Palmer v. Kees

• Decision Date: 01 June 2015
• Docket Number: No. E2014-00239-COA-R3-CV,E2014-00239-COA-R3-CV
• Court: Tennessee Court of Appeals
• Parties: JEFFREY RICHARD PALMER v. BILL KEES

JEFFREY RICHARD PALMER
v.
BILL KEES

No. E2014-00239-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

April 15, 2015 Session
JUNE 1, 2015

Appeal from the Circuit Court for Anderson County
No. B3LA0021
Donald R. Elledge, Judge

The plaintiff tenant in this action rented an apartment from the defendant landlord. Attached to the apartment were a wooden deck and staircase leading to the ground below. The tenant filed suit against the landlord for injuries the tenant sustained when a board on the stairs collapsed, causing the tenant to fall. The trial court granted summary judgment in favor of the landlord because the tenant could not show that the landlord had knowledge of any dangerous condition on the leased premises. The tenant has appealed. Discerning no error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL SWINEY and BRANDON O. GIBSON, JJ., joined.

Kevin C. Angel, Oak Ridge, Tennessee, for the appellant, Jeffrey Richard Palmer.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Bill Kees.

OPINION

I. Factual and Procedural Background

The plaintiff, Jeffrey Richard Palmer, filed the instant action on June 22, 2013, against the defendant, Bill Kees, who is Mr. Palmer's landlord. Mr. Kees leased an apartment to Mr. Palmer pursuant to a written lease dated March 1, 2011. Mr. Palmer asserted that on April 30, 2012, while he was descending a flight of stairs that led from the deck outside his apartment to the ground, a step broke and caused him to fall and injure himself. According to Mr. Palmer, the deck and steps were constructed a mere two days before he leased the apartment, but the wood had begun to warp and rot by the time

Page 2

of his fall. Mr. Palmer stated that he suffered a torn ligament in his right leg and that his injuries were sufficiently severe to require surgical intervention, causing him to incur significant medical expenses.

In his complaint, Mr. Palmer alleged that he had informed Mr. Kees before his fall regarding his concerns about the condition of the steps, but Mr. Kees had assured him the stairs were safe. Mr. Palmer asserted that the stairs constituted a dangerous condition of which Mr. Kees was aware. Mr. Palmer further claimed that Mr. Kees was contractually obligated to maintain the stairs pursuant to the parties' lease. He averred in his complaint that Mr. Kees had been neglectful, negligent, and in breach of his contractual duty, resulting in injury to Mr. Palmer.

In response, Mr. Kees filed an answer, denying any liability. Mr. Kees stated in his answer that during the autumn of 2011, Mr. Palmer had pointed out some warped boards on the deck and stairs. Mr. Kees maintained that he immediately had the warped boards on the stairs and deck replaced. Mr. Kees thus stated that he had no knowledge of any ongoing problem with the stairs prior to Mr. Palmer's fall. Mr. Kees also generally denied Mr. Palmer's characterization of the language contained in the parties' lease. Mr. Kees subsequently filed a motion for summary judgment based on his lack of notice of the allegedly dangerous condition of the stairs.

Concomitant with the filing of his motion, Mr. Kees filed excerpts from Mr. Palmer's deposition. In his deposition, Mr. Palmer testified that he had informed Mr. Kees about problems with some boards on the deck. Mr. Palmer acknowledged, however, that he had not mentioned anything to Mr. Kees about the stairs prior to his fall. Mr. Palmer also stated initially that no repairs were made to either the deck or stairs prior to his fall.

Mr. Palmer subsequently filed a response to the motion for summary judgment, reversing his earlier position that no repairs had been made and asserting that Mr. Kees had negligently repaired the stairs in question. According to Mr. Palmer, Mr. Kees hired Jerry Ward to make repairs to the steps in the autumn of 2011. Mr. Palmer attached to his response Mr. Ward's deposition, wherein Mr. Ward testified that he had worked on the deck and stairs and replaced a few boards in the autumn of 2011. Mr. Ward described the boards as having been warped and "turned up" by the sun's heat.

According to Mr. Ward, although the deck and stairs were relatively new, they showed significant warping. Mr. Ward opined that the deck was in a "hot spot" where it received too much sunlight or that there was an issue with the wood used when the deck and stairs were constructed. According to Mr. Ward, the wood should have lasted a longer time before warping. Mr. Ward stated that he replaced the warped boards on the

Page 3

deck and stairs at Mr. Kees's request, prior to Mr. Palmer's fall, at a time when Mr. Palmer was not at home. Mr. Ward was asked whether he was concerned about the state of the deck and stairs after his repairs, to which he replied, "It looked pretty good when I left it."

Following a motion hearing, the trial court granted summary judgment to Mr. Kees on January 21, 2014. In its final order, the court stated, inter alia:

Came the parties on Friday, January 10, 2014, by and through counsel, for oral argument of the defendant's motion for summary judgment. After reviewing the record as a whole and hearing the argument of counsel, the Court hereby finds the motion well taken and thus the motion is GRANTED. The Court

...