Doe v. Linder Const. Co., Inc.

Citation845 S.W.2d 173
PartiesJane DOE, Plaintiff-Appellee, v. LINDER CONSTRUCTION COMPANY, INC., Linder Realty Company, Inc., Elwood Carpenter and Pattie Rollins, Defendants-Appellants, and Robert Linder, Linder Development Company and Idlewild Court Homeowners' Association, a.k.a. and d/b/a Idlewild Court Homeowners' Association, Defendants.
Decision Date21 December 1992
CourtSupreme Court of Tennessee

Daniel B. Eisenstein, Niles S. Nimmo, Nashville, for plaintiff-appellee.

Douglas Fisher, Thomas Pinckney, Nashville, for defendants-appellants.


REID, Chief Justice.

This negligence action results from the rape of the plaintiff-appellee by two men who are not parties to the suit. The trial court granted the defendants-appellants' motion for summary judgment, and the Court of Appeals reversed and remanded for a jury trial.

The complaint charges that the defendants negligently allowed a key to the plaintiff's residence to be stolen by other parties who, thereby, gained access to her residence and raped her. The plaintiff, who is the purchaser of a residence in a "planned unit development," sued Linder Construction Company, the seller-builder of her residence; Elwood Carpenter, the seller-builder's construction supervisor; Linder Realty Company, the realtor; and Pattie Rollins, the realtor's employee, who sold the residence to the plaintiff. The plaintiff also sued Idlewild Court Homeowners' Association, a corporation, alleging it had breached its duty to "enforce the covenants" of the Association with regard to plaintiff's safety. That defendant is not a party to this appeal.

The trial court found that the criminal assault was an independent intervening act and dismissed the complaint. The Court of Appeals held that the case presents issues of fact for the jury. This Court's review of the evidence shows that the trial court properly granted summary judgment in favor of the defendants.


Although the plaintiff-appellee insists that there is "significant disagreement as to the inferences to be drawn" from the facts, the essential facts are not disputed. Linder Construction Company contracted with Samuel Carpenter, the son of its construction supervisor, Elwood Carpenter, for the painting and wallpapering of houses as they were completed in the 35-lot development. At the time of the assault, Samuel Carpenter had been working for Linder Construction Company for approximately 14 months as an independent contractor and had been paid on the basis of work done. With the seller-builder's knowledge and permission, he frequently worked at night and on weekends. Carpenter apparently had problems with alcohol and had three convictions of DUI. He admitted to the occasional use of drugs. The record discloses no other evidence of bad character or criminal conduct.

Several months before the assault, while Samuel Carpenter was painting the interior of a house that subsequently became a "model home" and the office of the realty company, the locks and keys for the outside doors of the house were delivered by the supplier. The supplier stored them in the fireplace of the house. Carpenter without anyone's knowledge, took one of the several keys to the front door lock. His stated purpose for taking the key was to have access to the restroom and kitchen facilities while working at night and on weekends when the house was locked. During the extended time between Carpenter's taking of the key and the assault, Samuel Carpenter did not use the key to the model house for any improper purpose. Since it was used as a sales office by the realty company, the model home was frequented during working hours by other workers on the project, realtors and prospective purchasers.

When a house in the development was sold, Rollins would offer to keep a key on behalf of the seller so that "punch list" items, agreed upon by the seller and the buyer at the time of sale, could be completed while the purchaser was at work or otherwise away from the residence. These "pass keys" were kept in the closet of Rollins's office in the model home, and the key to each house was tagged with a number corresponding to the lot number on which the house was located. The procedure whereby the keys were used was clearly established and followed by Elwood Carpenter, who, inaccurately described in the dissent as "the on-site superintendent," Dissent (Daughtrey, J.) at 187, a landlord-tenant term, was the construction supervisor of the project and, as such, was responsible for the "punch list" items agreed to at closing. Carpenter would take the keys needed that day from the office closet, put them onto his own key ring, and at the end of each day, return the keys to the box in the closet. The model home was locked at night and at all other times except when Pattie Rollins or another realtor was present. Although some buyers decided against allowing Rollins to keep a key to their house, that arrangement was made by the plaintiff and Rollins when her sale was closed. The arrangement, which is described in the plaintiff's brief as "a normal business practice," was for the mutual convenience of the defendants and the plaintiff.

