Day on Torts

Premises liability summary judgment affirmed based on lack of constructive notice.

Where premises liability plaintiffs could not show that defendant church, who was renting the property to another church, had constructive notice of a downed power line on the property that had most likely been down for approximately 26 hours, summary judgment was affirmed.

In Kelly v. Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church, No. M2019-02238-COA-R3-CV, 2022 WL 202639 (Tenn. Ct. App. Jan. 24, 2022), plaintiffs were the parents of a minor child who was severely injured when he was playing on property owned by defendant church and he came into contact with a downed power line. Defendant church owned a tract of property that included four buildings. Defendant leased two of the buildings, the sanctuary and the fellowship hall, to St. Mary Church, who used the buildings and took on responsibilities for the buildings, including minor maintenance and paying the electric bill. Defendant was responsible for mowing the grass between the fellowship hall and sanctuary, and it paid a service to perform this work.

On the day of the incident, the minor child had come to the property with his mother for a bible study. When they arrived, they saw that the power was out in the fellowship hall, but the mother taught the class using window light. During two class breaks, the children, including plaintiff’s child, played in the mowed, grassy area between the fellowship hall and sanctuary. After the bible study, plaintiff’s child returned to the same area to play, but he came into contact with a downed power line owned by Nashville Electric Service. The child suffered severe burns and had to have his right hand and forearm amputated.

Plaintiffs brought suit against several defendants, but only defendant church (the property owner) was at issue in this appeal. The trial court had granted defendant summary judgment, ruling that defendant did not create the dangerous condition and that plaintiff could not prove constructive notice, and the Court of Appeals affirmed.

In a premises liability case, a plaintiff must prove the elements of negligence and that defendant either created the dangerous condition or had actual or constructive notice of the dangerous condition. (internal citation omitted). The issue in this case was whether plaintiffs could show that defendant had constructive notice of the downed power line. Constructive notice may be shown in two ways: a plaintiff can “(1) prove that a dangerous condition existed for such a length of time that a reasonably prudent property owner should have been aware of the dangerous condition’s existence or (2) prove that the dangerous condition resulted from a pattern of conduct, a recurring incident, or a general or continuing condition.” (internal citation and quotation omitted).

In response to defendant’s summary judgment motion, plaintiff offered expert testimony that the power line most likely fell during a storm that occurred 26 hours before the incident. Plaintiff asserted that “surely at least 26 hours is more than enough time for constructive notice, but at the very least, this issue should be submitted to the jury.” The Court of Appeals, however, disagreed. The Court stated that a “[g]enerally, a jury must decide whether a dangerous condition existed long enough that a reasonably prudent property owner should have been aware of it,” but that time is not the only consideration. (internal citation omitted). “In addition to the time element, constructive notice requires some material competent evidence from which it can be logically inferred that the defendant, by the exercise of ordinary care, would have or should have discovered the dangerous condition.” (internal citation omitted).

Considering the facts in this case, the Court explained that the only involvement defendant had with the fellowship hall and sanctuary was that it paid the water bill and had agreed to take care of large maintenance needs. While defendant paid for the lawn service that mowed the grassy area where the child was injured, “nothing indicate[d] that [defendant] would have or should have discovered the downed power line prior to the accident.” The buildings still used by defendant were separated from the grassy area, and the evidence did not show that defendant “exercised any control over the grassy area where the accident occurred.” Further, members of St. Mary Church were the ones who discovered the power outage, and no one alerted anyone from defendant church of the outage before the accident.

Based on these facts, the Court agreed that plaintiff “presented no evidence from which it could be logically inferred that [defendant], by the exercise of ordinary care, would have or should have discovered the downed power line prior to the accident.” Summary judgment was thus affirmed.

Being able to show actual or constructive notice of the allegedly dangerous condition is a critical element of a premises liability claim. Here, even with evidence of how long the condition had existed, plaintiffs did not have sufficient evidence to show that defendant reasonably should have known about the downed power line.

This opinion was released three months after oral arguments.

Note: Chapter 89, Sections 4 and 10 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.

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