Borders v. Roseberry, 47579

• Decision Date: 01 March 1975
• Docket Number: No. 47579,47579
• Citation: 216 Kan. 486,532 P.2d 1366
• Parties: Gary D. BORDERS, Plaintiff-Appellant, v. Agnes ROSEBERRY, Defendant-Appellee.
• Court: Kansas Supreme Court

Page 1366

532 P.2d 1366

216 Kan. 486

Gary D. BORDERS, Plaintiff-Appellant, v. Agnes ROSEBERRY, Defendant-Appellee.

No. 47579.

Supreme Court of Kansas.

March 1, 1975.

Syllabus by the Court

1. The general principles of law to be followed in determining the liability of a landlord for personal injuries caused by a defective condition on the premises existing at the time of the lease are reviewed and applied.

2. The record is examined in an action brought by the social guest of a tenant in possession of a one-story, single-family residence to recover for personal injuries sustained by the guest as the result of falling on ice on the front steps due to the absence of roof guttering and it is held that under the facts and circumstances set forth in the opinion, the landlord is not liable for the guest's injuries.

Willis H. McQueary, Osawatomie, argued the cause, and was on the brief for defendant-appellee.

Karl V. Shawver, Jr., Paola, argued the cause, and was on the brief for plaintiff-appellant.

PRAGER, Justice:

This case involves the liability of a landlord for personal injuries suffered by the social guest of the tenant as the result of a slip and fall on the leased premises. The facts in this case are undisputed and are as follows: The defendant-appellee, Agnes Roseberry, is the owner of a single-family, one-story residence located at 827 Brown Avenue, Osawatomie, Kansas. Several months prior to January 9, 1971, the defendant leased the property on a month to month basis to a tenant, Rienecker. Just prior to the time the tenant took occupancy of the house the defendant landlord had work performed on the house. The remodeling of the house included a new roof. In repairing the house the repairmen removed the roof guttering from the front of the house but failed to reinstall it. The landlord knew the guttering had been removed by the workmen, intended to have it reinstalled, and knew that it had not been reinstalled. The roof line on the house was such that without the guttering the rain drained off the entire north side of the house onto the front porch steps. In freezing weather water from the roof would accumulate and freeze on the steps. The landlord as well as the tenant knew that the guttering had not been reinstalled and knew that without the guttering, water from the roof would drain onto the front porch steps and in freezing weather would accumulate and freeze. The tenant had complained to the landlord about the absence of guttering and the resulting icy steps.

On January 9, 1971, there was ice and snow on the street and ice on the front steps. During the afternoon the tenant worked on the front steps, removing the ice accumulation with hammer. The plaintiff-appellant, Gary D. Borders, arrived on the premises at approximately 4:00 p. m. in response to an invitation of the tenant for dinner. It is agreed that plaintiff's status was that of a social guest of the tenant. There was ice on the street and snow on the front steps when plaintiff arrived. At 9:00 p. m. as plaintiff Borders was leaving the house he slipped and fell on an accumulation of ice on the steps and received personal injuries. There is no contention that the plaintiff Borders was negligent in a way which contributed to cause his injuries. After a pretrial conference the case was tried to the court without a jury. Following submission of the case the trial court entered judgment for the defendant, making findings of fact which are essentially those set forth above. The trial court based its judgment upon a conclusion of law which stated that a landlord of a single-family house is under no obligation or duty to a social guest, a licensee of his tenant to repair or remedy a known condition whereby water dripped onto the front steps of a house fronting north froze and caused plaintiff to slip and fall. The plaintiff has appealed to this court.

The sole point raised on this appeal by the plaintiff, Gary D. Borders, is that the trial court committed reversible error in concluding as a matter of law that a landlord of a single-family house is under no obligation or duty to a social guest of his tenant to repair or remedy a known condition whereby water dripped from the roof onto the front steps of a house fronting north, froze and caused the social guest to slip and fall.

At the outset it should be emphasized that we do not have involved here an action brought by a social guest to recover damages for personal injuries from his host, a possessor of real property. The issue raised involves the liability of a lessor who has leased his property to a tenant for a period of time. Furthermore, it should be pointed out that the plaintiff, a social guest of the tenant, has based his claim of liability against the landlord upon the existence of a defective condition which existed on the leased property at the time the tenant took possession.

Traditionally the law in this country has placed upon the lessee as the person in possession of the land the burden of maintaining the premises in a reasonably safe condition to protect persons who come upon the land. It is the tenant as possessor who, at least initially, has the burden of maintaining the premises in good repair. (Bailey v. Kelly, 93 Kan. 723, 145 P. 556, overruling a prior decision in the same case, Bailey v. Kelly, 86 Kan. 911, 122 P. 1027.) The relationship of landlord and tenant is not in itself sufficient to make the landlord liable for the tortious acts of the tenant. (Greiving v. La Plante, 156 Kan. 196, 131 P.2d 898; Compbell v. Weathers, 153 Kan. 316, 111 P.2d 72.) When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the responsibilities of one in possession, both to those who enter onto the land and to those outside of its boundaries. Professor William L. Prosser in his Law of Torts, 4th Ed. § 63, points out that in the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. There is therefore, as a general rule, no liability upon the landlord, either to the tenant or to others entering the land, for defective conditions existing at the time of the lease.

The general rule of non-liability has been modified, however, by a number of exceptions which have been created as a matter of social policy. Modern case law on the subject today usually limits the liability of a landlord for injuries arising from a defective condition existing at the time of the lease to six recognized exceptions. These exceptions are as follows:

1. Undisclosed dangerous conditions known to lessor and unknown to the lessee.

This exception is stated in Restatement, Second, Torts § 358 as follows:

' § 358. Undisclosed Dangerous Conditions Known to Lessor

'(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if

'(a) the lessee does not know or have reason to know of the condition or the risk involved, and

'(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

(2) If the lessee actively conceals the condition, the liability stated Subsection (1) continues until the lessee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.'

In Kansas we have recognized and applied this exception to impose liability upon the landlord in the following cases: Moore v. Parker, 63 Kan. 52, 64 P. 975; Branstetter v. Robbins, 178 Kan. 8, 283 P.2d 455; Stertz v. Briscoe, 184 Kan. 163, 334 P.2d 357; Tillotson v. Abbott, 205 Kan. 706, 472 P.2d 240; Bodnar v. Jackson, 205 Kan. 469, 170 P.2d 726. It should be pointed out that this exception applies only to latent conditions and not to conditions which are patent or reasonably discernible to the tenant. (Branstetter v. Robbins, supra.)

2. Conditions dangerous to persons outside of the premises.

This exception is stated in Restatement, Second, Torts § 379 as follows:

' § 379. Dangerous Conditions Existing When Lessor Transfers Possession.

'A lessor of land who transfers its possession in a condition which he realizes or should realize will involve unreasonable risk of physical harm to others outside of the land, is subject to the same liability for physical harm subsequently caused to them by the condition as though he had remained in possession.'

The theory of liability under such circumstances is that where a nuisance dangerous to persons outside the leased premises (such as the traveling public or persons on adjoining property) exists on the premises at the time of the lease, the lessor should not be permitted to escape liability by leasing the premises to another. The liability of the landlord for structural defects on leased property which causes injuries to persons outside of the premises was recognized and made the basis of a judgment against the landlord in Mitchell v. Foran, 143 Kan. 191, 53 P.2d 490. Mitchell involved an awning hook which was fastened to the leased building and projected onto the public sidewalk and caused injury to a nine-year-old pedestrian.

3. Premises leased for admission of the public.

The third exception arises where land is leased for a purpose...