Fuller v. Banks

• Decision Date: 03 February 2016
• Docket Number: No. W2015-01001-COA-R3-CV,W2015-01001-COA-R3-CV
• Parties: MAMIE D. FULLER v. JOAN C. BANKS, ET AL.
• Court: Tennessee Court of Appeals

MAMIE D. FULLER
v.
JOAN C. BANKS, ET AL.

No. W2015-01001-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

January 20, 2016 Session
February 3, 2016

Appeal from the Circuit Court for Haywood County
No. 4057
Clayburn Peeples, Judge

This is a premises liability case. Appellant had rented property from Appellees for approximately one year when Appellant was injured as a result of a fall when the railing along the stairs of the premises allegedly collapsed. The trial court granted summary judgment in favor of Appellees based upon its conclusion that Appellees had negated the essential element of Appellant's claim that, in order for Appellees to have been negligent in the accident, any defect in the stairs or supporting structure must have existed at the time of the execution of the lease. Discerning no error, we affirm and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed and Remanded

KENNY ARMSTRONG, delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS and BRANDON O. GIBSON, JJ., joined.

Jennifer L. Miller, Memphis, Tennessee, for the appellant, Mamie D. Fuller.

Don G. Owens, III, Memphis, Tennessee, for the appellees, Henry T. Morris, Sr. and Joan C. Banks.

OPINION

I. Background

The material facts of this case are not in dispute. At all relevant times, Appellant

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Mamie Fuller rented one side of a duplex located at 681 Tamm Street in Brownsville, Tennessee (the "Premises"). Joan C. Banks and Henry T. Morris, Sr. (together, "Appellees") each own a one-half undivided interest in the Premises. Larry S. Banks, Joan Banks' husband and a practicing attorney, is responsible for managing and maintaining the Premises. Mr. Banks often employs contractors and handymen to work on the various properties he manages. On June 16, 2011, Ms. Fuller, who was approximately eighty-four years old at the time, suffered a fall as she was ascending the four steps to her front porch. Ms. Fuller was relying on the guardrail to pull herself up the stairs when the post that held the guardrail allegedly gave way causing her to fall backwards. In falling from the top step to the ground, Ms. Fuller sustained a broken right arm. Ms. Fuller claimed that, after she fell, she noticed loose bricks lying on the ground around her. These bricks were allegedly part of the foundation on which the post that held the stairs' railing was sitting. Following Ms. Fuller's fall, Mr. Banks called Ric Shoemaker, a licensed contractor and the owner of RES Construction, LLC, to repair the post and railing. According to his deposition, Mr. Shoemaker did not find any loose bricks and stated that he made no repairs to the brick foundation. Rather, on inspecting the stairs, railing, and post, it was Mr. Shoemaker's opinion that the post had most likely been hit by a vehicle. Mr. Shoemaker noted that the post "showed no signs of rotting," but that it was "pushed out towards the street . . . and you could see where it looked like a bumper had hit the post . . . ." Mr. Shoemaker could not give any information or opinion concerning when the post may have been hit and dislodged.

On June 4, 2012, Ms. Fuller filed the instant lawsuit against the Appellees. In her complaint, Ms. Fuller alleged that Appellees, their employees and/or agents, "were negligent in failing to adequately maintain the stability of the guardrail." Alternately, Ms. Fuller alleged that Appellees were negligent in their "failure to warn [her] of the possibility of injury" and/or in their "failure to conduct a reasonable inspection of the guardrail" so as to "maintain a safe environment . . . ." Ms. Fuller also asserted that Appellees "had or should have had actual and/or constructive notice of the dangerous and defective condition that caused [Appellant's] injuries." Ms. Fuller sought reimbursement of approximately $15,000 in medical expenses and compensatory damages in the amount of $150,000. On June 25, 2012, Appellees filed their answer, in which they denied any liability for Ms. Fuller's injuries. Appellees filed an amended answer on or about April 23, 2014, wherein they again denied any liability but specifically averred that

assuming there was a dangerous condition [Appellees] further allege that [Appellant], being a tenant of the premises, was in a position of superior knowledge and control of the premises and was in the best position to be able to observe and detect any dangerous condition that had come to exist and said [Appellant] had a duty [to] exercise reasonable and ordinary care to detect such condition and to notify the [Appellees] of such condition so as to provide a reasonably safe place for herself and others. [Appellant] failed to do this and

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said failure constituted negligence and said negligence was the direct and proximate cause of the accident . . . .

On May 29, 2014, Appellees filed a motion for summary judgment. In their statement of undisputed material facts, which was filed in support of the motion for summary judgment, Appellees stated that Ms. Fuller had lived in the duplex apartment since July 1, 2010. Appellees further stated that Ms. Fuller had never notified Mr. Banks of any problem with the Premises. Specifically, Appellees' statement of undisputed facts provides:

17. Whenever [Ms. Fuller] would go inside and outside her house, go indoors and outdoors, she would come out that front door and go down those steps. There was also a back door, but any time she would come in the front door or go out the front door to go outside, she would have to come out on that porch and go down those steps.
18. At no time prior to falling did Mamie Fuller notice anything wrong with the railing or the steps. At no time before she fell, did she ever call Mr. Banks to come look at the steps, the railing, or come fix the railing or the steps.
19. She would go in and out the front door every day several times, three or four times a day. She had to go out the front to get to her car. Every time she would go out the front door, [she] would always use the railing to lean on. Before she fell, she did not know that there was any kind of problem with the railing.

***
25. Ms. Fuller fell in the afternoon of June 16, 2011, around 5:30 p.m. She was coming up the steps when she fell. She had already been outdoors at least a couple of times that day. . . . On those two or three times that she had gone outside the house and come back in the house before she fell, she had used the post and the railing to go up and down. She had not noticed anything wrong with it. It did not feel unsteady to her and she had no problem with it. It was steady.

On July 25, 2014, Ms. Fuller filed a response in opposition to Appellees' motion for summary judgment. On July 28, 2014, the trial court held a hearing on the motion for summary judgment. The trial court granted the motion for summary judgment by order of May 13, 2015.

II. Issues

Although Ms. Fuller raises three issues in her brief, we perceive that there are two dispositive issues, which we state as follows:

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1. Whether the trial court made sufficient findings in its order granting summary judgment

2. Whether the trial court erred in granting Appellees' motion for summary judgment.

III. Standard of Review

For actions initiated on or after July 1, 2011, such as the one at bar, the applicable standard of review for summary judgment is set out in Tennessee Code Annotated Section 20-16-101. See Rye v. Women's Care Center of Memphis, MPLLC, — S.W.3d —, —, 2015 WL 6457768 at *11 (Tenn. Oct. 26, 2015). The statute provides:

In motions for summary judgment in any civil action in Tennessee, the

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