The opinion
09/09/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 5, 2022 Session
DAVID LYNCH, SR. ET AL. v. BRADLEY E. POE ET AL.
Appeal from the Circuit Court for Davidson County
No. 18C2563 Kelvin D. Jones, Judge
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No. M2021-00867-COA-R3-CV
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This is a multi-party premises liability and general negligence action among a roofer who
fell from the homeowner’s roof, the homeowner who erected the scaffolding at issue, and
the scaffolding company that rented the scaffolding to the homeowner, but did not erect
the scaffolding. The complaint alleged that the roofer slipped and fell on the roof and then
bounced over to the scaffolding before falling to the ground. The complaint also alleged
that had a safety rail been installed on the scaffolding it could have prevented the roofer’s
fall. The homeowner filed an answer denying liability and alleging comparative fault
against the scaffolding company. Consequently, the roofer filed an amended complaint
adding the scaffolding company as a codefendant. After discovery, the scaffolding
company filed a motion for summary judgment, alleging that it owed no duty to the roofer
or the homeowner because it had no control over the premises nor actual or constructive
notice of a dangerous condition on the premises. The roofer and homeowner opposed the
motion contending, inter alia, that this is a case of general negligence against the
scaffolding company because the homeowner relied on the scaffolding company for
guidance during the installation process and the scaffolding company assumed the duty of
care to ensure the scaffold was installed safely. They also contend that summary judgment
was not appropriate because material facts are in dispute. The trial court summarily
dismissed all claims against the scaffolding company, and this appeal followed. We find
that the material facts are not in dispute and that the scaffolding company was entitled to
summary judgment as a matter of law on claims sounding in premises liability and general
negligence. Thus, we affirm the summary dismissal of all claims against the scaffolding
company.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Owen R. Lipscomb, Brentwood, Tennessee, for the appellant, Bradley E. Poe.
Brian Dunigan, Goodlettsville, Tennessee, for the appellants, David Lynch and Gaila
Lynch.
Bruce D. Gill, Darren R. Smith, and Laura E. Bassett, Nashville, Tennessee, for the
appellee, Contractors Access Equipment Jackson, Inc.
OPINION
FACTS AND PROCEDURAL HISTORY
Bradley E. Poe (“Mr. Poe”) owns a two-story home located at 2509 Belmont
Boulevard in Nashville, Tennessee. On July 11, 2017, Mr. Poe hired a roofing contractor,
H.E. Parmer Company, Inc., (“H.E. Parmer”) to repair/replace the clay tile roof and copper
gutter system of his home. Contrary to customary practices, Mr. Poe insisted that he, not
Parmer, would be responsible for installing the scaffolding around his house because he
was concerned that other scaffold installers may damage the exterior of his house.
Therefore, Mr. Poe, not Parmer, was responsible for installing a scaffold system with a
workable platform at eave height for use by H.E. Parmer’s crew.
To accomplish this, Mr. Poe entered into a separate contract with Contractors
Access Equipment Jackson, Inc., a.k.a. Direct Scaffold Services (“DSS”) to rent a frame
and brace scaffold system. While DSS offered an installation service for an additional cost,
Mr. Poe declined that service, choosing to install the scaffold system himself. As Mr. Poe
later explained in his deposition, he decided to erect the scaffolding himself because it
would be done right, it would be safe, and nothing on his house would get torn up.
According to Mr. Poe, he had worked as a contractor and had experience assembling
scaffolding for a “few small projects he had done alone.” However, Mr. Poe later admitted
that this scaffolding project was more involved than any project he had undertaken. He also
admitted that he did not have any safety training on scaffold assembly. As a result, Mr. Poe
occasionally called DSS for guidance regarding what certain pieces of the scaffolding were
for and where to place them. However, at no point did Mr. Poe 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.
