1996 -NMSC- 76, Gourdi v. Berkelo

• Decision Date: 06 December 1996
• Docket Number: No. 23778,23778
• Citation: 930 P.2d 812,122 N.M. 675,1996 NMSC 76
• Parties: , 1996 -NMSC- 76 Tamara GOURDI and Timothy C. Gourdi, Husband and Wife, Plaintiffs-Respondents, v. Robert S. BERKELO and Sharon B. Berkelo 1983 Trusts, Robert S. Berkelo, and Sharon B. Berkelo, Trustees, Defendants-Petitioners.
• Court: New Mexico Supreme Court

Page 812

930 P.2d 812

122 N.M. 675, 1996 -NMSC- 76

Tamara GOURDI and Timothy C. Gourdi, Husband and Wife Plaintiffs-Respondents, v. Robert S. BERKELO and Sharon B. Berkelo 1983 Trusts, Robert S. Berkelo, and Sharon B. Berkelo, Trustees Defendants-Petitioners.

No. 23778.

Supreme Court of New Mexico.

Dec. 6, 1996.

Dines, Wilson & Gross, P.C., Nelse Schreck, Michael A. Gross, Albuquerque, for Defendants-Petitioners.

Will Ferguson & Associates, Donald M. Pinnock, Albuquerque, for Plaintiffs-Respondents.

OPINION

McKINNON, Justice.

Tamara Gourdi was working as a waitress for a J.B.'s Big Boy Family Restaurant ("J.B.'s") in Albuquerque when she slipped in liquid and fell on the restaurant floor, the presence of the liquid being caused by a drainage backup on the premises. J.B.'s leased the premises from the Robert S. Berkelo and Sharon B. Berkelo 1983 Trusts ("the owner"). Gourdi and her husband sued the owner for damages, alleging that it negligently failed to construct and maintain the drainage pipe which had backed up, thereby causing her injuries. We granted the owner's petition for certiorari to review a memorandum opinion by the Court of Appeals that reversed a summary judgment in favor of the owner. Although we hold that the owner had a duty before letting the premises to remedy defects that a reasonable inspection would reveal, we conclude that there was no genuine issue of material fact that this duty was breached. We therefore reverse the Court of Appeals and remand to the trial court for entry of summary judgment dismissing the complaint.

Facts and proceedings. The owner is the lessor's successor to a written lease agreement entered into with J.B.'s in 1978. Under the lease, J.B.'s, as lessee, accepted responsibility for all repairs to and maintenance of the property.

The tenant shall keep and maintain all the Leased Premises, exterior and interior, and the improvements thereon, including the exterior walls, floor joists, and foundations of said building, the asphalt paving, fencing and landscaping, in good condition and repair, and in a safe, clean, attractive and sanitary condition.

However, the owner retained the right to enter the property, make inspections, and initiate repairs.

Landlord reserves the right for Landlord's agents or employees to enter the Leased Premises during normal business hours, to examine the conditions thereof, to repair, protect, improve or add to the Leased Premises and any and all things pertaining thereto.

Gourdi was injured on February 15, 1994. In an affidavit she asserted that drainage had backed up on the floor of the restaurant five or six times between August 1993 and February 1994. Robert Berkelo, as a representative of the owner, admitted that after the purchase of the premises on September 30, 1992, he only visited it once prior to Gourdi's accident. Sharon Berkelo, likewise a representative of the owner, admitted that she never had seen the property prior to the accident. We assume for purposes of this Opinion that five or six backups occurred as alleged, and that the backup of February 15, 1994, was a proximate cause of the injuries suffered by Gourdi. It was uncontroverted that neither of the Berkelos had any knowledge of any drainage backup until after the accident.

On every occasion when a drainage backup occurred, J.B.'s employed a plumber to clean out the line. After the accident J.B.'s plumbing contractor opined that a dip in the drainage pipe running from outside the restaurant was the cause of the backups. This opinion was confirmed and the problem solved when a new drainage pipe was laid from the building to the city sewer line. It was also confirmed that the dip was caused by normal subsidence of the soil.

(5) A landlord has a duty prior to leasing the premises to remedy any dangerous condition that a reasonable inspection would reveal. Whether the owner owed a duty to Gourdi is a question of law to be resolved by reference to policy established by "legal precedent, statutes, and other principles comprising the law." Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990). The duty question here involves the scope of a landlord's obligation to an employee of the tenant. Gourdi argues that a landlord who reserves the right to reenter the premises to make inspections and initiate repairs owes a continuing duty to keep the premises in a reasonably safe condition. Under the circumstances of this case, the argument states the law too broadly.

At common law the rule was established that a landlord who lawfully parts with possession of the property, and who thereafter neither retains nor assumes a right of control over it, has no duty to inspect for dangerous conditions while the tenant remains in possession. See Lommori v. Milner Hotels, Inc., 63 N.M. 342, 346-47, 319 P.2d 949, 952 (1957) (noting common-law rule and four exceptions; holding lessor who covenanted to make repairs of hotel exterior properly held liable for injuries resulting from falling window pane); see also City of Dalton v. Anderson, 72 Ga.App. 109, 33 S.E.2d 115, 117 (1945). In Mitchell v. C & H Transportation Co., 90 N.M. 471, 474, 565 P.2d 342, 345 (1977), citing what we termed as "a sound body of law in many jurisdictions," we modified this common-law rule to impose under certain circumstances a continuing liability on landlords who reserve the right to enter leased premises and make repairs. Id. There, we reversed a summary judgment in favor of a lessee and sublessee of a truck stop whose alleged negligence in failing to repair an obviously dangerous "convex surface" in the truck stop driveway caused a highway accident.

The owner here maintains that no duty was owed to Gourdi because the defect in the drainage pipe that caused the flooding was latent and therefore not discoverable upon reasonable inspection. The owner argues that this case should be governed by Restatement (Second) of Torts Section 355 (1965), which provides:

Except as stated in §§ 357 and 360-362, a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sub-lessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession.

Section 357 imposes liability on a landlord who contracts to make repairs; Section 360 imposes liability when the landlord retains control over portions of the land which the tenant is entitled to use; Section 361 imposes liability when portions of land are retained in the lessor's control but are necessary to the safe operation of the leased premises; and Section 362 imposes liability on a landlord who negligently performs repairs. None of these exceptions apply here.

However, we need not decide whether to adopt Section 355 as the law in New Mexico since there is no evidence establishing when the defect in the drainage line occurred. Nevertheless, the result in this case is the same regardless of when the defect arose. We therefore assume that the defect existed either at the time of or after execution of the lease.

A landlord is not obligated to provide a tenant with a premises completely free of defects. Elijah A. Brown Co. v. Wilson, 191 Ga. 750, 13 S.E.2d 779, 781 (1941). As a matter of fairness, the law does not make landlords guarantors of the safety of their tenants or visitors. Rather, a landlord is bound by the standard of ordinary care, see Bober v. New Mexico State Fair, 111 N.M. 644, 649-50, 808 P.2d 614, 619-20 (1991) (adopting rule that landowners have general duty to exercise ordinary care for the safety of others), and must, prior to leasing the premises, remedy such dangerous conditions as an...