Piana v. Old Town Of Jackson

• Decision Date: 28 September 2009
• Docket Number: No. W2007-02832-COA-R3-CV.,W2007-02832-COA-R3-CV.
• Citation: 316 S.W.3d 622
• Parties: Mattie PIANA, et al.v.OLD TOWN OF JACKSON, et al.
• Court: Tennessee Court of Appeals

316 S.W.3d 622

Court of Appeals of Tennessee Western Section, at Jackson.

Mattie PIANA, et al.v.OLD TOWN OF JACKSON, et al.

No. W2007-02832-COA-R3-CV.

Nov. 19, 2008 Session.

Feb. 6, 2009.

Application for Permission to Appeal

Denied by Supreme Court

Sept. 28, 2009.

COPYRIGHT MATERIAL OMITTED

David W. Camp, Jackson, TN, for Appellant, Mattie Piana, et al.

David I. Feigelson, Memphis, TN, for Appellee, Brooks Shaw & Son Old Country Store Inc.Kyle C. Atkins and Terri Smith Crider, Humboldt, TN, for Appellee, Town and Country Property Management.

OPINION

J.STEVEN STAFFORD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

J.STEVEN STAFFORD, J.

This is an wrongful death action arising under a theory of premises liability.Plaintiff's husband died as a result of injuries he sustained after tripping over a piece of concrete embedded in a dirt path.Plaintiff alleged that two of the defendants, who were under a separate maintenance contract with the owner of the property, failed to exercise the required due care in the maintenance, inspection, and repairs of the path.The trial court granted directed verdicts for both defendants after finding that neither owed a duty to Plaintiff's husband.We agree that defendantBrooks Shaw did not have a duty to maintain the path.However, we have determined that defendant Town and Country did owe a duty to Plaintiff's husband.Viewing the evidence in the light most favorable to the plaintiff, we find that there are genuine issues of material fact for the jury to decide.We therefore reverse and remand for further proceedings.

Facts and Procedural History

In 1978, DefendantsOld Town of Jackson, Inc.(“Old Town”) and Brooks Shaw & Son Old Country Store, Inc.(“Brooks Shaw”) began constructing the commercial development known as Casey Jones Village in Jackson, Tennessee.Casey Jones Village consists of four acres.Old Town owns one acre, and Brooks Shaw owns the other three.Old Town's one acre lot lies directly north of property owned by DefendantsDonald G. Taylor and Brenda Taylor d/b/a Days Inn of Jackson (“Days Inn”).

Prior to 1999, there was a thirty-five foot ditch on the southern part of Old Town's property.Then, the City of Jackson installed an eight foot culvert and partially filled the ditch.Afterwards, customers walked over a dirt path, created by foot traffic, on the ditch to approach Casey Jones Village from the Days Inn hotel.The path is located on Old Town's property.

In 1984, J. Reginald Smith, on behalf of Old Town, and Clark Shaw, on behalf of Brooks Shaw, orally entered into a maintenance agreement.Under the agreement, each party would take care of its own buildings.Brooks Shaw also agreed to maintain the common grounds of Casey Jones Village.Mr. Smith testified that the common grounds consisted of “the parking lot, the flower beds, and the grassy areas on the edge of the buildings.”When the agreement was reached, the dirt path did not exist.After 1999, Brooks Shaw did not inspect or perform maintenance on either the ditch or the path, and Mr. Smith did not ask Brooks Shaw to do so.

In 1993, Old Town entered into a written agreement with Defendant Town and Country Property Management, Inc. (“Townand Country”).¹Under the contract, Town and Country agreed to maintain and manage all of Old Town's property at Casey Jones Village.The agreement specifically authorized Town and Country to make “all ordinary repairs and replacements reasonably necessary to preserve the Premises in its present condition and for the operation efficiency of the Premises.”Because Brooks Shaw also had maintenance obligations, the agreement did not require Town and Country to maintain the parking lot.Town and Country's primary obligation under the agreement was to maintain Old Town's building and to collect rent from tenants.Mr. Smith did not specifically discuss the maintenance of the ditch with Town and Country.

Frank Piana, Sr., his wife, Mattie, and their grandson were guests at Days Inn in July 2002.On July 13, 2002, Mr. Piana wanted to take his grandson to play miniature golf at Casey Jones Village.They left the hotel and began crossing the dirt path between the hotel and the Village.While crossing the path, Mr. Piana tripped over a small piece of concrete that was covered by grass.He suffered severe injuries and ultimately died from those injuries on April 25, 2003.