About a week before the plaintiff was assaulted, Clinton Osborne came to Nashville from Ohio to visit his cousin Samuel Carpenter. Osborne worked some with Samuel Carpenter painting, but he mostly just "goofed off." Osborne, described in the dissent as a "dangerous person," Dissent at 189, which in hindsight is accurate, had served a penitentiary sentence in Ohio for assault and, unknown to Samuel Carpenter or the defendants, was a fugitive when he came to Tennessee. The extent of the defendants' knowledge about Osborne was that Elwood Carpenter knew he had served time in prison in Ohio.

On the night of the assault, Samuel Carpenter used his key to enter the model home. After locating the box of pass keys, he identified the key tagged with the lot number of the plaintiff's house and took it. He and Osborne then entered the plaintiff's house with the pass key and raped her. Both men were convicted of the crime.

The trial court found that the criminal assault was not reasonably foreseeable under the circumstances and granted the defendants' motion for summary judgment. The Court of Appeals found that these facts were sufficient to present jury questions with regard to the handling and storage of the key to the model home, the control of the "pass keys," and the "employment" of Samuel Carpenter, a person "of known irresponsible character."


The plaintiff asserts this is a case of first impression in Tennessee. Apparently there is no reported decision from this or any other jurisdiction in which a plaintiff has undertaken to impose liability under circumstances similar to those presented in this case. Both the plaintiff and the dissent characterize the case as "unique." Dissent at 194.

In attempting to establish the duty of care owed the plaintiff by the defendants, the plaintiff, and the dissent, acknowledge that the decisions of Tennessee courts provide no precedent and rely upon "recent developments in this area of the law." The dissent advocates that Tennessee join the " 'revolution' in this area of the law," which would require "a sudden judicial rejection of well established precedent." Dissent at 192. The plaintiff undertakes to find support for her position in the law regarding the duty of shopping center operators to third parties for the criminal acts of strangers, Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975); the duty of landlords to tenants for the criminal acts of strangers, Tedder v. Raskin, 728 S.W.2d 343 (Tenn.App.1987); the duty of innkeepers (hotel or motel operators) to registered guests for the criminal acts of strangers, Zang v. Leonard, 643 S.W.2d 657 (Tenn.App.1982); and the duty of "condominium owners' associations" to members for the criminal acts of strangers, Francis T. v. Village Green Owners Ass'n., 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573 (1986). The Tennessee cases relied upon by the plaintiff set forth settled legal principles relating to the particular relationship presented in each case; however, those cases involve situations and relationships greatly different from the case at hand and constitute no authority for the legal principles advocated by the plaintiff. A significant difference between those cases and the present case is that in the present case, the criminal tortfeasor is not a "stranger" to the defendants but a person who was authorized by contract to be on the premises, and who gained access to the plaintiff's residence by criminal or unauthorized acts committed against the defendant-seller as well as the plaintiff. Another significant difference is that the defendants were not the plaintiff's landlord, lessor, or host, and consequently, did not owe the plaintiff the duty owed tenants, lessees, or guests. The defendants were not owners or occupiers of the plaintiff's premises, they had only the right to enter the premises at the plaintiff's convenience and for the purpose of completing the performance of the contractual obligation incident to the sale of the property. Aspects of those relationships which are not present between the defendants and the plaintiff include a contractual obligation regarding security or maintenance and a control over the plaintiff's premises. The arguments advanced by the plaintiff and the cases relied upon, might be applicable to the plaintiff's suit against the defendant Idlewild Homeowners Association, Inc., which, though a party to the suit, is not a party to this appeal. According to the allegations of the complaint, that defendant, incident to the covenants of the association, owed a duty to provide security to the association members. The liability of the association is not an issue before the Court.

The duty owed the plaintiff by the defendants was, as in all cases, that of reasonable care under all of the circumstances. The duty...

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