 21 U.S.C. § 856 (2003), and negligence based on premises liability, negligent entrustment, partnership liability, and ultra hazardous activity. The trial court granted the 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted against Lewis.

Issues Presented

Mr. and Mrs. Conklin appeal and raise the following issues, as we restate them, for review by this Court:

1. Whether the trial court erred in granting the motion of Lewis Holland for dismissal for failure to state a claim upon which relief may be granted?

2. Whether the trial court erred in failing to recognize that a cause of action was established applying the facts, as contained in the amended complaint, under the theories of premises liability, partnership liability, negligent entrustment liability, ultra hazardous activity liability, and violations of 21 U.S.C. § 856 (2003).

Standard of Review

The standard of review for a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted is well settled as stated by the Tennessee Supreme Court in Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934 (Tenn.1994):

A Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted tests only the sufficiency of the complaint, not the strength of a plaintiff's proof as does, for example, a motion for a directed verdict. Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn.Ct.App.1979).... The basis for the motion is that the allegations contained in the complaint, considered alone and taken as true, are insufficient to state a claim as a matter of law. Cornpropst v. Sloan, 528 S.W.2d 188, 190 (Tenn.1975); Shelby County v. King, 620 S.W.2d 493, 494 (Tenn.1981); Shipley v. Knoxville Journal Corp., 670 S.W.2d 222, 223 (Tenn.Ct.App.1984). The motion admits the truth of all relevant and material averments contained in the complaint but asserts that such facts do not constitute a cause of action. League Cent. Credit Union v. Mottern, 660 S.W.2d 787, 789 (Tenn.Ct.App.1983). In scrutinizing the complaint in the face of a Rule 12.02(6) motion to dismiss, courts should construe the complaint liberally in favor of the plaintiff, taking all allegations of facts therein as true. Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848-49 (Tenn.1978); Holloway v. Putnam County, 534 S.W.2d 292, 296 (Tenn.1976).

Cook, 878 S.W.2d at 938.

Premises Liability

Mr. and Mrs. Concklin assert that Lewis, as a co-owner of the Fenwick property, is liable for Amanda's injuries resulting from the dangerous condition of the Fenwick property. They contend that the presence of illicit drugs and alcohol renders the Fenwick property dangerous. A cause of action for premises liability is analyzed under common law principles of negligence. See Ruth v. Ruth, 213 Tenn. 82, 372 S.W.2d 285, 287 (1963). To establish a prima facie claim of negligence, the plaintiff must prove "1. [a] duty of care owed by the defendant to the plaintiff[,] 2.[a] failure on the part of the defendant to perform that duty[, and] 3.[a]n injury to the plaintiff resulting proximately from the defendant's breach of that duty of care." Id. (citing Mullen v. Russworm, 169 Tenn. 650, 90 S.W.2d 530 (1935); De Glopper v. Nashville Ry. & Light Co., 123 Tenn. 633, 134 S.W. 609 (1910); Nichols v. Smith, 21 Tenn.App. 478, 111 S.W.2d 911 (Tenn.Ct.App.1937)).

Mr. and Mrs. Concklin must first prove the existence of a duty that Lewis owes to a visitor to the Fenwick property. In regard to an owner's premises liability, Tennessee courts have stated that "[t]he law places the duty upon the person in control of [the] premises to exercise reasonable and ordinary care under the circumstances not to cause injury to an invitee." Id. (emphasis added); see also Johnson v. EMPE, Inc., 837 S.W.2d 62, 65 (Tenn.Ct.App.1992). In Johnson v. EMPE, Inc., 837 S.W.2d 62 (Tenn.Ct.App.1992), an employee of a construction company was killed when an excavation, in which he was working, fell on him. Johnson, 837 S.W.2d at 63. The construction company was working on a sewer project for the City of Bristol, Tennessee. Id. The deceased employee's widow brought a premises liability claim against the city alleging that the city controlled the construction site, was aware of the dangerous condition, and took no action to repair or warn of the dangerous condition. Id. The city filed a motion to dismiss which was granted against the widow. Id. On appeal, the court of appeals held that the contractor, and not the city, owed a duty towards the employee.² Id. The court reasoned that "under the circumstances of this case, where the contractor was undisputedly in control of the premises, the duty was upon the contractor and not the City of Bristol." Id.

While the facts of the Johnson case can be distinguished from those in the present case, namely the co-owner status of the parties in the case at bar versus the landowner-contractor relationship present in Johnson, another jurisdiction has employed the same control analysis in holding that only the co-owner in control of the premises owes a duty to third persons. 62 Am.Jur.2d Premises Liability § 24 (1990) (citing Merritt v. Nickelson, 407 Mich. 544, 287 N.W.2d 178 (1980)). In Merritt v. Nickelson, 407 Mich. 544, 287 N.W.2d 178 (1980), a mother and son owned a twenty-five acre tract of land as tenants in common. Merritt, 287 N.W.2d at 179. On the portion of land occupied by the...