Scaffolding rental company owed no duty to roofer where homeowner opted to install scaffolding himself.

Where a roofer was injured when he fell from a homeowner’s roof and bounced over the nearby scaffolding, but the homeowner had rented the scaffolding himself and chosen to erect it himself rather than paying the scaffolding company to install it, summary judgment for the scaffolding company on both the premises liability and general negligence claims was affirmed because the scaffolding company owed no duty to either the roofer or the homeowner.

In Lynch v. Poe, No. M2021-00867-COA-R3-CV, 2022 WL 4112706 (Tenn. Ct. App. Sept. 9, 2022), plaintiff was a roofer who was injured while working on a homeowner’s roof. While replacing shingles on the roof, plaintiff slipped and fell, bounced over the scaffolding, and fell to the ground. According to plaintiff, he was unable to stop himself on the scaffolding because guardrails had not been installed thereon.

The homeowner who had hired the roofing company had entered into a separate contract with DSS, an equipment company, and rented scaffolding from them. Although DSS offered scaffolding installation for a fee, the homeowner chose to install the scaffolding himself. While the homeowner had some experience with smaller projects, he admitted that this “scaffolding project was more involved than any project he had undertaken.” Although DSS employees visited the home a few times to bring scaffolding pieces and one DSS employee warned against using cinder blocks to level the scaffolding based on what he observed at the home, “at no point did [the homeowner] request or indicate to DSS that he would like an inspection of the scaffolding he had installed or that he would like to purchase the scaffolding installation service.”

Plaintiff initially filed suit against the homeowner, who then asserted comparative fault against DSS. Plaintiff then amended his complaint to assert claims against DSS as well. After discovery, DSS filed a motion for summary judgment, which the trial court granted. The trial court ruled that plaintiff had asserted a premises liability claim, and that “DSS did not owe Plaintiff a duty of care under premises liability.” Further, the trial court also found that “even if it were to view Plaintiffs’ claims as a simple negligence claim, DSS still did not owe a duty to Plaintiff or [the homeowner].” Summary judgment for DSS was affirmed on appeal.

In a brief analysis, the Court of Appeals first considered plaintiff’s premises liability theory. A premises liability plaintiff must prove the elements of the tort, but must also “first prove that a dangerous or defective condition existed on the owner’s property” and must show that the defendant either created the dangerous condition or had actual or constructive notice of the condition. (internal citations and quotations omitted). The Court explained:

In this case, it is undisputed that DSS did not own or operate the property. Further, DSS did not control any portion of the premises where the accident occurred. Thus, the requisite ownership and control elements of a premises liability claim are missing. Moreover, there is no evidence that DSS had actual or constructive notice that the horizontal bars or safety rails at the top of the scaffolding had not been installed correctly or that they were missing. Thus, neither Plaintiffs nor [homeowner] are able to prove an essential element of a premises liability claim against DSS.

(internal citations omitted). Summary judgment on the premises liability claim was thus affirmed.

Looking at the general negligence claim, the Court considered and rejected plaintiff’s argument that “DSS gratuitously undertook the duty to ensure that [the homeowner] installed the scaffolding correctly” and thus assumed a duty here. The Court explained that “a duty can only be imposed to the extent actually assumed by the defendant,” and that the facts of this case did not support a finding that DSS assumed any duty. (internal citation omitted).

Here, the undisputed facts demonstrate that DSS never undertook to install or supervise the installation of the scaffolding at [the homeowner’s] residence. First, and significantly, it is undisputed that DSS offered a scaffolding installation service for an additional fee, but that [homeowner] declined the service out of fear that DSS might damage the home and believing that he had the skill and experience to do it himself. Thus, it is undisputed that [homeowner] assumed the responsibility to install the scaffolding himself. It is also undisputed that no DSS employee physically installed any of the scaffolding on [the] property prior to [plaintiff’s] fall. Moreover, it is undisputed that any questions [homeowner] asked DSS were limited to questions about what specific parts were for and where they should go rather than questions about the proper means by which to install the entire scaffolding system.

Based on these facts, the Court agreed that “DSS never gratuitously undertook a duty to install or to supervise the installation of the scaffolding or to ensure that the missing guardrail bars were properly installed. Summary judgment was therefore affirmed.

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

Note:  Chapter 89, Section 1 and Chapter 30, Section 4 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

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