Lemley v. Penner
| Citation | 230 Kan. 25,630 P.2d 1086 |
| Decision Date | 17 July 1981 |
| Docket Number | No. 50805,50805 |
| Parties | Troy E. LEMLEY, an infant By and Through Garland Lemley, his Guardian, Plaintiff-Appellee, and Garland Lemley, Plaintiff, v. Louis R. PENNER, Defendant-Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. Where a defect complained of is as discernible, upon reasonable investigation, to the tenant as it is to the landlord, there is no duty of disclosure owed by the landlord to the tenant. Following Tillotson v. Abbott, 205 Kan. 706, Syl. P 4, 472 P.2d 240 (1970).
2. Where injury occurs to a member of the tenant's family as a result of a patently dangerous condition on the leased premises, a landlord's liability to a member of the tenant's family is no greater than it would be to the tenant himself. Where a tenant knows of a defect and fails to protect the members of his family from it, the landlord cannot be held liable.
3. Rules governing appellate review of motions for directed verdict and judgment notwithstanding the verdict are stated.
Michael H. Farley, Prairie Village, argued the cause, and Andrew D. Lyons, Prairie Village, was with him on the brief for plaintiff-appellee.
Park McGee, Olathe, argued the cause and Robert Owen Watchous, Olathe, was with him on the brief for defendant-appellant.
Defendant-appellant, Louis R. Penner, appeals from a jury verdict in the amount of $8,000 in favor of Troy E. Lemley, plaintiff-appellee, for injuries sustained as a result of a fall through an interior wall of the house rented by the Lemley family from Penner. In an unpublished opinion, the Court of Appeals, --- Kan.App.2d ---, 622 P.2d 1009 affirmed the award of damages to Troy Lemley. We granted Penner's petition for review to resolve the issue of the landlord's liability.
Louis Penner purchased the house located at 405 Ottawa, De Soto, for rental property in 1948. No major repairs had been made to the house since its purchase, although from time to time Penner furnished paint and materials to the tenants or hired the work done. He personally had neither painted the walls nor cleaned the house after successive tenants had moved.
In 1972, Garland Lemley and his family learned the house was for rent and made inquiry of Penner. The Lemley family consists of Garland, his wife and three children, one of whom is Troy. They looked at the house, got the keys from Penner, returned to the house and inspected the interior. They rented the house for $75 a month pursuant to an oral lease. Penner made no representations regarding the condition of the house nor did the Lemleys request information as to its condition. The Lemleys made no suggestions to Penner that the house needed repairs until after the accident.
On November 24, 1973, the weather was bad and the children were home from school playing hide-and-seek inside the house. Troy hid in the living room closet. The closet wall broke through causing Troy to fall into the basement, striking his head and back. The rear wall of the closet was constructed with one thickness of fiberboard nailed to two-by-four studs on eighteen inch centers.
Troy sustained an injury described as aggravated spondylolisthesis for which he underwent surgery at a cost of $2800-$3000. Garland Lemley paid for the surgery. Dr. Nathan Schechter, M.D. testified further corrective surgery would be required on Troy. Dr. David W. Francisco, M.D. testified he did not believe additional surgery would be necessary but if it were needed, he estimated it would cost $2000.
Troy sued through his father to recover for his own injuries. Garland Lemley sued to recover the money he had already paid for Troy's surgery. Penner's motion for directed verdict at the close of the case was overruled and the case was submitted to the jury. The jury rendered a verdict for Troy Lemley in the amount of $8000. Garland Lemley was denied recovery due to his contributory negligence. Penner moved for judgment notwithstanding the verdict or a new trial. The court overruled the motions and this appeal followed.
Penner raises the same issues he raised before the Court of Appeals: (1) Whether the district court erred by overruling his motions for a directed verdict and for judgment notwithstanding the verdict; (2) whether the trial court erroneously refused to reduce the jury award of damages from $8000 to $5000 on the alleged ground that the jury's award to Troy Lemley included an amount for medical expenses incurred by Garland Lemley; (3) whether the trial court erroneously refused to grant a new trial on account of juror misconduct; and (4) whether the trial court erred by refusing to grant a new trial because of erroneous admissions of testimony and/or improper jury instructions.
The standard for appellate review on motions for directed verdict is well established: All facts and inferences reasonably to be drawn from the evidence must be resolved in favor of the party against whom the ruling is sought and if the evidence is such that reasonable minds could reach different conclusions thereon, the motion should be denied. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 228 Kan. 532, 539, 618 P.2d 1195 (1980); Care Display, Inc. v. Didde-Glaser, Inc., 225 Kan. 232, Syl. P 5, 589 P.2d 599 (1979); Frevele v. McAloon, 222 Kan. 295, Syl. P 5, 564 P.2d 508 (1977); Langhofer v. Reiss, 5 Kan.App.2d 573, 578, 620 P.2d 1173 (1980). Additional rules governing motions for directed verdict are stated in CIT Financial Services, Inc. v. Gott, 5 Kan.App.2d 224, 231, 615 P.2d 774, rev. denied 228 Kan. --- (1980).
Motions for judgment notwithstanding the verdict are governed by the same rules. Traylor v. Wachter, 227 Kan. 221, 607 P.2d 1094 (1980).
The parties agree the sole theory of recovery is for concealment of a dangerous condition. The case of Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975), discusses the rules with respect to recovery under that theory. In Borders, a social guest of the tenant sued the landlord to recover for injuries sustained when the guest slipped on ice formed by dripping water which accumulated because the landlord neglected to replace the guttering which had been removed from the roof on a prior occasion. Borders sued on the theory that a defective condition existed at the time the tenant took possession of the premises. The court stated the general rule that a landlord has no liability, either to the tenant or to others entering onto the land, for defective conditions existing at the time of the lease. This rule is based on the law that the lessee, as the person in possession, has the burden of maintaining the premises in a reasonably safe condition. Bailey v. Kelly, 93 Kan. 723, 145 P. 556 (1915). There are, however, exceptions to the rule exempting the landlord from liability for injuries arising from defective conditions existing at the time of the lease. The first exception, set forth in Restatement (Second) of Torts § 358 (1965), is as follows:
"(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.
The court listed several cases in which this exception had been applied and pointed out that the exception applied only "to latent conditions and not to conditions which are patent or reasonably discernible to the tenant." Borders, 216 Kan. at 489, 532 P.2d 1366.
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