On July 3, 2003, Mattie Piana, individually and as Mr. Piana's personal representative, filed a Complaint in the Madison Country Circuit Court.The Complaint alleged negligence on the part of several Defendants: Old Town, Brooks Shaw, the City of Jackson, Days Inn, and Town and Country.With respect to Brooks Shaw and Town and Country, Ms. Piana alleged that they failed to exercise the required due care in the maintenance, inspection, and repair of the dirt path and/or to properly warn Mr. Piana of the dangers existing on that path.The City of Jackson and several other defendants were granted summary judgment and are not parties to this appeal.Likewise, Ms. Piana reached a settlement with Old Town prior to trial.

At trial, three defendants remained: Days Inn, Brooks Shaw, and Town and Country.At the close of Plaintiff's proof, all three defendants moved for directed verdicts.The trial court took the motions under advisement, and Town and Country presented its proof.When Town and Country concluded, the trial court granted directed verdicts for both Town and Country and Brooks Shaw.²The trial court found that Brooks Shaw did not owe a duty to the Plaintiff because it neither owned nor maintained the premises where Mr. Piana fell.Similarly, the trial court found that Town and Country did not owe a duty to Mr. Piana.The trial court stated that any duty owed by Town and Country must stem from the terms of its maintenance agreement with Old Town.After examining those terms, the trial court concluded that Town and Country was not obligated to inspect or repair the dirt path on Old Town's property.

As the sole remaining Defendant, Days Inn presented its proof, and the case was submitted to the jury.The jury only considered the fault of Mr. Piana, Old Town, the City of Jackson, and Days Inn.The jury attributed 70% of the fault to Old Town and 30% to Mr. Piana.The jury also found $3,000,000 in damages.The plaintiff, however, had already settled with Old Town, and therefore, could not recover additional damages based upon the jury verdict.

Ms. Piana now appeals the trial court's decision to grant directed verdicts for Brooks Shaw and Town and Country.

Standard of Review

A trial court's decision to grant a motion for directed verdict involves a question of law.Underwood v. HCA Health Servs. of Tennessee, Inc.,892 S.W.2d 423, 425(Tenn.Ct.App.1994).On appeal, we apply the same standard used by the trial court when ruling on the motion initially.United Brake Sys., Inc. v. Am. Envtl. Prot., Inc.,963 S.W.2d 749, 754(Tenn.Ct.App.1997).Accordingly, we do not weigh the evidence or evaluate the credibility of witnesses.Id.(citingUnderwood,892 S.W.2d at 425).Rather, we consider all of the evidence, taking the strongest legitimate view of it in the non-moving party's favor.Eaton v. McLain,891 S.W.2d 587, 590(Tenn.1994).The court should grant the motion, “only if, after assessing the evidence according to the foregoing standards, it determines that reasonable minds could not differ as to the conclusions to be drawn from the evidence.”Id.

Law and Analysis

A negligence claim requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause.Hale v. Ostrow,166 S.W.3d 713, 716(Tenn.2005);Coln v. City of Savannah,966 S.W.2d 34, 39(Tenn.1998).

The focus in the present case is on the first element of negligence, the duty of care.The existence of a duty is a question of law.Hale,166 S.W.3d at 716;Coln,966 S.W.2d at 39.Legal duty has been defined as the legal obligation owed by a defendant to a plaintiff to conform to a reasonable person standard of care for the protection against unreasonable risks of harm.West v. East Tennessee Pioneer Oil Co.,172 S.W.3d 545, 551(Tenn.2005).A “risk is unreasonable and gives rise to a duty to act with due care if the forseeable probability and gravity of harm posed by defendant's conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.”McCall v. Wilder,913 S.W.2d 150, 153(Tenn.1995).When deciding whether a duty is owed in a specific case, “courts apply a balancing approach, based upon principles of fairness, to identify whether the risk to the plaintiff was unreasonable.”Burroughs v. Magee,118 S.W.3d 323, 328-29(Tenn.2003).When balancing the relevant factors, the “foreseeability prong is paramount because ‘foreseeability is the test of negligence.’ ”Hale,166 S.W.3d at 716-17(quotingBiscan v. Brown,160 S.W.3d 462, 480(Tenn.2005)).

A. Brooks Shaw

The trial court found that Brooks Shaw did not owe a duty to Mr. Piana because the common maintenance agreement between Brooks Shaw and Old Town did not require Brooks Shaw to maintain the ditch area or the path.Brooks Shaw did not own the property on which Mr Piana fell.Accordingly, Brooks Shaw could not owe a duty to Mr. Piana as the owner of the premises.SeeHale,166 S.W.3d at 717-18;Benson v. H.G. Hill Stores, Inc.,699 S.W.2d 560, 562(Tenn.Ct.App.1985).Therefore, the trial court correctly concluded that any duty Brooks Shaw might owe to Mr. Piana must stem from its common maintenance agreement with Old Town.

The oral agreement between Brooks Shaw and Old Town was reached in 1984.The agreement required Brooks Shaw to maintain its building and the “common...