KITCHENS BY AND THROUGH KITCHENS v. United States

• Decision Date: 06 March 1985
• Docket Number: Civ. A. No. 83-T-1290-N.
• Citation: 604 F. Supp. 531
• Parties: Eric Ashley KITCHENS, a minor, suing By and Through his father and next friend, Darrel KITCHENS, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Alabama

604 F. Supp. 531

Eric Ashley KITCHENS, a minor, suing By and Through his father and next friend, Darrel KITCHENS, Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. A. No. 83-T-1290-N.

United States District Court, M.D. Alabama, N.D.

March 6, 1985.

COPYRIGHT MATERIAL OMITTED

J. Paul Lowery, Montgomery, Ala., for plaintiff.

John C. Bell, U.S. Atty., Kenneth C. Vines, Asst. U.S. Atty., Montgomery, Ala., for defendant.

ORDER

MYRON H. THOMPSON, District Judge.

Plaintiff Eric Ashley Kitchens, a child, has brought this lawsuit against defendant United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680. He claims that the United States is liable for a fall he suffered at a military base in Montgomery, Alabama. Based on the evidence presented at a non-jury trial limited to the issue of liability, the court concludes that the United States is liable for the child's fall.

I.

Eric, now nearly nine years old, is the son of U.S. Air Force Sergeant Darrell Kitchens and his wife. In April 1981, the Kitchenses lived in noncommissioned officers quarters at Maxwell Air Force Base in Montgomery, Alabama, where Sergeant Kitchens was stationed. The Kitchenses lived in an area of identical buildings each of which has two apartments side-by-side. A notable feature of the buildings is a garage underneath each apartment with a cement ramp leading up through the backyard to the street. Each ramp has a metal railing on either side, consisting of four vertical posts and two horizontal bars attached to the building at one end. Each building shares a backyard with its neighbors on either side. The Kitchenses' apartment shared a yard with that of the family of Sergeant Claude Kennedy.

On April 25, 1981, Eric was playing with one of the Kennedy children and another neighbor's child in the backyard between the Kitchenses' and the Kennedys' apartments when Eric suffered a fall. Standing at the railing of the Kennedys' garage, he grabbed hold of the top horizontal bar at the section nearest the building. The bottom horizontal bar at this section was not in place. Eric fell through the gap in the railing created by the missing section and landed on the cement pavement below.

The Air Force houses over one thousand families at two bases and one annex in Montgomery, of which Maxwell Air Force Base is the largest. Air Force personnel and their families choose between living on or off the base. If they choose to live off the base, they receive a housing allowance which they forego if they choose to live on the base. Air Force regulations and agreements signed by personnel living on the base establish conditions governing their occupancy. Occupants of base housing agree to give thirty-days notice before leaving; correspondingly, the Air Force agrees not to evict occupants without cause. Housing is allotted according to rank and family size; occupants must notify the Air Force when these factors change or when they are stationed elsewhere so that they can be allotted new housing.

With regard to the maintenance of housing, occupants agree to undertake the duties of homeowners. They are responsible for minor repairs and must maintain their yards in proper condition. The base housing manager regularly inspects the yards and notifies occupants of deficiencies. When in need of assistance with repairs, occupants are to call on the base civil engineer who provides a maintenance service. This service is provided by a staff of military personnel. In addition, in April 1981, the base civil engineer contracted with a private contractor to make certain repairs. Repairs "within the contract" were handled by the contractor, while those "outside the contract" were handled directly by the base civil engineer, that is by military personnel. Both the contractor and base civil engineer operated service desks where residents could report problems. Finally, the Air Force operated a safety office to investigate potentially hazardous conditions on the bases.

A few days before Eric fell, Sergeant Kennedy had seen the bottom horizontal bar detached from his building, though not fallen out completely. He called Air Force personnel at least once to report the problem, but no one came to fix it.

Also, this particular section of the railing had detached in this way many times before, and on two or three prior occasions had fallen out completely, as it had before Eric fell. Neighbors were even aware of the defective railing. Each time the railing became defective, the Kennedys reported the problem to the Air Force and someone tried to fix it. Air Force personnel testified that they considered such missing railings as serious and urgent problems.

II.

According to the Federal Tort Claims Act, the court is to determine liability by applying the appropriate law of the forum state. 28 U.S.C.A. §§ 1346(b), 2674. See Massey v. United States, 733 F.2d 760 (11th Cir.1984). Thus, the court must determine whether under Alabama law the United States owed Eric Kitchens a duty of care, the breach of which caused his fall. See Quillen v. Quillen, 388 So.2d 985, 988 (Ala.1980).

