Jerome Thriftway Drug, Inc. v. Winslow
| Decision Date | 02 April 1986 |
| Docket Number | No. 15549,15549 |
| Citation | 110 Idaho 615,717 P.2d 1033 |
| Court | Idaho Supreme Court |
| Parties | JEROME THRIFTWAY DRUG, INC., dba Hamilton Drug Center, Inc., an Idaho corporation, and L & M Securities, a partnership, Plaintiffs-Appellants, v. Everett WINSLOW and Erma Winslow, husband and wife, dba Wendell Department Store; Donald MacQuivey; James Trounson; Barbara James; Mary Trounson; Carolyn Trounson; Bonnie Trounson; Betty Trounson; Gordon Trounson, individually and as joint venturers or partners, Defendants-Respondents. |
Jeff Stoker, Twin Falls, Idaho, for plaintiffs-appellants.
J. Walter Sinclair, Twin Falls, for defendnats-respondents Everett and Erma Winslow.
John A. Doerr and Kevin F. Trainor (argued), Twin Falls, for defendants-respondents MacQuivey & Trounson.
This is an appeal from judgments entered in favor of owners of property and their tenants in an action brought by adjacent property owner to recover for damages sustained when a fire in defendants' building spread to plaintiffs' adjoining property. We affirm.
A building complex in Wendell, Idaho, housed a drug store, a department store, and three doctors' offices. Plaintiffs-appellants (hereinafter Hamilton Drug), owned and operated the Hamilton Drug Store which occupied the southern portion of the complex. the Wendell Department Store was adjacent to the drug store, and the two buildings shared a common wall. The department store had been built by and had been in the MacQuivey-Trounson family for many years. The defendants Winslows had been tenants in the department store building since 1978. The northern side of the complex contained three separate doctors' offices. The entire complex was bordered by two streets and two alleys.
The entire complex was gutted and destroyed by a fire discovered at about midnight, December 11, 1981. Firefighters arrived at the scene within two and one-half minutes, and as they arrived the front windows of the department store blew out in what is known as a "flashover."
Wendell Fire Chief Hosack investigated the occurrence, opined that the fire had been burning two to three hours before discovery, and, based on the age of the building, believed it was electrically caused. State Fire Investigator Capaul opined that the fire started on the south wall of an office in the rear of the department store in a four-unit electrical outlet.
Hamilton filed this action alleging that the fire originated in the department store as a result of faulty and poorly maintained wiring and electrical equipment, and that each of the defendants-respondents knew or should have known of the inadequate electrical conditions. It was alleged that defendants-respondents were negligent in failing to have or maintain adequate fire safeguards and equipment in the building, and were negligent per se, being in violation of fire safety and building codes. An amended complaint contained an additional allegation of arson. Defendants-respondents' answer alleged comparative negligence on the part of Hamilton and counterclaimed that Hamilton negligently caused the fire.
After a portion of the discovery was completed the owners-landlords of the department store moved for summary judgment, asserting that if there was any liability it would be solely of the tenants of the department store. That motion for summary judgment was granted, and the court also granted summary judgment for the tenants of the department store on the arson allegations. Hamilton's request for prejudgment interest was also denied. Partial summary judgment was granted to Hamilton on defendants' counterclaim that plaintiffs had negligently caused the fire. However, the court refused summary judgment on the allegations that Hamilton was chargeable with comparative negligence.
Trial ensued as to the remaining issues as between the Winslows (tenants) and Hamilton, and the jury returned a unanimous verdict in favor of Winslows. Hamilton Drug appeals asserting the error in the granting of summary judgment to the landlords, certain pretrial orders, evidentiary rulings and jury instructions, and other errors in the conduct of the trial.