DSS Sales Manager, Jeffrey Ferrell, visited the Poe residence on one or two
occasions. During one visit, Mr. Ferrell noticed that Mr. Poe had placed the scaffold on a
sloped surface using cinder blocks rather than leveling jacks, at which point Mr. Ferrell
advised Mr. Poe on using leveling jacks. Mr. Ferrell also stated that he responded to a few
questions Mr. Poe asked, but he did not offer installation advice or supervision. Other DSS
employees also visited the site but only to deliver additional pieces of scaffolding when
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requested by Mr. Poe. Further, DSS insists that its employees never assembled or installed
any of the scaffolding at Mr. Poe’s residence, and there is no evidence to the contrary.
On November 29, 2017, David Lynch, a roofer working for H.E. Parmer, slipped
and fell off of Mr. Poe’s roof. According to Mr. Lynch, when he fell he first hit the roof
then bounced over the scaffold, landing on the ground where he suffered “catastrophic
injuries” as a result. As Mr. Lynch explained, he was unable to grab onto the scaffold to
prevent his fall.
Mr. Ferrell reviewed post-accident photos of the portion of the scaffold where Mr.
Lynch fell. Upon review of the photos, Mr. Ferrell stated that the scaffold had not been
safely built because it should have had guardrail posts at a height of at least 21 to 42 inches,
but they were missing.
Mr. Poe blamed H.E. Parmer employees for the missing guardrail posts. As he
explained it, after he installed the guardrails, Parmer employees would remove sections of
the guardrails in order to use a ladder to access the roof, after which Mr. Poe would have
to reinstall those sections.
However, Mr. Ferrell stated that any problem with the guardrail posts were not a
result of Mr. Lynch or his co-workers. Instead, Mr. Ferrell was of the opinion that the
guardrail posts had never been installed. Even if H.E. Parmer employees had removed
sections for access, Mr. Ferrell explained, “there would be no reason to remove all of the
posts.” As he explained, the post-accident photos showed the sections of guardrail and
cross braces that had not been installed were leaning against the base of the scaffolding
posts.
Mr. Lynch contends that had there been a guardrail where he fell, he would have
been able to grab onto it to prevent his fall. Mr. Ferrell also agreed that the guardrail posts
would have stopped the fall. Mr. Lynch did not recall removing any of the guardrail
sections in order to use a ladder. For his part, Mr. Poe stated that he did not know whether
DSS had knowledge regarding the removed guardrails, and could not recall the last time
anyone from DSS had been at the residence prior to the incident.
OHSA subsequently inspected the site and fined H.E. Parmer after it determined
that the scaffold was not compliant with OSHA regulations. After Mr. Poe was notified of
the OSHA problems, he retained DSS to install the scaffolding to make it compliant with
OSHA regulations, which DSS did.
Mr. Lynch and his wife Gaila (collectively “Plaintiffs”) brought suit against Mr. Poe
alleging that Mr. Poe acted negligently when he installed the scaffolding and that this
negligence resulted in his fall. In response, Mr. Poe filed an answer in which he alleged
comparative fault against DSS as follows:
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Mr. Poe affirmatively asserts that the doctrine and law of comparative fault
as adopted in the State of Tennessee applies to the facts of this case. He
denies negligence, fault or liability. To the extent the trier of fact concludes
to the contrary, Mr. Poe asserts that the fault of Direct Scaffold Services, the
entity from who he rented said scaffolding should be compared with that
which he is found to have and his liability reduced thereby. Mr. Poe asserts
that he relied upon Direct Scaffold Services to provide sufficient materials
and guidance for him to erect a scaffold sufficient and proper for the work
engaged in by H.E. Parmer Co., and he relied upon it to direct him as to the
proper installation and setup of said scaffolding.
