Helton v. Reynolds

• Decision Date: 19 March 1982
• Citation: 640 S.W.2d 5
• Parties: Sherry HELTON, Administratrix of The Estate of Tony Linn Helton, and Herbert H. Helton, Plaintiffs-Appellees, v. Harris REYNOLDS, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 5

640 S.W.2d 5

Sherry HELTON, Administratrix of The Estate of Tony Linn Helton, and Herbert H. Helton, Plaintiffs-Appellees, v. Harris REYNOLDS, Defendant-Appellant.

Court of Appeals of Tennessee Eastern Section.

March 19, 1982.

Application for Permission to Appeal

Denied by Supreme Court

Oct. 4, 1982.

James O. Phillips, III, William E. Phillips, Rogersville, for defendant-appellant.

Thomas D. Shelburne, Rogersville, for plaintiffs-appellees.

OPINION

GODDARD, Judge.

Harris Reynolds, Defendant-Appellant, appeals a $70,000 judgment rendered against him in favor of Sherry Helton, Administratrix of the estate of Tony Linn Helton, and Herbert H. Helton, Plaintiffs-Appellees, for the wrongful death of their son who was tragically drowned in an open pit located on the Defendant's property.

The Appellant presents five issues which question (1) the Court's charge to the jury relative to the Defendant's gross negligence, (2) his failure to sustain a motion for directed verdict, (3) his charge to the jury as to damages, and his denial of the Defendant's special request relative thereto, (4) his refusal to grant a new trial when (a) the weight of the evidence favored the Defendant and (b) the jury's verdict was contrary to the law and evidence, and (5) his repeating the charge relative to gross negligence after the jury had deliberated for a period and returned for further instruction.

The Heltons entered into an employment agreement with Mr. Reynolds on Wednesday, March 15, 1978. The agreement, which was terminable at the will of either party, called for the Plaintiffs to perform milking and other incidental duties on Mr. Reynolds' dairy farm and in return they would each receive $125 per week plus use and possession of Mr. Reynolds' tenant house. When the Heltons actually moved into the tenant house on the following Saturday, their two children, Tony Linn Helton, age two years, nine months, and Danny Helton, age four years, ten months, along with two of Mr. Helton's brothers, Michael, age 14, and Ralph, age 17, were living with them.

Located approximately 10 feet from the tenant house was an open pit dug preparatory to laying a field line for a septic tank which served the house. The pit, which was eight to 10 feet wide and 30 to 40 feet long, was filled with water. The parties recognized the dangerous nature of the pit and the need to fill it in, but there is conflicting testimony as to the time when the work would be done. Mrs. Helton testified that on the Sunday morning after they had moved in on Saturday, while at the milking barn, she asked about the pit and that Mr. Reynolds volunteered, "I didn't have to ask him. He volunteered. He said, 'I've been needing to get that done. I'll get Jay or Bill [his two sons] to come over there tomorrow and fix that up.' " However, Mr. Reynolds testified that he told both Mr. and Mrs. Helton that he would "fix it just as soon as it dryed up" so that he could get a truck in.

The following Saturday, March 25, at approximately 9:00 a.m., the Heltons went to the milking barn to clean. Prior to leaving for the barn they instructed Michael and Ralph Helton to watch the younger children and to keep them away from the side of the house where the pit was located. At this time two neighbor children, Timmy and Michael Johnson, were also at the house. While watching the younger children Ralph Helton and Mike Johnson decided to go to the barn (about 500 feet from the tenant house) to seek permission for Ralph to spend the night with Mike. Prior to leaving Ralph instructed Michael Helton to watch the children. As Mike Johnson and Ralph were returning from the barn Timmy Johnson came running to them saying that Tony had drowned. When Ralph ran back to the house he saw Tony Helton floating face down in the water with a big wheel tricycle, which he had been riding, floating nearby. Tony was pulled out of the pit and taken to the hospital where he was pronounced dead on arrival.

Two or three days after the accident Mr. Reynolds completed work on the field line even though some of the machinery used became mired. There is also proof that because of the weather conditions the work was not completed "like it should have been."

A helpful discussion of a landlord's liability by Professor Dix W. Noel is found in 30 Tenn.Law Rev. 368, where much of what we will say on this subject is found.

