Day on Torts
Where plaintiff set up his own ladders on cardboard at defendant’s home, and defendant had no control over the set-up, summary judgment for defendant was affirmed on plaintiff’s premises liability claim arising from injuries sustained when the ladders slipped.
In Fulghum v. Notestine, No. M2022-00420-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2023), plaintiff and defendant were close friends. Plaintiff was a carpenter, defendant was a truck driver who was knowledgeable about car repairs, and plaintiff and defendant would often help each other with projects using their own expertise.
Defendant was remodeling his home, and plaintiff was installing shiplap around defendant’s fireplace. On the day of the injury, plaintiff let himself into defendant’s house, set up two of his own ladders, and decided to put cardboard under the ladders to protect defendant’s new floors. Plaintiff set up the two ladders next to each other on the cardboard in an attempt to work more efficiently. Defendant did not assist with or direct the set up. At some point while plaintiff was working, defendant arrived home and briefly chatted with plaintiff. Sometime thereafter, the ladders slipped, causing plaintiff to fall, and plaintiff was seriously injured.
Plaintiff filed this suit against defendant, which the trial court deemed a premises liability case. The trial court granted defendant summary judgment based on defendant having no duty to plaintiff and plaintiff’s own comparative fault. Although there was much argument at the trial court level about whether plaintiff was a statutory employee, which would affect whether defendant could rely on the defense of comparative fault, the Court of Appeals ultimately affirmed summary judgment based solely on the lack of a duty to warn.
After noting that a premises liability claim can arise where a property owner did not create the dangerous condition but nonetheless had a duty to warn, the Court explained that such a duty did not apply to these facts. Here, plaintiff himself created the dangerous condition when he set up his own ladders atop cardboard pieces. The Court wrote:
A review of Tennessee premise liability cases shows the dangerous condition has been created (1) by the property owner, operator, or their agent, (2) by third-parties, or (3) by nature itself. None of those creators of the dangerous condition are the source of the danger in the present case. Nor is this a case in which some underlying defect existed in the property, such as the floor, that contributed to the injury or in which the property owner took any affirmative action that contributed to creating the danger. To the contrary, [plaintiff] wholly created the dangerous condition that caused his injury. Furthermore, not only did [plaintiff]create the dangerous condition, he also had superior knowledge over [defendant] as to the condition that had been created and the dangerousness thereof.
We have not uncovered nor have we been directed by [plaintiff] to any successfully maintained premises liability case in Tennessee or any other jurisdiction in which a plaintiff is wholly responsible for the creation of the dangerous condition that resulted in his or her injury and had superior knowledge as to the dangerousness of the condition over the property owner. This is unsurprising given that, as noted by the Tennessee Supreme Court, ‘[l]iability in premises liability cases stems from superior knowledge of the condition of the premises.’ Courts have rejected premises liability claims where the plaintiff is the one that creates the dangerous condition and has knowledge thereof.
(internal citations omitted).
Based on this reasoning, the Court affirmed summary judgment and held that “a premises owner has no duty to warn as to a dangerous condition wholly created by a plaintiff, where neither the condition of the property itself nor an affirmative act of the property owner himself contributes to creating the danger, and where the plaintiff has superior knowledge in comparison to the property owner.”
The facts of this case were simply not on plaintiff’s side. The evidence showed that he alone set up his own ladders in a design of his own making, and he had no evidence showing that defendant even knew that the ladders were set up in a dangerous way.
This opinion was released 6.5 months after oral arguments in this case.
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