Majewski v. Cantrell, 87-118

• Decision Date: 19 October 1987
• Docket Number: No. 87-118,87-118
• Citation: 737 S.W.2d 649,293 Ark. 360
• Parties: Helen MAJEWSKI, Appellant, v. Leona CANTRELL and Frank B. Henslee, Appellees.
• Court: Arkansas Supreme Court

Page 649

737 S.W.2d 649

293 Ark. 360

Helen MAJEWSKI, Appellant, v. Leona CANTRELL and Frank B. Henslee, Appellees.

No. 87-118.

Supreme Court of Arkansas.

Oct. 19, 1987.

R.W. Laster, Little Rock, for appellant.

Jones & Petty, Pine Bluff, Everett Martindale, Little Rock, for appellees.

GLAZE, Justice.

Appellant, Helen Majewski, owned a building that she leased to appellee, Frank B. Henslee, who used the building to operate a take-out seafood business and a catfish restaurant. On October 19, 1983, appellee, Leona Cantrell, an employee of Henslee, injured her back by slipping and falling on a wet spot on the restaurant kitchen floor. In December 1984, Cantrell sued Majewski, alleging the wet, slippery floor was caused by rainwater that entered through the building's roof, which Majewski negligently failed to repair. Majewski answered, denying liability, and moved for summary judgment, which was denied; she then filed a cross-complaint against Henslee, alleging he was responsible for repairs and maintenance to the building. Henslee answered and counterclaimed against Majewski. After a two-day trial, the jury found against Majewski, awarding $125,000 in damages to Cantrell and granting $1,250 to Henslee on his counterclaim.

Appellant appeals, arguing the court erred in denying (1) her motion for summary judgment; (2) her motion for a directed verdict at the conclusion of the testimony; and (3) her motion for judgment n.o.v. and a new trial. She also urges the jury's award to Cantrell was excessive. We affirm.

Majewski's first three points for reversal are premised on her claim that, at the time Cantrell was injured, no lease agreement existed between Henslee and Majewski requiring her to repair and maintain the building's roof. She argues the initial-written lease with Henslee, under which Majewski agreed to make such repairs, had long expired. Majewski contends that, upon that lease's expiration, Henslee became a month-to-month tenant to whom she owned no duty of repair.

Majewski is correct that a lessor, under common-law rule that Arkansas follows, owes no duty of repair of the premises to the lessee; but it is also true that a landlord, who agrees to such repairs, can be held liable for them. See Hurst v. Field, 281 Ark. 106, 661 S.W.2d 393 (1983).

While Majewski argues otherwise on appeal, the proof presented below reflects she had agreed to repair and maintain the roof. Henslee testified such an agreement existed, and Majewski never denied it. ¹ In fact, Majewski admitted she had sent a worker to fix the roof on numerous occasions both before and after Cantrell's fall. Clearly, the record belies Majewski's argument that she had no agreement or duty to repair the tenant's (Henslee's) roof.

Even assuming she entered such an agreement, Majewski contends Cantrell was only a licensee to whom Majewski owed a duty of care not to willfully or wantonly injure. See Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968). Based on that premise, Majewski further argues the evidence was wholly insufficient to support a jury's finding that she was guilty of willful and wanton conduct. The sufficiency of evidence question not withstanding, Majewski is wrong on the law regarding the duty she owed Cantrell, an injured-third-party employee of Henslee.

Early Arkansas case law recognized that an owner-lessor, who agreed to furnish all repairs, could be found negligent and liable to an injured third party. See Collison v. Curtner, 141 Ark. 122, 216 S.W.2d 1059 (1919). The majority rule, which controls the facts here, is best set forth in the Restatement (Second) of Property § 17.5:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a condition of disrepair existing before or arising after the tenant has taken possession if: (1) the landlord, as such, has contracted by a promise in the lease or otherwise to keep the leased property in repair; (2) the disrepair creates an unreasonable risk to persons upon the leased property which the performance of the landlord's agreement would have prevented; and (3) the landlord fails to exercise reasonable care to perform his contract.

See also Restatement (Second) of Torts § 357 (1965); W. Keaton, Prosser and Keaton on Torts § 63 (5th ed. 1984); J. Page, The Law of Premises Liability § 9.8 (1976).

The court gave instructions to the jury which correctly stated the...