No negligence per se where tenant had co-extensive knowledge of dangerous condition.

Where plaintiff was an employee of the company that leased a building, and she brought a negligence and negligence per se claim against the owner of the building after she fell off a staircase that allegedly was not up to code, summary judgment for the building owner was affirmed; plaintiff, plaintiff’s employer, and defendant landlord had co-extensive knowledge of the allegedly dangerous condition.

In Lewis v. Fletcher, No. W2022-00939-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2023), plaintiff was going down a set of stairs at the entrance of the building leased by her employer when she fell off the stairs and was injured. The stairs had a handrail on only one side.

Plaintiff filed a complaint asserting negligence and negligence per se against the building owners, who were not the original builders of the property. The trial court granted summary judgment to defendant building owners “based on the rule of non-liability of a landlord to its tenant or third parties when the landlord and tenant have coextensive knowledge of the condition of the property[.]” (internal citation omitted). On appeal, summary judgment was affirmed.

The Court of Appeals began its analysis by citing the general rule that “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). Plaintiff in this case did not dispute the trial court’s finding that plaintiff, defendant, and plaintiff’s employer all had co-extensive knowledge of the fact that the stairway had only one handrail, and she thus did not appeal summary judgment of her common-law negligence claim. Plaintiff argued, though, that “the co-extensive knowledge rule…does not apply to her negligence per se claim and that there is an exception to the rule of nonliability of a landlord to its tenants and third parties for negligence per se claims.”

Plaintiff argued that the staircase did not meet the building code standard that was in place when the building was constructed, and that defendant building owners were thus liable for negligence per se. Plaintiff cited a 1992 case that held a landlord liable for negligence per se based on a landlord’s “constructive knowledge of the duty to inspect the premises as the housing code imposed a duty on a landlord not to lease a building until it complied with the requirements of the housing code.” (internal citation omitted).

The Court of Appeals, however, distinguished the present case from the case cited by plaintiff. While the housing code in the 1992 case imposed a duty on the landlord, plaintiff in this case “simply cited a section of the building code without establishing that it imposed a duty on [defendant].” Because plaintiff did not “point to any similar building code provision that imposes a duty on a subsequent owner of a commercial building to inspect the building and bring it in compliance with the code before leasing it to a tenant,” summary judgment was affirmed.

This opinion was released 2.5 months after oral arguments in this case.

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