Parker v. Holiday Hospitality Franchising, Inc., No. E2013–00727–SC–R11–CV.

CourtSupreme Court of Tennessee
Writing for the CourtCORNELIA A. CLARK, J.
Citation446 S.W.3d 341
Docket NumberNo. E2013–00727–SC–R11–CV.
Decision Date12 September 2014

446 S.W.3d 341

Greg PARKER, et al.

No. E2013–00727–SC–R11–CV.

Supreme Court of Tennessee, at Nashville.

May 29, 2014 Session.1
Sept. 12, 2014.

446 S.W.3d 343

W. Richard Baker, Knoxville, Tennessee, for the appellants, Greg and Diane Parker.

Brian H. Trammell, Andrew J. Lewis, Knoxville, Tennessee, for the appellee, Shashi Patel, d/b/a S.P. Partnership d/b/a Holiday Inn Express.

James Bryan Moseley, Murfreesboro, Tennessee, for the amicus curiae, James Bryan Moseley.


CORNELIA A. CLARK, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.


We granted permission to appeal in this premises liability action to address two issues: (1) whether the undisputed facts establish either the accepted work doctrine exception or the nondelegable duty to the public exception to the general rule that property owners are not vicariously liable for the negligence of independent contractors; and (2) whether disputes of material fact remain concerning the property owner's actual or constructive notice of the defective condition created by the independent contractor's negligence. We hold that the undisputed facts do not establish either exception to the general rule of non-liability and that the undisputed facts establish that the property owner had neither actual nor constructive notice of the defective condition created by the independent contractor's negligence. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the trial court granting the property owner summary judgment is reinstated.

I. Factual and Procedural Background

The following facts are undisputed. On May 12, 2010, Greg and Diane Parker, a married couple, came to Tennessee from their home in California to visit Ms. Parker's father. Mr. Parker had been injured in a 2004 logging truck accident and was paralyzed from the waist down, so the couple rented a handicap accessible room at the Holiday Inn Express (“Hotel”) in Harriman, Tennessee. The defendant, Shashi Patel, owned and operated the Hotel, doing business as S.P. Partnership,

446 S.W.3d 344

which, in turn, was doing business as Holiday Inn Express (collectively referred to herein as “Mr. Patel” or “the defendant”).

The Parkers checked into Room 229 at approximately 4:00 or 5:00 p.m. on May 12th. As was their custom when traveling, the Parkers inspected the bathroom and noticed a “gap between the shower bench and the wall.” To Mr. Parker it appeared that one of the upper brackets supporting the bench “was pulled away from the wall maybe an eighth of an inch or a little more.” After shaking and pressing down on the bench to confirm that it was “loose or not secured to the wall,” Mr. Parker returned to the front desk, reported the loose shower bench, and requested a different room. Hotel staff informed Mr. Parker that no other handicap accessible rooms were available but assured him that someone would repair the shower bench.

After the Parkers left the Hotel for dinner a short time later, Craig Tyner, the Hotel maintenance man, entered their room and inspected the shower bench. Mr. Tyner did not notice any “obviously loose bolts or other problems with the shower bench.” However, “[b]ecause a complaint had been made,” he “tightened the shower bolts that fastened the shower bench to the wall.” After doing so, Mr. Tyner pressed down on the bench, and it “did not bow or move in any way.”

When the Parkers later returned from dinner, Mr. Parker checked the shower bench and saw “that it was bolted up flush to the wall like it should be.” Mr. Parker also “manually pushed on” the shower bench, and it did not “shake or sound loose.” Ms. Parker also looked at the shower bench and no longer saw the gap between the bench and the wall, which she had noticed earlier. According to Ms. Parker, when she and her husband pressed on the bench it “seemed stronger” and barely flexed.

On the morning of May 13, 2010, Mr. Parker went into the bathroom alone to shower. Mr. Parker transferred himself from his wheelchair to the shower bench and had been showering for approximately ten minutes when the bench suddenly collapsed, causing Mr. Parker to fall to the floor of the shower. Mr. Parker's buttocks hit the floor first, but the backs of his legs and his right shoulder also hit the wall and floor as he fell.