Historically a lease transaction was considered to be a sale of an interest in land. This apprehension severely limited the landlord's tort liability for defects in leased premises. The doctrine of caveat emptor allowed the landlord to knowingly lease premises that were in a dangerously defective condition and placed the burden on the lessee to determine the condition of the premises prior to the actual lease. If the premises later proved to be defective the landlord was under no obligation to repair because, as mentioned above, the estate was deemed to have been transferred and the lessor had no right to unilaterally enter the premises.

The harsh common law rule, however, was ameliorated by an exception which provided that a landlord would be liable for dangerous conditions known to him but not disclosed to his tenant. Tennessee follows the general rule but has broadened the exception to include dangerous conditions which the landlord could have learned by the exercise of proper care and diligence. Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914 (1896). Moreover, under the general rule as well as The Restatement of Torts, Sec. 356 (1934), the rule of non-liability for obvious defects applies not only to a suit by the tenant, but others who may enter the premises with the tenant's consent.

In light of the foregoing we conclude that as to the Plaintiffs' first theory of liability--conventional negligence may not be sustained, and the Trial Court should have directed a verdict in the Defendant's favor. We say this because we believe, even when viewing the proof in the light most favorable to the Plaintiffs, that the danger associated with the open water-filled pit was as obvious to the Heltons as it was to Mr. Reynolds, a circumstance under the authority above cited which would preclude Mr. Reynolds being cast in judgment. Indeed, taking the charge of the Trial Court on this subject, hereinafter set out, it is apparent as to this theory that reasonable minds could not differ under the facts of this case:

Ordinarily an owner of premises leased to a tenant is not liable for any injury to the tenant or member of his household that results from a dangerous condition of the premises which existed when the tenant took possession, however, when the tenant took possession of the premises there was some unsafe condition of which the owner had actual knowledge, or in the exercise of reasonable care, should have known, but which was not known to the tenant, and the danger of which was not apparent and was not such as would have been discovered by a reasonable inspection of the premises, the owner was under a duty to inform the tenant of the danger and if the owner failed to do so he is subject to liability to the tenant, or to the members of his household, for injuries resulting from the unsafe condition.

Notwithstanding our determination with regard to the first theory, because of T.C.A. 20-9-502 ¹ and of decisional law, the judgment must still be affirmed if the proceedings as to a second theory are free of reversible error. Clinchfield Railroad Co. v. Forbes, 57 Tenn.App. 174, 417 S.W.2d 210 (1966); Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953); City Transp. Corp. v. Seckler, 32 Tenn.App. 661, 225 S.W.2d 288 (1949).

Where a tenant was able to bargain for a promise to repair the premises, the majority of the courts traditionally treated any breach of the agreement as a mere breach of contract and when personal injury resulted from the breach damages were limited to the cost of making the repair. This view was premised on the belief that the landlord's role in making repairs was no greater than that of a carpenter under contract. However, Tennessee courts, following the modern trend of the law recognizing the special relationship between a landlord and his tenant, hold the landlord liable for personal injuries resulting from the negligent breach of a promise to repair. In Merchants' Cotton Press & Storage Co. v. Miller, 135 Tenn. 187, 196, 186 S.W. 87, 89 (1916), the Supreme Court articulates the justification for imposing this burden on the lessor:

There is no undue hardship on the lessor in such case. He has seen fit to interpose his own agreement to repair, and thereby tended, at least, to cause the lessee to hold back and wait for its execution on his part. He has elected to retain for his own, as primarily resting on him, the duty of care in the particular regard, and should not complain if the law leaves the burden where he placed it and holds him not exempt.

"To suffer such an exemption ... we think would be contrary to public policy and substantial justice, for it would not unfrequently operate to deprive the injured party of all remedy except against an irresponsible tenant through whom a negligent landlord would reap the profits, without bearing the responsibilities, of his proprietorship." Campbell v. Portland Sugar Co., 62 Me., 552, 16 Am.Rep., 503.

While the duty to repair is a tort duty, it arises out of the contract which delineates the duty owed. Thus the promise to repair must be supported by adequate consideration. In Boyd v. McCarty, 142 Tenn. 670, 222 S.W. 528 (1919), the Court held that the promise to repair was not supported by any consideration and was a mere nudum pactum. In Boyd the Court appeared to emphasize the fact that the lease was for a term of years and had been paid for with notes. However, in Gary v. Spitler, 10 Tenn.App. 34 (1928), the Court distinguished Boyd by noting the month-to-month nature of the lease in question. The Court concluded that the...