Fulghum v. Notestine

• Docket Number: M2022-00420-COA-R3-CV
• Decision Date: 31 October 2023
• Parties: CORY FULGHUM v. STAN NOTESTINE
• Court: Tennessee Court of Appeals

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CORY FULGHUM v. STAN NOTESTINE

No. M2022-00420-COA-R3-CV

Court of Appeals of Tennessee, Nashville

October 31, 2023

Session April 4, 2023

Appeal from the Circuit Court for Rutherford County No. 75797 Darrell Scarlett, Judge

The Plaintiff brought a premises liability claim after falling off his own ladder while at the Defendant's residence. The Defendant moved for summary judgment, arguing he had no duty to warn and could avoid liability under principles of comparative fault. The Plaintiff countered that the Defendant was actually his employer and that the Defendant's decision not to provide workers' compensation insurance prevented the Defendant from being able to raise a comparative fault defense. Furthermore, the Plaintiff argued that the Defendant did have a duty to warn. The trial court granted the Defendant summary judgment finding no duty to warn and that even if a duty existed that Plaintiff's claim failed as a matter of law based upon comparative fault principles. The Plaintiff appealed to this Court. We affirm.

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

Michael Anthony Jones, Murfreesboro, Tennessee, for the appellant, Cory Fulghum.

Donald Andrew Saulters, Nashville, Tennessee, for the appellee, Stan Notestine.

JEFFREY USMAN, J., delivered the opinion of the court, in which ANDY D. BENNETT and THOMAS R. FRIERSON, II, JJ., joined.

OPINION

JEFFREY USMAN, JUDGE

An unfortunate accident resulted in a serious injury and a dispute between two best friends, Cory Fulghum and Stan Notestine. Mr. Fulghum is an accomplished carpenter by trade who possesses skills in hanging and trimming wooden structures.^[1] He is also a licensed general contractor in Tennessee for commercial, industrial, and residential projects.^[2] Mr. Notestine is a truck driver. Both parties agree that Mr. Notestine is not, nor has he ever been, a professional homebuilder. In connection with his significant experience with trucks, Mr. Notestine has, however, honed his mechanical skills.

These self-described "best of friends" have known each other for approximately seventeen years. Mr. Fulghum first befriended Mr. Notestine after a hailstorm when he offered to repair damaged portions of Mr. Notestine's home. Thereafter, the two men began regularly helping each other in connection with their respective skills. If Mr. Fulghum's car malfunctioned, for example, Mr. Notestine happily repaired it, and if Mr. Notestine's home ever needed repairs, Mr. Fulghum returned the favor.

The two friends never memorialized this informal system, nor did the men usually compensate each other. Mr. Notestine never accepted any money in exchange for repairing Mr. Fulghum's vehicle in spite of his offers. Sometimes Mr. Notestine "offer[ed]" Mr. Fulghum "a couple hundred dollars" if a particular task took several days to complete, such as when Mr. Fulghum tiled the master bathroom. But usually, the two men refused to accept each other's money. Mr. Fulghum did accept Mr. Notestine's money on one occasion about a week before the accident at issue here, when Mr. Notestine gave Mr. Fulghum one thousand dollars. The two men disagree as to why Mr. Notestine offered that money in the first place. Mr. Notestine described that money as "gratuitous[ly]" given, essentially as a gift to show his appreciation for Mr. Fulghum's help. By contrast, Mr. Fulghum characterized this money as a wage "for the work that he had previously done." The parties agreed that the friends' general approach was to informally "help each other out" as friends whenever one would benefit from the other's specialized skills.

In 2018, Mr. Notestine decided to substantially renovate his new Rutherford County residence. He obtained a building permit;^[3] he did not obtain any workers' compensation insurance. Mr. Notestine sought out a general contractor to help with the drywall, roof, siding, brick, and foundation. As usual, Mr. Fulghum offered to help Mr. Notestine with some general carpentry-related tasks. During his deposition, Mr. Fulghum acknowledged that he considered his carpentry assistance to be "work between friends." Mr. Notestine provided Mr. Fulghum with a key to the residence and some tools. Mr. Fulghum, however, confirmed that he provided most of the tools and equipment needed to complete the shiplap installation, though Mr. Notestine provided the shiplap boards. ^[4] Mr. Fulghum brought two of his own twenty-four-foot extension ladders with him to use at Mr. Notestine's home. Neither party has alleged that either ladder had any defects.

