Day on Torts
Where an independent contractor working at a convenience store had been told that the store had been robbed before, neither the landlord nor the operator of the store were liable when he was injured in an armed robbery.
In Priestas v. Kia Properties, LLC, NO. W.2019-00728-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2019), plaintiff worked as an independent contractor for a convenience store run by one defendant, which was in a property owned by the other defendant. Plaintiff was hired when he stopped at the store one night upon seeing multiple police cars there, and was told there had just been a robbery. Plaintiff was hired to work “a few hours a day to perform tasks such as stocking the store’s coolers and cleaning up inside and outside the store.” The owner told plaintiff that the store “had been burglarized/robbed on several prior occasions,” and plaintiff informed the owner that he would carry a concealed firearm when working. Approximately two months after he began working, plaintiff was shot during a robbery. Plaintiff was attempting to wrestle a gun from an armed robber when the shooting occurred.
Plaintiff filed this premises liability suit against the owner of the property and the owner/operator of the convenience store. The trial court granted summary judgment to both defendants, and the Court of Appeals affirmed.
The Court first looked at the potential liability of the operator of the convenience store who had hired plaintiff as an independent contractor. In Tennessee, “an owner/operator generally owes an independent contractor hired to perform work on the premises a duty to provide a reasonably safe place in which to work. The duty includes the specific responsibility of either removing, or warning the independent contractor of, any hidden or latent dangers on the property.” (internal citations omitted). Here, defendant operator warned plaintiff that the property had been robbed several times before. In addition, plaintiff “acknowledged the fact that the store had been robbed on several occasions” when he told defendant that he would carry his concealed weapon while working. Based on these facts, the Court concluded that “a reasonable person could only conclude that [defendant] met its duty to warn [plaintiff] of the robberies that had taken place on the property,” and that plaintiff could thus not show that defendant store operator breached its duty.
Looking next to the owner of the property, the Court summarized a landlord’s potential liability by stating that “[g]enerally, a landlord is not liable to a tenant or a third party for harm caused by a dangerous condition on the leased premises.” (internal citation omitted). There is an exception to the general rule, though, when “(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.” (internal citation omitted). Notably, “when a landlord and a tenant have co-extensive knowledge of the dangerous condition, the landlord is not liable to the tenant, or the tenant’s employees, for injuries sustained as a result of the dangerous condition.” (internal citation omitted).
Here, the Court ruled that there was “no doubt” that defendant landlord and the tenant/operator of the store had co-extensive knowledge of the fact that the store had been robbed before. The Court specifically noted that the two defendants had worked together to install measures to deter crime at the property, showing that they both knew about the history of robberies. Because the operator of the store had knowledge of the danger, defendant landlord was not liable to plaintiff for his injuries.
Plaintiff argued that the landlord was nonetheless liable because it acted as a principal and retained control over the store. The Court rejected this argument, noting that while the agreement between the two entities provided that a gas station and convenience store would be opened, the tenant operated the business independently and “had no obligation to remit any proceeds to [landlord] other than its lease payments.” The trial court’s grant of summary judgment for both defendants was affirmed.
This opinion contains a good summary of premises liability law with regards to both independent contractors and landlords, but it’s also notable for another reason. The facts used by both the trial court and the Court of Appeals came directly from defendants’ statement of undisputed facts. Because plaintiff failed to respond to defendants’ statement of facts, defendants were able to shape the facts in a way that directly supported summary judgment, showing the importance of responding to this portion of a motion for summary judgment.
NOTE: to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released about five weeks after oral argument.