Claim Washed Down the Drain By Tennessee Statute of Repose and Lack of Constructive Notice

Tthis is a premise liability case arising from the collapse of a bench in a handicap shower at the defendant’s hotel.   Upon checking into their handicap room at the Holiday Inn Express, the Parkers noticed the bench in the handicap shower appeared to be loose.  The brackets were pulled away from the wall a bit and the bench itself was shaky when pressed on.   The Parkers reported the problem, and the hotel’s maintenance man tightened the bolts.  Both the maintenance man and the Parkers testified the tightening of the bolts on the bracket appeared to fix the problem as the bench was no longer wobbly and the brackets were flush with the wall. 

The next morning, Mr. Parker transferred himself from his wheelchair on to the shower bench.  Approximately 10 minutes into his shower, the bench collapsed and Mr. Parker struck the floor.  Ultimately, Mr. Parker was diagnosed with compression fractures at T-7, T-8 and T-9.  Mr. Parker also alleged that as a result of the fall and his spinal injuries that he suffered more frequent and more severe pressure sores, urinary tract infections and bladder pain. 

The Parkers filed suit against Holiday Inn Express.  The hotel answered and alleged the comparative fault of D & S Builders.  D & S Builders had constructed the hotel and had installed the shower benches in the handicap rooms of the hotel.   D & S Builders was dismissed due to the four year statute of repose for negligent construction claims.  In this case, the certificate of occupancy had been issued on July 31, 2006 and suit was not filed until May of 2011. 

Following the dismissal of the builder, the hotel moved for summary judgment.  It was undisputed that D & S Builders had negligently installed the shower bench by failing to secure it to the interior wall per the manufacturer’s instructions.  The hotel had no knowledge of the defective installation because it was concealed by sheetrock and tile.   While the defect could have been discovered before the sheetrock was installed, the hotel did not perform any inspections of the shower bench during construction. Instead, the hotel relied upon the builder to properly install the shower bench.  The hotel had never received any complaints about the shower benches nor had there been any prior accidents.

Based on the undisputed facts, the trial court granted summary judgment to the hotel as it was not liable for the work of the independent contractor unless the hotel knew of and accepted the negligent work or defective materials.   The undisputed evidence was the hotel was unaware of the problem with the shower bench, and the trial court ruled the hotel had no duty to inspect at the time of construction.

On appeal, the Court of Appeals agreed with the trial court that property owners are generally not liable for the negligence of their independent contractors unless they had actual or constructive knowledge of it.   While the Court of Appeals believed the facts of the case did not establish an exception to that rule, they did believe there was an issue of whether the hotel had constructive knowledge of the dangerous condition since it had existed for more than four years.  So, the Court of Appeals reversed the trial court’s grant of summary judgment.  Both parties appealed to the Supreme Court.

The Tennessee Supreme Court was asked to determine (1) if the accepted work doctrine or the non-delegable duty to the public exceptions applied in this case and (2) if there was a genuine issue of material fact as to the hotel’s constructive knowledge. 

Under the accepted work doctrine, the landowner is responsible for the negligent or defective work of an independent contractor once the landowner accepts the work.  But, the Supreme Court quickly disposed of this argument by pointing out that doctrine had been abandoned by the Court twenty years earlier.  Tennessee now follows the more modern approach which dictates that the independent contractor remains liable for his negligent work even if the landowner accepts it.  However, the Court did leave the door open by noting that if the landowner was particularly sophisticated and the defect was patently obvious then it might rise to the level of intervening causation. 

The next issue was the non-delegable duty owed to the public exception.  The Parkers relied upon a 1907 case involving a governmental entity’s duty as it related to sidewalks.  The Supreme Court quickly distinguished the decision from the present case by pointing out that the hotel did not assume any duty a governmental entity owed to the public.

Finally, the issue of constructive notice was taken up by the Court.  After citing a litany of black letter premise liability law, the Court concluded the hotel did not have constructive knowledge of the defectively installed shower bench.  There had not been any prior complaints or accidents.  Moreover, the defect was concealed by sheetrock and was not readily apparent, and the hotel did not have a duty to inspect during construction.  In addition, both the maintenance man and the Parkers themselves felt the problem had been remedied with the tightening of the bolts based upon their visual inspection and by physically testing the bench for wobbliness.   Because the hotel had relied upon D & S Builders to properly install the shower bench and the hotel did not have actual or constructive knowledge that the builder had failed to do so, the Court reinstated the trial court’s grant of summary judgment to the hotel.

It is hard not to get angry over the result in this case. I am not referring to the hotel’s non-liability. – the fact that the Court found in favor of the hotel here is not particularly surprising.  I am referring to the fact that the builder failed to follow the manufacturer’s instructions and properly install a shower seat in a handicap room.  As a result of their failure, a man already confined to a wheelchair sustains three fractures in his spine and the builder walks off scot free because of the four year statute of repose. Anger can be properly directed at a Legislature that allows this type of get-out-of-jail free statute.

One last point.  This event took place on May 13, 2010.  The COO was issued on July 31, 2006.  The statute of repose (T.C.A. Section 28-3-203) provides that the four year repose period is extended to one year beyond the date of the injury if the injury occurs during the fourth year.  Thus, the statute of repose in this case did not expire until May 13, 2011, one year after Parker was injured.  Suit was not filed until May 11, 2011.  

So what is the point?  If you are presented with a case where a statute of repose can reasonably be expected to be placed at issue it is essential to file suit earlier and force any effort to blame a non-party potentially protected by a statute of repose as early as possible.  That is difficult to do – it is hard to predict when a non-party will be blamed.  And you can’t get clients in the door before they come in the door.  But statutes of repose are a ticking time bomb, and if someone hands you a box (a case) that may contain a ticking time bomb think carefully about opening it and, if you do, open it quickly and respond accordingly.

Or you may get blown up.

Parker v. Holiday Hospitality Franchising, Inc., E2013-00727-SC-R11-CV (Tenn Ct. App. September 12, 2014)