Detling v. Edelbrock

• Decision Date: 15 May 1984
• Docket Number: No. 65048,65048
• Citation: 671 S.W.2d 265
• Parties: Dorothy DETLING, Marte Reading, Glenda Saunders, Janet Corsiglia, and Charlene Davison, Appellants, v. C.E. EDELBROCK, Respondent.
• Court: Missouri Supreme Court

Page 265

671 S.W.2d 265

Dorothy DETLING, Marte Reading, Glenda Saunders, Janet Corsiglia, and Charlene Davison, Appellants, v. C.E. EDELBROCK, Respondent.

No. 65048.

Supreme Court of Missouri En Banc.

May 15, 1984.

Michael Hufft, Kansas City, for appellants.

Don A. Peterson, Gary L. Smith, James M. Thompson, Kansas City, for respondent.

WELLIVER, Judge.

Appellants appeal from an order of the Circuit Court of Jackson County dismissing their four count first amended petition for failure to state a cause of action. We ordered the cause transferred on respondent's application. Rule 83.03. We review the case as on original appeal. Rule 83.09.

The original proceeding herein was an action brought by tenants seeking (1) specific performance of express and implied covenants of their rental agreement with respondent; (2) appointment of a receiver pursuant to § 441.510, RSMo 1978, ¹ to collect and manage rental payments until violations of the Kansas City Property Maintenance and Fire Prevention Codes had been rectified; (3) actual and punitive damages and attorneys fees pursuant to the Merchandising Practices Act, chapter 407. The court ordered the appointment of a receiver, but his efforts to abate the code violations were frustrated by his inability to secure a loan on the property in question. Consequently, the court ordered the receiver only to collect rents and pay utility bills and respondent was ordered to make all necessary repairs in order to rectify the code violations. The Kansas City Public Works Department issued a certificate of occupancy several months later. However, within a few months there were further violations of the Property Maintenance and the Fire Prevention Codes. Most of the tenants vacated the premises as a result of the conditions.

In September 1980, two additional tenants were added as plaintiffs and a first amended petition in four counts was filed by appellants. The pleadings were filed with substantial disregard of Rule 55.04, directing that pleadings shall be "simple, concise and direct." Count I contained forty-five paragraphs, three of which contained a total of forty-five subparagraphs. Counts II, III and IV adopted the prior ninety paragraphs and subparagraphs by reference. Count II added six additional paragraphs, Count III fourteen additional paragraphs and Count IV eight additional paragraphs. From this mass of pleadings it is difficult to identify the legal theory pleaded in the various counts without the aid of the captions supplied by appellants. Count I is designated as negligence per se, Count II breach of implied warranty of habitability, Counts III and IV action for damages under the Merchandising Practices Act. The nine points on appeal and eighty-one pages of brief are as elusive as are the pleadings.

In reviewing the trial court's dismissal of the petition, we must determine if the facts pleaded and the inferences reasonably drawn therefrom demonstrate any ground for relief. We treat the facts averred as true, construe all averments liberally and favorably to appellants and determine whether the pleadings invoke principles of substantive law upon which relief can be granted. Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); Concerned Parents v. Caruthersville School District, 548 S.W.2d 554, 558 (Mo. banc 1977).

I

Respondent contends that dismissal of Count I was proper because recovery for the tort injuries alleged is barred by the landlord tort immunity doctrine. See Knox v. Sands, 421 S.W.2d 497, 501 (Mo.1967); Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 730 (1950). Appellants, apparently conceding that the common law rule bars recovery in Count I, urge us to either abrogate the rule or recognize an exception for injuries resulting from a landlord's breach of a municipal housing code. ²

We need not address these questions because we conclude appellants have not alleged any compensable injuries as a result of respondent's acts or omissions. Appellants first seek damages for their "enormous annoyance, discomfort, frustration, mental anxiety and mental distress." Such damages are, of course, compensable in certain circumstances. At the time appellants filed this petition, our decisions required a plaintiff seeking damages for negligent infliction of mental distress to show that the harm resulted from a contemporaneous physical injury. See Williams v. School District of Springfield, 447 S.W.2d 256, 266 (Mo.1969). Our recent decision in Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983), abolished the "physical impact rule" and held that damages for mental distress may be recovered when:

(1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress; and

(2) The emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.

