English v. Kienke

• Decision Date: 04 February 1993
• Docket Number: No. 890281,890281
• Citation: 848 P.2d 153
• Parties: Daniel ENGLISH, as personal representative of the Estate of Robert English, Plaintiff and Petitioner, v. Albert KIENKE, Defendant and Respondent.
• Court: Utah Supreme Court

Page 153

848 P.2d 153

Daniel ENGLISH, as personal representative of the Estate of Robert English, Plaintiff and Petitioner, v. Albert KIENKE, Defendant and Respondent.

No. 890281.

Supreme Court of Utah.

Feb. 4, 1993.

Fred R. Silvester, Charles P. Sampson, Claudia F. Berry, Salt Lake City, for Daniel English.

Aaron Alma Nelson, Allan L. Larson, Salt Lake City, for Albert Kienke.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HOWE, Associate Chief Justice:

We granted certiorari in this case to review the court of appeals' decision reported at 774 P.2d 1154 (Utah Ct.App.1989). In its decision, the court of appeals affirmed a summary judgment that had been granted in favor of defendant Albert Kienke and against plaintiff Daniel English.

Kienke, a full-time employee of the Utah Department of Transportation, owned several rental residential properties in the Salt Lake City area. He did most of the repair work on his properties, although on two or three occasions, he hired independent contractors. Robert English, plaintiff's son, learned from his mother, a friend of Kienke's wife, that Kienke might have a house to rent. Kienke showed English a house on Windsor Street in Salt Lake City that was run down and in need of extensive repairs. Since English was recently divorced and his finances were tight, he proposed to Kienke that he would repair and renovate the house in lieu of rent. Kienke accepted. However, the parties reached no formal agreement or understanding as to just how much work English would be required to perform each month. There was no understanding as to which projects would be completed, by what date, or how English's time would be valued.

English had little experience in construction, while Kienke had significant experience in construction and carpentry. Kienke showed English the areas of the house that needed repair work. English would commence a project on a particular part of the house by informing Kienke of his general plans and ideas, and Kienke would give his agreement. English would then perform the work, apparently without direction or supervision. As materials were needed, English purchased them and Kienke reimbursed him. Kienke visited the house to inspect the work only occasionally. He testified in his deposition that he did not see English for a month or two at a time. For the duration of their relationship, English worked on several different projects throughout the house.

Kienke indicated that the kitchen and back porch were in particular need of repair. He and English also discussed in general terms other areas of the house needing repair, including the front porch. Kienke was aware that a beam in the roof of the front porch was sagging, that the porch ceiling needed repairs, and that the posts supporting the porch had rotted. English agreed to repair the porch, and he and Kienke discussed the work to be done before English commenced the repairs. In performing the work, English usually used his own hand tools but also used a few tools belonging to Kienke, such as a power saw, a shovel, a tub to mix concrete in, and a roof jack.

After English had begun work on the porch, he asked Kienke to come to the house and inspect his progress. Kienke found that English had removed the entire bottom part of the porch. English explained to Kienke that he had found that the wood supporting the floor of the porch had rotted and that he had decided to replace the porch. Kienke told English to place two-by-four boards on the sides of the porch to support the roof but did not instruct him on precisely how to proceed. English installed the temporary supports, but two weeks later, while he was working on the porch, the roof collapsed, seriously injuring him. He later died from those injuries.

Daniel English filed this action as personal representative of the estate of Robert English, alleging three claims for relief against Kienke. The first alleged common law negligence. The second was under the Workers' Compensation Act, specifically Utah Code Ann. § 35-1-45, which authorizes a common law-type action by an employee against an employer who is required by the Act to obtain workers' compensation insurance coverage but fails to do so. Kienke did not carry any workers' compensation insurance on English. English's third claim was a demand for punitive damages, based on the assertion that Kienke had acted with knowing and reckless disregard of the law.