Under Alabama law, "a landowner's duty to one upon his premises depends upon the status of the latter with regard to the land," that is, whether the latter is, for example, a trespasser, a licensee, an invitee, or a tenant. Frederick v. Reed, 410 So.2d 95, 97 (Ala.Civ.App.1982). In Alabama, a trespasser is one who enters land without the owner's permission. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). A licensee is one who enters land with the owner's permission, most typically as a social guest. Frederick v. Reed, 410 So.2d 95, 97 (Ala. Civ.App.1982). An invitee, on the other hand, enters with permission but also to bestow some material benefit on the landowner. Quillen v. Quillen, 388 So.2d 985, 988 (Ala.1980). A tenant has additional, more substantial connections with the land and the landowner. "An invitee is a visitor, a transient.... A tenant, on the other hand, does not merely visit, but acquires an interest in the property, including the exclusive legal possession of the leased premises." Osborn v. Brown, 361 So.2d 82, 87 (Ala.1978) (citations omitted).

Alabama courts have found a variety of factors to establish a landlord-tenant relationship even absent the parties' explicit agreement, as most typically in a lease. Exclusive legal possession, as stated, is such a factor. See Rehfuss v. McAndrew, 33 So.2d 16, 18 (Ala.1947). "The payment and receipt of rent has been held to establish the relationship of landlord and tenant." Osborn v. Brown, 361 So.2d 82, 87 (Ala.1978); see also Hackney v. Griffin, 244 Ala. 360, 13 So.2d 772 (1943). In King v. Reid, 428 So.2d 611 (Ala.1983), an agreement simply to pay the taxes and insurance in return for permission to stay in the premises created a landlord-tenant relationship. Id. at 614.

Weighing these factors in light of the evidence, the court finds that the United States had a landlord-tenant relationship with the occupants of the noncommissioned officers family housing. The evidence was that the occupants forewent a housing allowance in order to live at Maxwell Air Force Base and that the Air Force had the benefit of this allowance. For this, the occupants obtained exclusive legal possession of their apartments. The Air Force agreed not to evict them without reasonable cause. The occupants agreed to maintain the apartments and the yards. That they could leave with thirty-days notice did not mean that they were not tenants. See Marcrum v. Embry, 291 Ala. 400, 282 So.2d 49, 52 (1973). Indeed, the Air Force required that the occupants undertake the duties of homeowners.

Accordingly, at the time Eric fell through the partially missing railing, the United States owed the Kennedys and the Kitchenses that duty of care owed tenants. As the child of a tenant and the guest of another tenant, Eric enjoyed the protections of tenants under Alabama law. Uhlig v. Moore, 265 Ala. 646, 93 So.2d 490, 492 (1957) (landlord owes a tenant's guest the same duty of care owed the tenant).

III.

Having determined what relationship Eric and the United States had, the court must consider what duties the relationship imposed on the United States. A landlord in Alabama may have various obligations to a tenant; however, most depend on the landlord's explicit agreement or affirmative conduct. Unlike many states, Alabama recognizes no implied warranty of habitability in residential leases. Martin v. Springdale Stores, Inc., 354 So.2d 1144, 1145-46 (Ala.Civ.App.1978). Thus, a landlord is responsible for defects in the premises only in limited circumstances. One is with hidden defects existing before the tenancy of which the landlord has knowledge, Taylor v. Leedy and Co., Inc., 412 So.2d 763 (Ala.1982), and the tenant does not. Cohran v. Boothby Realty Co., 379 So.2d 561 (Ala.1980). Another is where the defect is in an area where the landlord has retained control. Hancock v. Alabama Home Mortgaging Co., 393 So.2d 969, 970 (Ala.1981). In addition, the landlord is responsible if he affirmatively agrees to make repairs. Martin v. Springdale Stores, Inc., 354 So.2d 1144, 1146 (Ala.Civ. App.1978). This may result from a general express warranty or a single instance where the landlord undertakes repairs. Thus, although "a landlord is not an insurer of the safety of the premises," it is well settled that "`where the lessor, under no duty to repair, voluntarily undertakes so to do, he is liable for injuries proximately caused by negligence in so making repairs....'" Dunson v. Friedlander Realty, 369 So.2d 792, 795 (Ala.1979), quoting Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 244 Ala. 308, 13 So.2d 182, 186 (1943).

The defect involved in Eric's fall was the loose bottom horizontal bar in the railing around the Kennedys' garage. This certainly was not a hidden defect, and there is no evidence that it existed when the Kennedys moved in....