Day on Torts

Injury case against homeowner’s association dismissed

Where plaintiff was injured while mowing a common area of his neighborhood, but plaintiff did not have permission to mow in the common area and permission was required by the neighborhood covenants, summary judgment in favor of defendant in this premises liability case was affirmed.

In Walker v. Rivertrail Crossing Homeowner’s Association Inc., No. W2020-01201-COA-R3-CV, 2022 WL 852904 (Tenn. Ct. App. Mar. 23, 2022), plaintiff and his wife lived in the Rivertrail neighborhood and were members of the defendant homeowner’s association (HOA). Plaintiff’s home was adjacent to a common area that included a retaining wall at the edge of the neighborhood property, and plaintiff complained to a member of the HOA board that the ivy covering a portion of this common area was an eyesore. The board member told plaintiff to submit his concerns in writing to the HOA, but plaintiff failed to do so. Instead, plaintiff attempted to cut the ivy using his riding lawnmower, and when he encountered a trough that was covered by ivy and not visible, he was thrown from the mower and injured.

Plaintiff filed this premises liability suit, and defendant filed a motion for summary judgment. Defendant asserted that the neighborhood covenants stated that no changes or landscaping could be done to common areas of the property without written consent of the HOA, which plaintiff did not obtain. Defendant also argued that plaintiff could not show that it had notice of the allegedly dangerous condition. The trial court agreed that defendant had affirmatively negated the elements of duty and notice and therefore granted summary judgment, which the Court of Appeals affirmed.

A plaintiff making a premises liability claim must be able to prove the elements of negligence along with notice of the allegedly dangerous condition. In its analysis, the Court of Appeals first looked at whether plaintiff had shown that defendant had actual or constructive notice of the trough at issue in this case.

Regarding actual notice, defendant submitted as one of its Statements of Undisputed Material Facts that “Rivertrail HOA was unaware that the ground was not level in the common area alongside the retaining wall adjacent to [plaintiff’s] property,” and plaintiff responded to this statement by simply writing “Disputed.” The Court ruled that this response was insufficient and that the statement was thus admitted, explaining:

Rule 56.03 of the Tennessee Rules of Civil Procedure requires that ‘each disputed fact…be supported by specific citation to the record,’ yet [plaintiffs] cited no facts in the record to support their response. A party ‘may not rest upon the mere allegations or denials of the adverse party’s pleading, but his or her response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. … Any fact not specifically disputed with citations to the record to support the alleged dispute may be deemed admitted. By merely replying that fact 18 was disputed, [plaintiffs] failed to comply with Rules 56.03 and 56.06. …[Plaintiffs’] bare assertion that fact 18 was ‘disputed’ is insufficient to create a dispute of material fact.

(internal citations and quotations omitted). Accordingly, the Court ruled that the fact was admitted and defendant could not “be charged with actual notice.”

The Court also found that there was no genuine issue of fact regarding constructive notice. Constructive notice can be “established by showing that a dangerous or defective condition existed for such a length of time that a property owner, in the exercise of reasonable care, should have become aware of it.” (internal citation omitted). While plaintiff submitted an affidavit from a landscape contractor who “opined that the erosion likely would have been apparent to any person maintaining the ivy in the common area,” the contractor did not provide any testimony regarding how long the trough may have been present, and there were no other facts in the record regarding timing. Because there was “a complete absence of proof as to when and how the dangerous condition came about,” defendant had “effectively negated the element of constructive notice” (internal citation omitted).

The Court next analyzed the element of duty, agreeing with the trial court that defendant did not have a duty under the facts of this case. “[T]he law will not impose a duty on property owners and businesses to use care to maintain places where it is not reasonably foreseeable that customers or the public will be present.” (internal citation omitted). Here, the neighborhood covenants required that an owner get written authorization before “clearing, digging, planting, or alteration of any kind” in a common area. Because plaintiff did not seek such authorization, it was not foreseeable that he would mow in the area in which he was injured.

Plaintiff made two arguments as to why this analysis did not apply. First, he argued that the written authorization portion of the covenant only applied to landscaped areas, but the Court rejected this assertion. Second, he argued that permission was to be sought from the architectural committee, and since that committee did not exist, there was “no mechanism for a homeowner to obtain the required approval.” The Court found this argument “disingenuous,” noting that while the architectural committee was listed, the covenants made clear that approval came from and was required by the HOA. Because plaintiff did not seek or obtain written approval, the Court ruled that “it was not foreseeable that [plaintiff] would be in the area where his injuries occurred,” and that defendant thus owed no duty of care. Summary judgment was therefore affirmed.

This case is instructive in both the necessary elements to prove a premises liability case, as well as how to sufficiently respond to an opposing party’s statement of undisputed facts. Plaintiff’s failure to properly respond under the Rules, coupled with his lack of evidence supporting the elements of notice and duty, was fatal to his case.

This opinion was released 4.5 months after oral arguments in this case.

Note:  Chapter 89, Sections 1 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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