Kienke moved for summary judgment on the grounds that (1) a landlord cannot be held liable for injuries to a tenant which result from a hazardous condition created by the tenant, and (2) Kienke was not liable under section 35-1-45 because English was an independent contractor, not Kienke's employee. On plaintiff's first claim for relief, the trial court held that English was solely negligent as a matter of law and, on the second claim, held that English was an independent contractor, not an employee. Accordingly, the trial court entered summary judgment in favor of Kienke.

The court of appeals, relying on Stephenson v. Warner, 581 P.2d 567 (Utah 1978), and the Restatement (Second) of Torts § 355 (1965), held that a landlord is not liable for an injury caused by a dangerous condition created by a tenant and that because English created the dangerous condition that caused his death, he alone was negligent as a matter of law. English, 774 P.2d at 1157. The court also ruled that it was unnecessary to address the issue of whether English was Kienke's employee for purposes of the Workers' Compensation Act, because even assuming English was an employee under the Act, he could not recover in light of the court's conclusion that English was solely negligent. Id.

Plaintiff now contends that the court of appeals erred in not imposing upon defendant, by virtue of his status as a landlord and a landowner, and because of his superior knowledge of construction practices, the duty to apprise English of the gravity of the risk and to instruct him adequately how to eliminate that risk. Additionally, plaintiff asserts that the court of appeals erred in not concluding that English was an employee under the Workers' Compensation Act.

I. DUTY OF CARE

The court of appeals acknowledged that Williams v. Melby, 699 P.2d 723 (Utah 1985), modified the common law duty of care landlords owe to tenants with respect to hazardous conditions on leased premises. In Williams, we reviewed the development of the law, beginning with the early common law rule that a landlord was not liable to a lessee for physical harm caused by a dangerous condition on the land when the tenant took possession. We noted that with time, the general rule was modified to make landlords liable under certain circumstances for injuries resulting from dangerous conditions on leased premises. We specifically outlined four instances in which landlords could be held liable for hazardous conditions: (1) if the landlord had contracted to repair the premises; (2) if there was a hidden or latently dangerous condition which was known to the landlord and caused an injury; (3) if the premises were leased for purposes of admitting the public and a member of the public was injured; or (4) if part of the premises was retained under the landlord's control but was open to the use of the tenant. Id. at 726. None of these circumstances are present in the instant case. Not only was the dangerous condition here created by the tenant after he took possession, but Kienke warned English to adequately support the roof. In his deposition, Kienke testified that English replied to the warning, "I understand all that. I will do it all." Therefore, English had been apprised by Kienke of the dangerous condition of the roof when English removed the supports. We therefore find no error in the conclusion of the court of appeals that Kienke, as landlord, is not liable for an injury caused by a dangerous condition created by a tenant.

Plaintiff, however, asserts that Kienke owed English a duty not only as his landlord, but also as a possessor of land upon which English came to work. In this regard, plaintiff relies upon the Restatement (Second) of Torts § 343, which states:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

For the purposes of our analysis here, we will assume that Kienke was a "possessor" of land, although under section 328E of the Restatement, a possessor is one in actual physical possession. See id. § 328E. Kienke did not live on the property; it was a vacant rental unit in need of repairs and renovation. Kienke visited the premises only occasionally.

English was an invitee within the meaning of section 343. Section 332, comment "e" lists "a workman who comes to make alterations or repairs on land used for residence purposes" as an example of an invitee. This type of an invitee is called a "business visitor" by the Restatement because he or she "is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Id. § 332(3). ¹

Sections 343 and 343A of the Restatement impose on a possessor of land the duty to warn an invitee about two general types of hazards: (1) those that are present on the land when the invitee enters which the possessor should expect the invitee will not discover or realize, and (2) those that the possessor creates after the invitee's entry, such as in In re Wimmer's Estate, 111 Utah 444, 182 P.2d 119 (1947). Neither type is present here. English was an invitee (business visitor) who was...