Henderson v. W. C. Haas Realty Management, Inc.

• Decision Date: 05 December 1977
• Docket Number: No. KCD,KCD
• Citation: Henderson v. W. C. Haas Realty Management, Inc., 561 S.W.2d 382 (Mo. App. 1977)
• Parties: Sharon HENDERSON et al., Appellants, v. W. C. HAAS REALTY MANAGEMENT, INC., et al., Respondents. 28008.
• Court: Missouri Court of Appeals

Page 382

561 S.W.2d 382

Sharon HENDERSON et al., Appellants, v.W. C. HAAS REALTY MANAGEMENT, INC., et al., Respondents.

No. KCD 28008.

Missouri Court of Appeals, Kansas City District.

Dec. 5, 1977.

Motion for Rehearing and/or Transfer Denied Jan. 30, 1978.

Application to Transfer Denied March 13, 1978.

Lloyd S. Hellman, Kansas City, for appellants; Achtenberg, Sandler, Balkin & Hellman, Kansas City, of counsel.

Glenn E. McCann and Stephen D. Manz, and John H. Foard, Kansas City, for respondents; Knipmeyer, McCann, Fish & Smith, and Foard & Foard, Kansas City, of counsel.

Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.

PRITCHARD, Presiding Judge.

Upon their submission to the jury by InstructionNo. 2 of their theory of breach of an implied warranty of habitability, appellants recovered separate verdicts for fire losses against respondents as follows: Millie Shaffer, personal injuries, $2,000.00, property damage, $6,916.00; Sharon (Henderson) Parr, property damage, $13,200.00; and Billie and Virginia Putnam, property damage, $10,000.00.Appellants were tenants in the Monticello Manor Apartments, 8335-8337 Lowell, Overland Park, Kansas, owned by individual respondents, William C. Haas, William S. Halverhaut, and Irene D. Ellege, and which was managed by respondent, W. C. Haas Realty Management, Inc.The 20-unit apartment was destroyed by fire on October 10, 1971.

The trial court sustained respondents' after-trial motion for judgment notwithstanding the verdicts, and entered judgment for respondents in accordance with their motion for directed verdict made at the close of all the evidence.As relevant to the submission of InstructionNo. 2, paragraph 3 of the motion is: "Plaintiffs' evidence fails to make a submissible case against defendants on the grounds that defendants are liable for breach of implied warranty and that such breach caused plaintiffs' damages."

The 8335-8337 Lowell building faced west, and there was a fire wall separating the 10 units on the north (8335) from the 10 units on the south (8337), which was the portion south of the fire wall, where all appellants lived.The buildings were all electric for heating, cooling and cooking facilities. 8337 had 4 apartment units on the ground level, one in each quadrant; 4 apartment units on the second floor; and 2 basement apartment units which had windows on the east or back side of the building.To the west of the two basement apartments were common areas for storage, coin operated washing machines, fuse boxes and walkways.

William Brown, of Control Service Company, was called on an emergency basis on Saturday night, October 9, 1971, because there was no heat in the 8335-8337 building.Working from 5:00 p. m. until 9:00 to 10:00 p. m. that night, he replaced a 200 amp fuse in the boiler, locating no problem, and the heating unit was cycled through 4 to 5 functions, taking only 4 to 5 minutes per cycle.The system was switched from cooling to heating at that time.

Millie Shaffer was the first to discover the fire shortly before 5:00 a. m., October 10, 1971, when she heard a sound like chains rattling at her front door.She lived in the basement apartment, northeast quadrant, adjacent to the fire wall.When she got out of bed and reached her living room, Millie found it full of smoke and heard "snapping, popping, cracking and roaring" overhead.She aroused her children and went to the door of her apartment leading to an inner hallway, but was driven back by black smoke which billowed into her apartment.She saw no flame at all.Two of her children had made it to the outside, and Millie and another child escaped through a back basement window to a parking lot.Millie left the area to deposit her children with a friend, and returned at 6:00 a. m. She later saw the front, west quadrant, of the building collapse, which was over the laundry and storage area.

Audrey Nelson lived on the first floor northwest, just over the washing machine and storage areas of the basement.She was awakened by a clanging sound in the floor.She got out of bed and felt heat in the floor.The inner hallway from her apartment door was filled with rolling smoke as was her living room.She saw no flames.Water pipes from overhead in the kitchen had burst and hot water was coming from overhead.She opened her apartment front door again, but was met with intense heat which burned her eyebrows, face and hair.With the aid of a hammer, she opened her front window and screen and escaped.