Id. at 772-73 (footnote omitted) (emphasis added). A thorough and careful review of appellants' amended petition reveals no allegations that satisfy either the physical injury required by Williams or the medically significant or diagnosable mental injury required by Bass v. Nooney. In Count I appellants also seek damages for "the difference between the amount of rent charged and paid by each plaintiff and the fair rental value of the premises in its defective condition for the term of each plaintiffs' tenancy." Such loss of bargain damages, if proven, result from respondent's breach of his obligations under the lease. Appellants will be adequately compensated for the alleged damages if they prevail in Count II. We decline to undertake a full blown review of the landlord tort immunity doctrine when appellants have available to them an adequate remedy. Count I was properly dismissed.

II

In Count II appellants allege that respondent's failure to correct the claimed housing code violations breached the implied warranty of habitability. This Court previously has not had an opportunity to appraise the status of the warranty of habitability in Missouri, ³ although the Court of Appeals, Western District, recognized such a warranty over a decade ago in King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973). For the reasons set forth below, we conclude that appellants have stated a cause of action in Count II.

At common law a tenant leased property subject to the rule of caveat emptor and the landlord, with certain exceptions, had no duty to maintain and repair rental property or fixtures thereon. Our decision in Turner v. Ragan, 229 S.W. 809 (Mo.1921) exemplifies this traditional learning:

The landlord does not, by making the lease, impliedly warrant that the premises are safe or fit for the use to which the lessee may intend to put them. A rule similar to that of caveat emptor applies. It is the duty of the lessee to examine as to the existence of defects in the premises and to provide against their ill effects.

Id. at 811. The common law rules as applied to leases for residential premises have come under heavy criticism in recent years as being outmoded for contemporary leasing arrangements. As a consequence, courts in many jurisdictions have abrogated the common law rules in favor of an implied warranty of habitability. ⁴ Several rationales have been advanced for replacing the common law with such a warranty, including: (1) doctrinal changes in the law, including recognition of the contractual nature of modern lease agreements and the trend against caveat emptor in favor of a warranty of fitness in consumer transactions; (2) the widespread enactment of state and local housing regulations establishing minimum community standards of habitability; (3) the tenant's reasonable expectation that property leased for the purpose of human habitation for a designated period of time will be fit for that use for the duration of the lease; and, (4) the belief that tenants lack the means or abilities either to fully inspect modern dwelling units or to maintain the premises during the term of the lease. See King v. Moorehead, supra, at 69-75; Green v. Superior Court, 10 Cal.3d 616, 517 P.2d 1168, 1171-76, 111 Cal.Rptr. 704, 707-712 (1974); Javins v. First National Realty Corp., 428 F.2d 1071, 1074-80 (D.C.Cir.), cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970).

Though we have yet to recognize the warranty of habitability, the law of Missouri has evolved beyond traditional common law precepts in several relevant respects. It is now accepted that a lease is both a conveyance and a contract. See Kamada v. RX Group Ltd., 639 S.W.2d 146, 148 (Mo.App.1982); King v. Moorehead, supra, at 70. Compare State ex rel. St. Louis County v. Evans, 346 Mo. 209, 139 S.W.2d 967, 969 (banc 1940) ("A lease is generally regarded as a conveyance or grant of an estate in real property for a limited term ...") Also, we have rejected caveat emptor in transactions for the purchase of a new home, holding instead that a vendor-builder impliedly warrants the home's fitness for use as a residence. Smith v. Old Warson Development Co., 479 S.W.2d 795 (Mo. banc 1972). In addition, it is common knowledge that counties and municipalities throughout the state have enacted housing and property maintenance codes which impose on property owners, including landlords, responsibilities with respect to the maintenance of property unknown to the common law. Our legislature made it the policy of this state to encourage compliance with local housing and building regulations with the enactment of the Enforcement of Minimum Housing Code Standards Act, §§ 441.510-441.640. The Act creates a state remedy for municipalities and tenants against the owners of buildings failing to meet local housing code standards.

Consideration of many of these developments led the Western District to recognize an implied warranty of habitability in leases for residential property in King v....