On May 8, 2018, Mr. Fulghum endeavored to install shiplap above Mr. Notestine's fireplace. Mr. Notestine was not at his residence when Mr. Fulghum arrived, so Mr. Fulghum let himself in using the key Mr. Notestine had previously given him. When he was asked how he knew what to do when Mr. Notestine was not present, Mr. Fulghum responded, "I'm a contractor." He added Mr. Notestine "didn't tell me how to do carpentry work, and I don't tell him how to do work on cars. So we had an understanding." Asked if "this was just work between friends," Mr. Fulghum stated "[y]eah, between the best of friends."

With regard to the shiplap installation, Mr. Notestine's fireplace is five feet wide. Under normal circumstances, Mr. Fulghum would have had to mount and dismount a ladder regularly to complete the shiplap installation. He sought to overcome this obstacle by setting up his two twenty-four-foot extension ladders side-by-side along the fireplace and about a foot apart from each other. This configuration, Mr. Fulghum thought, would allow him to "cross from one [ladder] to the other in the air," thereby maximizing his efficiency and accelerating the completion of the installation. Mr. Fulghum worried though that his ladders might harm the finish on Mr. Notestine's hardwood floors. In order to prevent any such damage, Mr. Fulghum placed individual pieces of cardboard underneath each ladder before beginning his task.

Both men agree that Mr. Notestine was not at home when Mr. Fulghum placed the ladders atop the cardboard. Mr. Notestine arrived at the home, however, before the accident. The parties disagree about what he observed. Mr. Fulghum alleges that Mr. Notestine "personally observed" that cardboard pieces lay underneath each ladder and "actively overs[aw] the work." By contrast, Mr. Notestine claims that he did not see the cardboard but rather "walked in, exchanged a brief greeting with [Mr. Fulghum], who was already on the ladder . . . [with] ear-buds in listening 'to the radio or something,'" and then attended to other projects outside. Mr. Fulghum concedes that Mr. Notestine neither suggested that the cardboard-under-ladders setup was safe nor directed Mr. Fulghum to place or maintain the cardboard underneath his ladders. Mr. Notestine said nothing about the cardboard that was under the ladders. There is no assertion that there was any defect or danger in connection with the flooring itself.

Unfortunately, the pieces of cardboard shifted under Mr. Fulghum's weight, causing the ladders to topple. Mr. Fulghum sustained serious injuries including a broken neck, a ruptured Achilles tendon, and significant scarring. The cost of his medical treatment for these injuries exceeded $350,000.

Mr. Fulghum filed a Complaint in Rutherford County Circuit Court, seeking compensation from Mr. Notestine.^[5] While Mr. Fulghum did not explicitly claim at the time of filing that he enjoyed an employer-employee relationship with Mr. Notestine, he did allege that he "was working for [Mr. Notestine]" and was subject to Mr. Notestine's "direct supervision and control." Endeavoring to understand Mr. Fulghum's allegations and his claim for relief, the trial court, without objection or clarification from Mr. Fulghum, characterized his claim as tantamount to a premises liability claim.

The deposition of Mr. Notestine primarily focused upon questions regarding his status vis-a-vis Mr. Fulghum. Mr. Fulghum's counsel asked Mr. Notestine if he ever considered the two men to have been engaged in an employer-employee relationship. Mr. Notestine responded that their relationship could probably have been classified that way when it began seventeen years ago because "he was a general contractor being paid to do roof repair, siding repair and that type of stuff." But Mr. Notestine indicated that relationship had been converted into "more of a 'you help me/I help you' relationship" long before the date of the accident. When asked whether he hired a general contractor for his home repairs, Mr. Notestine said, "I was pretty much acting as my own general contractor. I was subbing some items out and doing some items myself." Mr. Notestine also testified that he did not see the cardboard until "[a]fter the fact."

Mr. Notestine filed a Motion for Summary Judgment. Therein, he argued that he owed Mr. Fulghum no duty to warn about the ladders-on-cardboard setup because it was Mr. Fulghum who situated the ladders there in the first place. Mr. Notestine argued in the alternative that, even if he did owe Mr. Fulghum a duty to warn of an allegedly dangerous condition of Mr. Fulghum's own design, Mr. Fulghum was "more than 50% at fault" and so his claim would fail under the doctrine of comparative fault.

Mr Fulghum opposed the motion with a written response but also requested leave to amend his Complaint. The trial court granted that request. Thereafter Mr. Fulghum filed his First Amended Complaint and an accompanying Statement of Additional Facts. In his Statement of Additional Facts, Mr. Fulghum characterized the relationship between the two men as an employer-employee relationship. In addition to describing Mr. Notestine as his employer, Mr. Fulghum...