In Palmer v. Kees, No. E2014-00239-COA-R3-CV (Tenn. Ct. App. June 1, 2015), a recent premises liability case, plaintiff leased an apartment from defendant and sued defendant for injuries sustained when a board on the stairs leading from the apartment to the ground collapsed. The deck and stairs at the apartment had been built two days before plaintiff began his lease on March 1, 2011. According to plaintiff, during the fall of 2011 he complained to defendant landlord about some wood boards on the deck and stairs that were warped. Defendant hired a repairman to fix the warped boards, and the repairman stated that he left the deck and stairs in good condition. Plaintiff’s fall occurred on April 30, 2012, and he did not present any evidence that he informed defendant about problems with the stairs between the repair and the fall or that defendant otherwise had knowledge of any alleged problems preceding the fall.
The trial court granted summary judgment for defendant landlord, finding that “the proof in the record does not support that the defendant had notice of the dangerous condition.” The Court of Appeals affirmed.
The Court noted that a landlord is generally not liable for injuries sustained by a tenant due to dangerous conditions on the leased property, although exceptions to this rule exist. A landlord can be subjected to liability if the plaintiff can show that “(1) the dangerous condition was in existence at the time the lease was executed; (2) the landlord knew or should have known of the dangerous condition; and (3) the tenant did not know of the condition and could not have learned about it through the exercise of reasonable care.” While the plaintiff argued that this exception applied to the instant case, the Court disagreed. Plaintiff presented no evidence that the stairs were dangerous at the time the lease was executed, and he did not show that defendant had knowledge of a dangerous condition on the stairs. Without such evidence, this exception did not apply.
Plaintiff also argued that a second exception applied here wherein a landlord can be held liable if he “has negligently repaired the premises…[.]” The Court relied on the repairman’s testimony that he left the deck and stairs in good condition to determine that this exception was inapplicable. Plaintiff presented no evidence to show that the repairs failed to remedy the situation or that defendant had knowledge of any problems with the repairs. Thus, summary judgment for defendant landlord was affirmed.
This case is a reminder that, in order to survive a motion for summary judgment, premises liability plaintiffs must have some proof of defendant’s knowledge of the alleged dangerous condition. Actual or constructive knowledge of the dangerous condition is an essential element in premises liability actions. Here, a plaintiff was suing a landlord for injuries sustained at an apartment he had lived in for over a year. Based on the description in the case, plaintiff used these stairs every time he left his apartment. The fact that he had not complained to his landlord since the autumn preceding his injury in the spring killed his case, as he certainly would have had more reason and opportunity to notice any dangerous condition than would his landlord. In a case like this, it is vital that plaintiffs present some proof of notice, which the plaintiff here apparently failed to do.
Sometimes it is difficult to know if your client has a valid claim because the defendant refuses to share information before suit is filed. This is puzzling – we hear all this complaints about “frivolous” lawsuits but when you ask a potential defendant to share information pre-suit the request is frequently denied. In these cases, consider documenting your file with your pre-suit efforts to get the information and have an understanding with your client that if the requisite evidence is not produced in discovery the case will not be able to proceed.