No Negligence in Porch Collapse During Party

In Keane v. Campbell, No. M2016-00367-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2017), the Tennessee Court of Appeals affirmed summary judgment for defendants in a negligence case revolving around the collapse of a deck.

Plaintiff was teenager who attended a party at defendants’ home. The party was for high school students, and between 40 and 70 kids attended. During the party, the kids were “dancing and jumping on an elevated, wooden deck attached to Defendants’ house” when the deck collapsed suddenly, and plaintiff fell and was injured. Within one year of plaintiff turning 18, she and her parents filed a negligence suit against defendants, asserting that “Defendants: (1) failed to properly and adequately monitor or supervise the children attending the party; (2) failed to warn the children of the danger they were facing; (3) failed to take any action to prevent the collapse of the deck; (4) failed to prevent the injury to the children; and (5) failed to observe what they could have observed in the exercise of reasonable care regarding the flexing of the deck.”

Defendants moved for summary judgment, which the trial court granted, holding that there was no duty owed to plaintiff because the collapse of the deck was not foreseeable. The Court of Appeals affirmed this ruling.

In a negligence action, the first element a plaintiff must prove is duty. Without the existence of a duty, a negligence action must fail. The concept of foreseeability is closely intertwined with the element of duty:

A plaintiff is required to prove that the injury was a reasonably foreseeable probability and that some action within the defendant’s power more probably than not would have prevented the injury. Foreseeability is thus linked with probability—the possibility of injury cannot be remote. The fact that an injury might be conceivable is not sufficient to create a duty.

(internal citations and quotation omitted).

In support of their motion for summary judgment, defendants presented evidence that they had hosted parties for as many as 200 guests on the deck; that hosting parties was a “regular use of the porch;” that the deck had passed codes inspection; that the deck had been inspected “by local and federal government as part of security precautions for political events that took place” on it; and that no problems with the deck had ever been noted. Further, defendant wife testified that for 10 minutes before the deck fell, she had her foot on the threshold of the deck and did not feel shaking or see any “flexing.”

Plaintiffs, on the other hand, offered testimony from another guest who was attending the party. He testified that he “had a premonition that something was going to happen because there was a ridiculous amount of people on the deck and it was going up and down as people were jumping/dancing,” that he “imagined the deck falling because the deck continued going up and down as people were jumping/dancing and the deck looked overloaded and old,” and that he went inside to get off the deck before the collapse because of his premonition.

Considering the evidence presented by both sides, the Court held that defendants’ undisputed evidence “established that they exercised reasonable care and had no notice of any problems with the deck,” thus shifting the burden of production to plaintiffs to “demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find” in their favor. The Court found that plaintiffs did not meet this burden, and that “the incident was not reasonable foreseeable” and that no duty existed. Dismissal was thus affirmed.

In this case, plaintiffs appeared to simply not have enough evidence to defeat the summary judgment motion. Defendants presented undisputed facts about the deck having no previous problems. Plaintiffs responded with the testimony of just one party attendee who talked about his premonitions and imagination. Considering the number of guests at the party, plaintiffs would have had a much stronger case if they had found more guests willing to testify in more concrete terms. Their failure to develop additional evidence here proved fatal to their claim.

This is not to suggest that the evidence existed but was not appropriately gathered.  Instead, the point for plaintiff’s lawyers is that one should attempt to gather and weigh available evidence on the elements of the cause of action as part of the decision to accept or reject a case.  This is admittedly hard to do – some evidence will be in the sole possession of the defendant and cannot be determined pre-suit – but it should be a part of the process of case acceptance.