Baker v. Pena, No. 00-309.

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: KITE, Justice.
• Citation: 2001 WY 122,36 P.3d 602
• Parties: Fern A. BAKER, Appellant (Plaintiff), v. Jerry G. PENA, Appellee (Defendant).
• Docket Number: No. 00-309.
• Decision Date: 10 December 2001

36 P.3d 602
2001 WY 122

Fern A. BAKER, Appellant (Plaintiff),
v.
Jerry G. PENA, Appellee (Defendant)

No. 00-309.

Supreme Court of Wyoming.

December 10, 2001.

36 P.3d 604

Michael P. Reynolds of Quinn, Day & Barker, Prof. L.L.C., Belle Fourche, South Dakota; and David A. Bradsky, Rapid City, SD, Representing Appellant

Kay Lynn Bestol of Sundahl, Powers, Kapp & Martin, Cheyenne, WY, Representing Appellee.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Fern Baker (the tenant) was injured when a board in the deck appurtenant to the residential premises she leased from Jerry Pena (the landlord) rolled underneath her. The tenant brought an action for damages against the landlord on two theories of liability. The district court determined there was no genuine issue of material fact and granted the landlord's motion for summary judgment. We agree with the district court that a genuine issue of material fact does not exist as to whether the tenant's claim fits within the fourth exception to the general rule of landlord immunity. However, we adopt Restatement (Second) of Torts § 362 (1965) to further define the fifth exception to the general rule of landlord immunity. On this basis, we affirm the district court's order in part, reverse it in part, and remand the case for proceedings consistent with this opinion.

ISSUES

[¶ 2] The tenant presents this issue for our review:

1. Whether a genuine issue of material fact exists precluding summary judgment on [the tenant's] claims that [the landlord] had contracted to repair the premises and/or was negligent in making repairs.

The landlord sets the issue out as follows:

Under the common law rule of landlord immunity for tort liability in effect in Wyoming prior to July 1, 1999, a tenant cannot recover from her landlord for injuries arising from a failure to repair unless the landlord had first promised to make repairs. There is no evidence that [the] landlord ... promised or agreed to make repairs. May [the tenant] recover for injuries caused by the alleged failure to repair?

FACTS

[¶ 3] The facts adduced from the record are examined in the light most favorable to the tenant consistent with our well settled jurisprudence. The evidence presented for our review is comprised of deposition materials and affidavits. This case arose out of a landlord/tenant relationship between the parties. In June of 1995, the tenant leased the premises for $250 a month subject to an oral lease. In the early morning hours of August 13, 1997, the tenant returned home from work after a brief stop at a local bar. She proceeded up the ramp to her deck, and the top decking board apparently rolled resulting in her injury.

[¶ 4] The tenant recalled four prior incidents in which either she or her social guests had fallen as a result of the deck's state of disrepair. First, in 1995 her granddaughter's leg went through the deck when a board broke. Next, in 1996 the tenant fell through a board that had broken on the ramp. A few months later, the tenant's friend fell through the deck when a board broke. Finally, in 1997 the tenant's sister fell through the ramp when two boards broke. The tenant stated that after each occurrence the landlord replaced the broken boards. The final incident was the only occasion the landlord could recall when he had been notified that someone had fallen as the result of the deck, and it was the only time he could recall being asked to repair the deck.

[¶ 5] On April 27, 1999, the tenant filed a complaint against the landlord for injuries

36 P.3d 605

she suffered as the result of her fall. She contended the landlord was responsible for the maintenance and repair of the leased premises, including the deck. She also claimed he was negligent in the construction, maintenance, and repair of the deck. On May 15, 2000, the landlord moved for summary judgment and asserted that, as a landlord, he was immune from tort liability and the tenant's claim did not fit within one of the recognized exceptions to the general rule. On July 27, 2000, the district held a hearing on this matter. On August 29, 2000, it granted the landlord's motion for summary judgment, and this appeal followed.¹

STANDARD OF REVIEW

[¶ 6] Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 10, 25 P.3d 511, ¶ 10 (Wyo. 2001); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which has been asserted by the parties. Williams Gas Processing—Wamsutter Company v. Union Pacific Resources Company, 2001 WY 57, ¶ 11, 25 P.3d 1064, ¶ 11 (Wyo.2001). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001). We do not accord any deference to the district court's decisions on issues of law. Id.

DISCUSSION

[¶ 7] At the time of the injury, Wyoming followed the common-law rule of landlord immunity for liability in most circumstances.² Taylor v. Schukei Family Trust by and through Schukei, 996 P.2d 13, 16 (Wyo.2000). As a general rule, immunity relieves the landlord of a duty to the tenant or the tenant's guests for dangerous or defective conditions of the premises. Id. The common law developed from the concept that "the tenant was the owner and occupier subject to all the responsibilities of one in possession and burdened with maintaining the premises in a reasonably safe condition to protect persons who came upon the land." Ortega v. Flaim, 902 P.2d 199, 202 (Wyo. 1995). However, Wyoming has recognized the following exceptions to the general rule of landlord immunity:

1. Undisclosed conditions known to lessor and unknown to the lessee which were hidden or latently dangerous and caused an injury.

2. The premises were leased for public use and a member of the public was injured.

3. Part of the premises was retained under the lessor's control, but was open to the use of the lessee.

4. Lessor had contracted to repair the premises.

5. Negligence by lessor in making

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