Premises Liability - Can a landlord be liable for injury to a third-person by a dog owned by a tenant?

Brief Summary:  A landlord can be liable for injuries to a third-person by a dog owned by their tenant if (1) the landlord has knowledge of the vicious propensity of the dog, and (2) the landlord had “sufficient retained control” over the leased premises to require removal or safe restraint of the dog.

Analysis:  The recent Tennessee Court of Appeals decision of George Woodson and Flora Woodson v. MEG Capital Management, Inc., et al, No. 2011-02513-COA-R3-CV, 2012 WL 4335316 (Tenn. Ct. App. September 21, 2012) discussed the potential liability of a landlord for a dog attack.  The situation in question involved an attack involving the landlord's property that was rented to the tenant.  Woodson at 1.  The plaintiff walked by the property when two pit-bull dogs owned by the tenant escaped from the fenced-in back yard and attacked the plaintiff.  Woodson at 1.  He sustained significant injuries and over $200,000.00 in medical bills.  Woodson at 1.  The question in this case was whether the landlord could be found responsible for the attack under these circumstances.

The Tennessee Court of Appeals found a landlord could be liable for an attack caused by their tenant's dog under certain circumstances.  The court specifically found as follows:

To hold a landlord liable for injury to a third person by a dog owned and kept by a tenant, two prongs must be proven with respect to the landlord: (1) knowledge or notice of the vicious propensity of the dog, and (2) sufficient retained control over the leased premises to afford an opportunity for the landlord to require the tenant to remove the dog or safely restrain it.

Woodson at 2....

Damages - Can a plaintiff recover damages for loss of use and loss of profits when a commercial vehicle is destroyed and a replacement can not be put back into service within a reasonable time period?

Analysis:  The Tennessee Court of Appeals in DKB Trucking Company, LLC v. JNJ Express, Inc., No. M2012-00008-COA-R3-CV, 2012 WL 3866462 (Tenn. Ct. App. September 5, 2012) discussed the appropriate damages for the loss of a tractor and trailer when the replacement could not be put into service quickly (the principles in this case could apply to other commercial vehicles as well).  In this case the plaintiff's tractor and trailer were completely destroyed in a collision caused by the defendants. DKB Trucking at 1.  The plaintiff's tractor and trailer were licensed by the federal government and the Commonwealth of Virginia to haul hazardous materials.  DKB Trucking at 1.  Proof at trial established the value of the tractor and trailer was approximately $45,000.00.  DKB Trucking at 1.  Proof also showed that the plaintiff replaced the trailer but did not replace the tractor even though there were four similar tractors available that could replace the destroyed tractor.  DKB Trucking at 1. 

The hauling of hazardous materials is heavily regulated and each of the DKB tractors were required to have proper licensure, permits and placards.  DKB Trucking at 1.  The process of obtaining these documents can take up to three months.  DKB Trucking at 1.  DKB also provided testimony that the average revenue earned by the truck that was destroyed was $3,700.00 per week.  DKB Trucking at 1. 

The jury found the defendant liable for the value of the tractor and trailer and awarded damages of $45,000.00.  DKB Trucking at 1.  The jury also awarded the plaintiff $44,000.00 for loss of use and lost profits due to the destruction of the truck.  DKB Trucking at 1.  The trial court disagreed with the verdict and issued a directed verdict finding the plaintiff could not recover for the loss of use or loss of profits in this case.  That issue was appealed. 

Settlement Agreement - What language in a settlement agreement is necessary to make sure all claims are settled?

Analysis:  The recent Tennessee Court of Appeals decision of Timothy Scott Marcum v. Haskel Ayers, No. E2012-00721-COA-R3-CV, 2012 WL 4859126 (Tenn.Ct.App. October 15, 2012) discussed a basic settlement agreement between two parties and the validity of the agreement.  The plaintiffs and defendants entered into a contract of sale for property in 2005.  Marcum at 1.  The real estate purchase contract consisted of an agreement that the property was sold by the defendants to the plaintiffs on an "as is" basis.  Marcum at 1.  After the purchase the plaintiffs began to experience problems with the house and raised concerns about these problems with the defendants.  Marcum at 1.  In June 2006, the parties executed a "settlement letter" which provided as follows: "The fifty-two hundred dollars ($5200) [sic] is accepted, in full, for damages to Mountain Ayers. This will be the final settlement paid on this property." 

Sometime after the execution of the settlement agreement the plaintiffs experienced further problems and therefore sued the defendants.  Marcum at 1.  The defendants asserted that the June 2006 settlement letter was a settlement of all claims.  Marcum at 1.  The trial court granted summary judgment for the defendants and found the settlement letter was “not ambiguous and constituted a full and complete release of any and all claims growing out of the sale of Defendants' residence to Plaintiffs, whether past, present or future.”  Marcum at 1.  The plaintiff’s appealed and the question on appeal was whether the basic broad language in the "settlement agreement" prevented the plaintiff from filing suit for later discovered damages. 

The Tennessee Court of Appeals found the language in this settlement agreement was a complete release of all claims including future undiscovered claims.  The court found that a settlement letter with a release is considered a contract and therefore standard rules of construction for interpreting a contract are used in construing a release. 

Premises Liability – The "open and obvious" defense in the context of a “minor aberration” in the walking surface

Analysis:  The Tennessee Court of Appeals recently addressed the “open and obvious” defense in a premises liability case.  In Jacqueline Elaine Green v. Paul Roberts, No. M2012-00214-COA-R3-CV, 2012 WL 4858992 (Tenn. Ct. App. 2012) the Court dealt with some interesting facts.  The plaintiff walked through the defendant's parking lot to meet her cousin who parked her car in the parking lot. Green at 1.  She walked across the lot to meet her cousin without any incident.  Green at 1.  As she left the meeting, she took a step backwards and tripped over a small metal post that protruded from the parking lot.  Green at 1.  The plaintiff's heel caught on the 8 inch by 8 inch metal post that protruded about ¾ of an inch above the surface of the parking lot.  Green at 1.  The parking lot asphalt is black and the concrete around the post is a lighter color. Green at 1.  She tore her Achilles tendon and filed a lawsuit against the premises owner. 

The trial court granted summary judgment because it found the plaintiff was 50% or greater at fault.  Green at 2.  That ruling was appealed to the Tennessee Court of Appeals.  The Court noted that “traditionally, liability has not been imposed on a premises owner by courts of this state for injuries that resulted from defective or dangerous conditions that were ‘open and obvious.’”  Green at 5. (citing McCormick v. Waters, 594 S.W.2d 385 (Tenn. 1980)).  The Court further noted that since the adoption of comparative fault in Tennessee by McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), the “open and obvious” defense has been handled under principles of comparative fault. Green at 5.  Specifically, “when an invitee is injured because of dangers that are obvious, reasonably apparent, or as well known to the injured party as to the owner or operator of the premises, liability, if any, should be determined in accordance with the principles of comparative fault analysis and the general negligence law of this state.” Green at 5.