Ms. Parker, who had been using a mirror just outside the bathroom door, heard the crash and immediately entered the bathroom. Ms. Parker described the bathroom as “very dangerous,” explaining that the floor was wet and covered in broken tiles and her husband looked “very distressed” and grimaced with pain. Ms. Parker helped her husband move out of the bathroom and onto the bed, dragging him from one area to the other on a towel. Ms. Parker examined Mr. Parker's body and discovered a red “welt” near his tailbone. She also photographed Mr. Parker's injuries and the collapsed shower seat.

After composing himself and dressing, Mr. Parker reported the incident to the person on duty at the Hotel's front desk. This person, in turn, informed Mr. Patel of the incident. After making the report, the Parkers left the Hotel to visit Ms. Parker's father. When they returned, the Hotel staff moved the Parkers into another handicap accessible room, where they remained for the duration of their visit to Tennessee.

Later that same day, Mr. Parker began experiencing pain in his entire back, extending from between his shoulder blades to his tailbone. The next day, May 14, 2010, the Parkers went to Methodist Medical Center in Oak Ridge, Tennessee, where x-rays were taken of Mr. Parker's mid-

446 S.W.3d 345

back. Mr. Parker was released, given a prescription for pain medication, and advised to follow up with his own primary care physician. When he returned to California, Mr. Parker saw his primary care physician, who ordered more x-rays that revealed compression fractures to three vertebrae (T–7, T–8, and T–9) of Mr. Parker's thoracic spine. Mr. Parker later developed pressure sores on his buttocks and suffered more frequent urinary tract infections and bladder pain than he had experienced before the fall he sustained when the shower bench collapsed.

On May 11, 2011, the Parkers filed suit against Mr. Patel individually and against the entities by which he was doing business: S.P. Partnership and Holiday Inn Express.2 The Parkers sought compensatory damages for Mr. Parker's past and future medical expenses, loss of quality of life, physical pain, and mental suffering and for Ms. Parker's “loss of society, services, care and consortium.” The Parkers also sought punitive damages.

Mr. Patel denied liability and raised a comparative fault defense, claiming, as pertinent to this appeal, that D & S Builders, LLC (“D & S Builders”) negligently constructed or installed the shower bench. The Parkers responded by amending their complaint to allege that D & S Builders had failed to install the shower bench according to the manufacturer's specifications, had concealed the defective installation with a sheetrock and tile wall, and had failed to inform Mr. Patel of the defective installation. The trial court entered an order on August 8, 2012, dismissing the Parkers' claims against D & S Builders based on the expiration of the applicable statute of repose.3

Mr. Patel then moved for summary judgment, arguing that: (1) the defective installation of the shower bench was a latent defect caused by the negligence of an independent contractor, D & S Builders; (2) that he had no actual or constructive notice of the defect; and (3) that he had no duty to inspect the independent contractor's work. For purposes of the summary judgment motion, the parties agreed that the following additional facts are undisputed: (1) the shower bench collapsed because D & S Builders failed to use proper blocking to secure it to the interior wall; (2) at the time the bench collapsed the defective installation was concealed by a sheetrock wall; (3) the defect could have been discovered if the shower bench installation had been inspected during the Hotel's construction, before the sheetrock wall was installed; (4) Mr. Patel visited the Hotel once or twice per week during its construction but did not personally inspect the shower bench at any time prior to its collapse; (5) Mr. Patel would have noticed the absence of proper support on the shower bench had he inspected it during installation; (6) Mr. Patel relied upon D & S Builders to construct the Hotel in a reasonably safe manner free from defects; (7) the shower

446 S.W.3d 346

bench was designed to support a person weighing up to 350 pounds if properly installed; (8) Mr. Parker weighed 200 pounds when the shower bench collapsed; (9) Mr. Patel had never received any complaints about the shower benches at the Hotel prior to this incident; (10) no other handicap shower bench at the Hotel had collapsed prior to this incident; and (11) Mr. Patel took possession of the Hotel from D & S Builders in July 2006.


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