Plaintiffs responded by filing an amended complaint to add DSS as a defendant. The
amended complaint was largely identical to the original complaint, but included one
additional allegation:
To the extent that Defendant Bradley E. Poe meets his burden of proof in
establishing this affirmative defense and shows that Defendant Contractors
Access Equipment Jackson, Inc. a.k.a. Direct Scaffold Services is at fault,
the Plaintiffs assert this fault was a direct and proximate cause of their
injuries and damages and asks that judgement be entered against Defendant
Contractors Access Equipment Jackson, Inc. a.k.a. Direct Scaffold Services
for all general and special damages described in this Amended Complaint.
To the extent necessary, this paragraph should be regarded as an alternative
pleading for relief against Defendant Contractors Access Equipment
Jackson, Inc. a.k.a. Direct Scaffold Services.
DSS filed a timely answer denying any liability to Plaintiffs or Mr. Poe.1
Following discovery, DSS filed a motion for summary judgment in which it
contended “that Plaintiffs’ claims should be dismissed because Plaintiffs’ evidence is
insufficient to establish that [DSS] owed a duty to Plaintiffs because [DSS] was not in
control of the premises upon which Plaintiff David Lynch was injured and furthermore,
[DSS] had no actual or constructive knowledge of a dangerous condition on the premises.”
In support of their motion, DSS relied upon the statement of material facts filed in
support of its motion, the deposition of Plaintiff David Lynch, the deposition of Defendant
Bradley Poe, Bradley Poe’s responses to DSS’s requests for admission, DSS’s responses
1
Although it is not a party to this appeal, for completeness we note that Bridgefield Casualty
Insurance Company was granted permission to intervene in this matter to recover workers’ compensation
benefits paid to Mr. Lynch as a result of his work-related injury while an employee of H.E. Parmer.
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to Plaintiffs’ first request for production, and Bradley Poe’s responses to DSS’s
interrogatories. Plaintiffs and Mr. Poe each filed responses in opposition to the motion.
In pertinent part, DSS asserted that
Plaintiffs’ claims should be dismissed because Plaintiffs’ evidence is
insufficient to establish that [DSS] owed a duty to Plaintiffs because [DSS]
was not in control of the premises upon which Plaintiff David Lynch was
injured and furthermore, [DSS] had no actual or constructive knowledge of
a dangerous condition on the premises.
Plaintiffs and Mr. Poe opposed the motion. For their part, Plaintiffs opposed the
motion on the following grounds:
DSS’s theory is fundamentally flawed . . . because this is a case of general
negligence, not simple premises liability. Specifically, the Plaintiff was
injured because scaffolding at the subject work site had been assembled
negligently with no guardrail to keep him from falling to the ground.
Defendant Bradley Poe assembled the scaffolding, but there is extensive
material evidence to show that he relied on DSS for guidance during the
assembly process. When DSS undertook to advise Poe about how to build
the scaffold, it assumed the duty to exercise reasonable care and ensure the
scaffold was assembled safely. There is a question of fact regarding whether
DSS breached that duty, and therefore, summary judgment is inappropriate.
For his part, Mr. Poe contended that summary judgment was not appropriate
because “there exist disputed facts for a jury to decide whether [DSS] did by its actions
assumed a duty of care.” Mr. Poe further contended in his response in opposition to the
motion:
The disputed facts here prevent the Court from deciding the issue as a matter
of law. In this case, [DSS] assumed a duty of care toward Mr. Lynch by
assisting Mr. Poe with the selection and installation of various pieces of the
scaffolding on the west side of his house where Mr. Lynch fell. [DSS] is
being paid. It is paid to rent the scaffold to Mr. Poe. And though Mr. Poe is
erecting the scaffolding himself, he indicates in multiple places in his
deposition that he relied upon DSS for the placement of scaffolding pieces.
The trial court found that Plaintiffs had alleged a premises liability claim, and that
DSS did not owe Plaintiff a duty of care under premises liability, stating:
In determining the true nature of the claims alleged, Tennessee courts focus
on the gravamen of a plaintiff’s complaint. After a review of the second
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amended complaint, this Court finds the circumstances allege a premises
liability claim.
. . .