The Putnams, occupying the first floor apartment southeast, were awakened by the rattling and banging of pipes.Mr. Putnam opened the door to their apartment and saw the hallway full of smoke.He closed the door and the two escaped through their balcony, then dropping down to the sloping driveway to the parking lot.Mr. Putnam saw flames at 9:30 a. m. which were then in the basement of the laundry area.

Overland Park Fire Chief, James Broockerd, arrived at the scene at 5:00 a. m., and saw that the front whole hallway, about 8 feet wide, which ran from the front to the rear of the building "was involved in, the flame was just rolling in there and . . . " This meant that the flames were generating a lot of heat, but the flames were knocked down with two 11/2 inch hoses in less than 30 seconds.Later, Chief Broockerd opened the basement door and then knew where the fire was because he could hear it popping and cracking to his right, or northwest, which was the washing machine and storage area.The firefighters reported that the fire was above them in the basement lapping or seeping out of the sheetrock here and there.From the color of the smoke, Chief Broockerd testified that it was a wood and insulation fire, and he determined that the fire was running through the floors and up through the walls, but it was not visible for over two hours, as confirmed by the resultant collapse of the building.After two hours, the floor of the first floor apartment northwest, above the laundry and storage area, first fell in, and then the first floor southwest fell in.From all the facts, Chief Broockerd determined that the fire had been in the basement inter-ceiling area in the northwest corner (8337) above the storage and laundry common area.He testified further: "Q Chief, now, of the electric wires, the water pipes and vent pipes that run through the floors and up the walls, which one of those systems is capable of starting fires?A Well, just the electric ones.Q Now, if this is an all electric building, with electric water heaters in each one with wires running through the walls and to each and every apartment, does that have a tendency to increase the amount of wires in that building?A Yes, sir, it would."

The Fire Captain's report contained this statement: "The cause is unknown, but the fire started in the basement ceiling and spread through the floors and into the walls and the attic, there was no visible fire in any part of the building until it started collapsing."A report concerning unburned items in the basement stated that no (storage) locker showed burning from doors down to the floor, and that a metal trash container contained an unburned Snowy Bleach box and dryer lint.

The heating system in the building was a chilled or heated water system running throughout the building, with an electric blower in each apartment.There was an outside compressor and thermometer which regulated the use of hot or cold water.Air conditioning problems had existed in the summer on four occasions up to September 1 when the compressor controls were jumpered to go around a defective compressor.

Without doubt an implied warranty of habitability of leased premises exists in present day law as to the relation between landlords and tenants.SeeSteele v. Latimer, 214 Kan. 329, 521 P.2d 304(1974);King v. Moorehead, 495 S.W.2d 65(Mo.App.1973); and importantly, the extensive analysis in Old Town Development Company v. Langford, 349 N.E.2d 744(Ind.App.1976)(wherein the petition for transfer to the Indiana Supreme Court was dismissed by stipulation on September 26, 1977).

The determinative issue here is, however, whether appellants made a submissible case of a breach of an implied warranty of habitability of the apartments where they resided prior to the fire of October 10, 1971.The first facet of this issue is whether appellants proved the cause of the fire from a defective condition (wiring) in the common areas of the apartment complex.The second facet is whether respondents(landlords and manager corporation) had, or were required to have, constructive notice or knowledge of any defect in the premises (wiring) under the theory of implied warranty of habitability of the leased premises.

As to the first facet, appellants urge a theory akin to the doctrine of res ipsa loquitur cases, applicable in proved circumstances under the leading case of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559(1)(Mo.banc 1932), and the many cases following it, to create an inference of negligence.Appellants say, in effect, that the same consideration of circumstances creates an inference as to the existence of a defect, and hence an inference of a breach of an implied warranty of habitability of the premises in question.It is unnecessary here to treat an extension of the res ipsa doctrine to warranty cases.In Frumer and Friedman, Products Liability, § 16.03(4)(b)(i), it is said, "We discussed in § 11.01supra the drawing of reasonable inferences in connection with causation in fact in negligence cases, pointing out that negligence and causation in fact are sometimes confused by the courts.Obviously, the same reasonable inferences as to causation in fact may be drawn in warranty cases, as are drawn in negligence cases.The courts have said that the doctrine of res ipsa loquitur relates to cases involving negligence and has no application to an alleged breach of warranty.But, as discussed in § 16.01(1)supr...