We address first the summary judgment granted the landlords. It is clear that summary judgment can be granted only when the pleadings, depositions and affidavits indicate that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c). At the time of summary judgment the court had before it uncontroverted evidence indicating that the lease agreement made no provision for the landlords to repair the leasehold and that no repairs of the leasehold were ever undertaken by the landlords. The manager for the owners had been in the department store premises numerous times, had observed no defects which would have caused the fire, and specifically noted no defects in the electrical system. No defects were ever brought to his attention. Affidavits of the other owners were similar in effect. The tenants Winslows testified that they were not aware of any electrical problems or defects in the buildings. No definite cause of the fire was established in any of the depositions or affidavits. The testimony of the Wendell fire chief indicated that while he did not have an opinion as to the source of the fire or its origin, that he did feel that it was electrically caused on the basis of "the building as a whole." The state fire investigator opined that the fire had started on the south wall of the department store in a four-unit outlet. That outlet was installed at the request of the tenants by electrician Taylor who described the wiring in the building as being archaic.
This Court has not addressed the question of whether or when a lessor is liable to an adjacent landowner for damages caused by a condition or activity on leased property. Prosser and Keeton on the Law of Torts § 63 (1984), and Restatement (Second) of Torts § 356(a), state the general rule that when property is leased to a tenant the lease is regarded as equivalent to a sale of the premises for the term and hence there is a general rule of non-liability on the lessor. Exceptions have evolved, and it is urged by appellants that Restatement (Second) of Torts § 373 should have been applied by the district court in the instant case. In pertinent part that portion of the Restatement states:
§ 373. Dangerous Conditions Created Before Vendor Transfers Possession
(1) A vendor of land who has created or negligently permitted to remain on the land a structure or other artificial condition which involves an unreasonable risk of harm to others outside of the land, because of its plan, construction, location, disrepair, or otherwise, is subject to liability to such persons for physical harm caused by the condition after his vendee has taken possession of the land.
It is argued by Hamilton that the condition of the electrical wiring in the building, coupled with the alleged inadequate fire protection safeguards, raised a question of fact as to whether the condition of the building created an unreasonable risk of harm to Hamilton, and hence summary judgment was improperly rendered.
Respondents, on the other hand, assert that §§ 377-379A are applicable to the instant circumstances. Section 377 states:
§ 377. Dangerous Conditions Arising After Lessor Transfers Possession: General Rule
Except where he contracts to repair, a lessor of land is not liable to others outside of the land for physical harm caused by any dangerous condition on the land which comes into existence after his lease has taken possession.
Comment (c) to § 377 indicates that this rule "applies to any condition which comes into existence after the lessor has given possession to his lessee, irrespective of whether it is caused by dilapidation through lapse of time, by a force of nature, or by the act of the lessee or a third person."
In Boise Car v. WACO, 108 Idaho 780, 702 P.2d 818 (1985), this Court held that § 373 of the Restatement (Second) of Torts imposed a more far-reaching liability upon vendors of real property than the Court had formerly been willing to adopt, and refused to adopt it in that case. We also find it unnecessary to adopt the Restatement provisions urged by the respondents, since in any case Hamilton Drug has not made a sufficient factual showing in support of any theory of recovery. Here there was no evidence that the landlords knew or should have known of a defective condition and in fact defendants-respondents-owners expressly denied any knowledge of any defective condition. Further, there was simply no evidence of the existence of a defective condition. Although the electric wiring in the building was described as "archaic," such does not necessarily make it defective.
While motions for summary judgment should be granted with caution, Bailey v. Ness, 109 Idaho 495, 708 P.2d 900 (1985), the adverse party must set forth specific facts showing that there is a genuine issue for trial. I.R.C.P. 56(e). Unsupported general or conclusory allegations are not sufficient in the face of a motion for summary judgment, and here there was simply no evidence presented upon which the issue of the landlords' liability could have been submitted to the jury.
We hold that summary judgment on the issue of negligence per se was also properly granted to the landlords. Violation of an applicable statutory prohibition or ordinance constitutes negligence per se, but the violation of the applicable statute or ordinance must be the proximate cause of the injury of which the plaintiff complains. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984); Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983). Here the evidence failed to reveal the actual cause of the fire, but even assuming that the fire was caused by electrical wiring, the wiring must have been in violation of a statute or ordinance. The record indicates that older buildings such as the...
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