In this case, it is undisputed that Mr. Poe is the owner of the Premises where
Plaintiff was injured. It is undisputed that Mr. Poe installed the scaffolding
on his property. It is undisputed that if Mr. Poe noticed a safety rail missing
from the scaffold, he would reinstall them himself. It is further undisputed
that DSS did not physically assemble the scaffold on Mr. Poe[̓s] property
prior to Plaintiff’s fall on November 29, 2017. This Court finds Mr. Poe
cannot present prima facie evidence to show that DSS owed a duty of care to
Plaintiff. The Court finds DSS is entitled to summary judgment because there
is no evidence DSS that controlled Mr. Poe’s property or the scaffolding on
the Premises.
When the liability of a premise’s owner/operator is predicated upon the
negligence of a third party, actual or constructive notice of a dangerous
condition is a condition precedent to the imposition of a duty on the
owner/operator. It is undisputed that Mr. Poe understood the importance of
the horizontal bars being installed at the top of the scaffolding. It is
undisputed that Mr. Poe observed employees of H. E. Parmer remove the
horizontal safety rail of the scaffold to prop their ladders. As to constructive
notice, “Plaintiffs may prove that a premises owner had constructive notice
of the presence of dangerous condition by showing a pattern of conduct, a
[recurring] incident, or a general or continuing condition indicating the
dangerous condition's existence.” There is no evidence presented in this case
that DSS had actual or constructive knowledge about the removal of
guardrails from the scaffolding. Therefore, the Court finds that both Mr. and
Mrs. Lynch or Mr. Poe have failed to show that a dangerous condition existed
on Mr. Poe’s property was either caused or created by DSS, or that DSS had
actual or constructive notice that the condition existed prior to Plaintiff fall.
Therefore, DSS is entitled to summary judgment because neither Mr. and
Mrs. Lynch nor Mr. Poe can prove an essential element of their negligence
claim.
(footnotes omitted).
The trial court also ruled that, even if it were to view Plaintiffs’ claims as a simple
negligence claim, “DSS still did not owe a duty to Plaintiff or Mr. Poe.”
This appeal by Plaintiffs and Mr. Poe followed.
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ISSUES
The issue as stated by Plaintiffs reads:
Did the trial court err in granting summary judgment to Defendant
Contractors Access Equipment Jackson, Inc., a.k.a. Direct Scaffold Services
(DSS), where material evidence shows that Defendant Bradley Poe relied
extensively on guidance from DSS when assembling the defective and
dangerous scaffolding that caused the Plaintiff s injury?
The issue as stated by Mr. Poe reads:
Did the trial court err in granting summary judgment to Defendant
Contractors Access Equipment Jackson, Inc., a.k.a. Direct Scaffold Services
(DSS), where there exist disputed material facts from which a jury may
decide that DSS by its actions assumed and breached a duty of care to
Plaintiff, Mr. Lynch, when DSS undertook to advise Defendant Brad Poe
regarding the proper installation of scaffolding at his home, and failed to
advise of the need to obtain OSHA certification?
The issue as stated by DSS reads:
Whether the Trial Court properly granted Defendant Contractors Access
Equipment Jackson, Inc., a.k.a. Direct Scaffold Services’ (“DSS”) Motion
for Summary Judgment where there are no material facts in dispute and the
Trial Court found that DSS did not owe a duty to Plaintiffs or Co-Defendant
Bradley Poe because DSS had no control over the premises, DSS had no
actual or constructive notice of a dangerous condition on the premises, DSS
did not contract with Co-Defendant Bradley Poe to construct an OSHA-
compliant scaffolding until after Plaintiff Mr. Lynch’s injury, and Mr. Poe
did not otherwise rely upon DSS to construct the scaffolding on Co-
Defendant Bradley Poe’s property.
STANDARD OF REVIEW
This Court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tennessee Rule of Civil Procedure 56 have
been satisfied. Id.; Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997). In so doing, we
accept the evidence presented by the nonmoving party as true, consider the evidence in the
light most favorable to the nonmoving party, and draw all reasonable inferences in that
party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).
