Baker v. Pena, 00-309.

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

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.

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 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 repairs.

Id. (citations omitted); see also Pavuk v. Rogers, 2001 WY 75, ¶ 5, 30 P.3d 19,

¶5 (Wyo.2001). The tenant asserts the fourth and fifth exceptions are applicable and determinative of her claim. We will address each exception separately.

A. Lessor Contracted to Repair the Premises

[¶ 8] In Hefferin v. Scott Realty Co., 71 Wyo. 114, 254 P.2d 194 (1953), we examined the common-law rules of landlord liability. In that case, a tenant sued her landlord for injuries resulting from the landlord's improper furnishing of ventilation in the leased premises. 254 P.2d at 194. The parties' lease did not contain any provisions which referenced an obligation on the landlord's part to make repairs. 254 P.2d at 195. We held that, in the absence of an agreement to the contrary, a landlord is not obligated to make repairs upon the leased premises during the lease period whether the defects existed at the time he leased the premises or occurred thereafter. 254 P.2d at 197. This is so even if the premises are in a dangerous condition. Id. This principle is based on the theory that a landlord should not be liable for defects in the leased premises where he has not made any warranty or contract as to the condition of those premises or as to the repair of defects and is guilty of no willful wrong or fraud. Id. Essentially, the duty to repair arises out of the existence of the contract to repair; therefore, the contract defines the extent of the duty. Montelongo v. Goodall, 788 S.W.2d 717, 719 (Tex.App.1990). In Hefferin, the tenant did not rely on a contract contained in the lease, but instead she alleged the landlord made a promise to properly install a new ventilation system. 254 P.2d at 197. In response to the tenant's claim, we held the landlord is under no obligation to make repairs unless such a stipulation is made a part of the original contract or any subsequent promise to make repairs is supported by consideration and not founded merely on the relation of the parties. Id. Sufficient consideration exists when a tenant, who is not bound to a term of tenancy, relies upon a landlord's promise to make repairs made to induce the continuation of the tenancy. Id. However, in Hefferin, the tenant agreed to a definite three-year lease term, and we concluded there was no new consideration present for a promise or contract. Thus, the promise made by the landlord was wholly gratuitous, and therefore the landlord could not be liable. Id. Moreover, we held that a landlord's agreement to make repairs must take the form of an express contract and should not be implied from the parties' conduct. Id.; see also Taylor, 996 P.2d at 18

.

[¶ 9] The resolution of this matter centers on whether there is a genuine issue of material fact as to the existence of an agreement to make repairs. The tenant argues there are three indications in the record which prove there was, in fact, a mutual agreement that the landlord would make repairs. First, the tenant speculated that Dale Stietz, her boyfriend at the time and a party to the lease, made an agreement with the landlord. However, she admitted that she did not have any personal knowledge of such an agreement, and Mr. Stietz did not recall one. A genuine issue of material fact would be present if either the tenant herself made an agreement with the landlord or she had personal knowledge of an agreement between the...