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Summary judgment should be granted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. “The moving party has the ultimate burden of
persuading the court that there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law.” Martin v. Norfolk S. R.R. Co., 271 S.W.3d
76, 83 (Tenn. 2008). As our Supreme Court explained in Rye v. Women’s Care Center of
Memphis, MPLLC, 477 S.W.3d at 264:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary judgment
stage is insufficient to establish the nonmoving party’s claim or defense.
Rye, MPLLC, 477 S.W.3d at 264. However, “if the moving party bears the burden of proof
on the challenged claim at trial, that party must produce at the summary judgment stage
evidence that, if uncontroverted at trial, would entitle it to a directed verdict.” TWB
Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 888 (Tenn. 2019) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 331 (1986)).
To survive a properly supported motion for summary judgment pursuant to Rule 56,
the nonmoving party “may not rest upon the mere allegations or denials of [its] pleading,”
but must respond and set forth specific facts by affidavits—or one of the other means
provided in Tennessee Rule of Civil Procedure 56—establishing that there is a genuine
issue for trial. Rye, 477 S.W.3d at 265 (alteration in original) (quoting Tenn. R. Civ. P.
56.06). “Whether the nonmoving party is a plaintiff or a defendant—and whether or not
the nonmoving party bears the burden of proof at trial on the challenged claim or defense—
at the summary judgment stage, ‘[t]he nonmoving party must demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in favor of the
nonmoving party.’”2 TWB Architects, 578 S.W.3d at 889 (alteration in original) (quoting
Rye, 477 S.W.3d at 265).
“The determination of whether a duty exists in the context of a negligence claim is
a question of law.” Draper v. Westerfield, 181 S.W.3d 283, 291 (Tenn. 2005). Similarly,
“the question of whether one has assumed a duty to act is also a question of law.” Stewart
v. State, 33 S.W.3d 785, 793 (Tenn. 2000).
2
As the Supreme Court explained in TWB Architects, Inc. v. Braxton, LLC, “[t]his is the standard
Tennessee courts must apply when ruling on summary judgment motions regardless of which party bears
the burden of proof at trial.” 578 S.W.3d at 889.
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ANALYSIS
As discussed earlier, two claims and two issues were presented to the trial court.
One, whether DSS was entitled to summary judgment under premises liability principles.
And, two, whether DSS assumed a duty of care under general negligence principles. The
trial court found that DSS was entitled to summary judgment under both principles.
Plaintiff and Mr. Poe contend that both of these decisions were in error. Thus, we will
discuss each in turn.
I. PREMISES LIABILITY
In order to maintain a claim for premises liability, a plaintiff must present prima
facie evidence of the customary elements of negligence. The elements include “(1) a duty
of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable
standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in
fact; and (5) proximate, or legal cause.” Jones v. Exxon Corp., 940 S.W. 2d 69, 71 (Tenn.
Ct. App. 1996) (citations omitted).
In addition to the customary elements of negligence, a plaintiff seeking to hold an
owner or operator of property liable in a premises liability action must first prove that a
“dangerous or defective condition” existed on the owner’s premises. Nee v. Big Creek
Banners, 106 S.W.3d 650, 653–54 (Tenn. Ct. App. 2002). “If no dangerous or defective
condition exists, an owner or occupier cannot be held liable for failing to take action in
order to remedy the supposed condition.” Id. at 654. Furthermore, a plaintiff must also
prove that “1) the condition was caused or created by the owner, operator, or his agent, or
2) if the condition was created by someone other than the owner, operator, or his agent,
that the operator had actual or constructive notice that the condition existed prior to the
accident.” Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004).
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. See Nee,
106 S.W.3d at 653–54. 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 Mr. Poe are able
to prove an essential element of a premises liability claim against DSS. See id.; see also
Blair, 130 S.W.3d at 764. Accordingly, we affirm the grant of summary judgment on this
basis.
This brings us to the question of whether DSS is entitled to summary judgment
based on general negligence principles.
II. GENERAL NEGLIGENCE: ASSUMPTION OF DUTY
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“To prevail on a claim of negligence, the plaintiff must prove by a preponderance
of the evidence the five essential elements of a claim of negligence: ‘(1) a duty of care
owed by the defendant to the plaintiff; (2) conduct failing below the applicable standard of
care amounting to a breach of that duty; (3) an injury of loss; (4) causation in fact; and (5)
proximate, or legal, cause.’” Parsons v. Wilson Cnty., No. M2014-00521-COA-R3-CV,
2015 WL 5178601, at *5 (Sep. 3, 2015) (quoting King v. Anderson Cnty., 419 S.W.3d 232,
246 (Tenn. 2013); Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 819 (Tenn. 2008)).
Generally, the duty owed by a defendant “is in all cases that of reasonable care under
all of the circumstances.” West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 550
(Tenn. 2005). Thus, when determining whether a defendant owes a duty to protect a third
party from harm, a court must consider the specific injuries suffered by that third party and
whether those injuries, and the manner in which those injuries occurred, were reasonably
foreseeable. Biscan v. Brown, 160 S.W.3d 462, 479 (Tenn. 2005). Such a duty to third
parties will only attach, however, if a defendant first undertakes “to render services to
another which he should recognize as necessary for the protection of a third person or his
things” and:
(a) [Defendant’s] failure to exercise reasonable care increases the risk of
such harm, or (b) he has undertaken to perform a duty owed by the other
to the third person, or (c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
Id. at 483 (citing Restatement (Second) of Torts §324A).
Plaintiffs and Mr. Poe argue that DSS gratuitously undertook the duty to ensure that
Mr. Poe installed the scaffolding correctly. As such, they contend “DSS’ duty to Mr. Lynch
could arguably arise from either of the three listed [Biscan] criteria.” We respectfully
disagree.
Our Supreme Court has explained that implication of the circumstances outlined in
Biscan first requires that a defendant actually undertakes to render services to another. In
this regard, section 324A of the relevant Restatement specifies that “a duty can only be
imposed ‘to the extent actually assumed by the defendant.’” Grogan v. Uggla, 535 S.W.3d
864, 874 (Tenn. 2017) (emphasis added). Thus, in order to find that DSS owed a duty to
Mr. Lynch or Mr. Poe, we must first determine whether DSS actually assumed the duty to
supervise the installation of the scaffolding.
Here, the undisputed facts demonstrate that DSS never undertook to install or
supervise the installation of the scaffolding at Mr. Poe’s residence. First, and significantly,
it is undisputed that DSS offered a scaffolding installation service for an additional fee, but
that Mr. Poe 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 Mr. Poe
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assumed the responsibility to install the scaffolding himself.
It is also undisputed that no DSS employee physically installed any of the
scaffolding on Mr. Poe’s property prior to Mr. Lynch’s fall. Moreover, it is undisputed that
any questions Mr. Poe 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. Further, the only advice Mr. Ferrell provided was
when he noticed that Mr. Poe had used cinder blocks instead of leveling jacks to level the
base of the scaffold on a sloped surface. More importantly and significantly, Mr. Poe
admitted that he never requested or received any advice from any DSS employee, including
Mr. Ferrell, about the correct installation of the guardrail bars that would have allegedly
prevented Mr. Lynch’s fall.
Viewing these facts in the light most favorable to Plaintiffs and Mr. Poe, the
undisputed facts show 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. For these reasons, we affirm the trial court’s determination that the
undisputed facts show that DSS did not owe a duty to Mr. Lynch as a matter of law. As
such, we affirm the trial court’s decision to grant DSS’s motion for summary judgment
based on general negligence principles.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Bradley E. Poe, David Lynch, and Gaila Lynch.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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