Marcellus v. K.O.V., Inc.

• Decision Date: 22 August 1980
• Docket Number: No. 51700,51700
• Citation: 5 Kan.App.2d 339,615 P.2d 170
• Parties: Glen MARCELLUS, Appellant, v. K.O.V., INC., et al., Appellees.
• Court: Kansas Court of Appeals

Page 170

615 P.2d 170

5 Kan.App.2d 339

Glen MARCELLUS, Appellant, v. K.O.V., INC., et al., Appellees.

No. 51700.

Court of Appeals of Kansas.

Aug. 22, 1980.

Syllabus by the Court

1. A lessee is liable for damages to the leased premises caused by the negligence of a sublessee under the lessee's implied obligation to act reasonably in handling the leased property so that no injury will result to it.

2. A petition which alleges a lease and injury to the premises caused by the negligence of the tenant's sublessee states a cause of action against the tenant.

Robert M. Miles, Liberal, for appellant.

Tom R. Smith of Frey, Smith & Schmidt, Liberal, for appellee K.O.V., Inc.

Before FOTH, C. J., and REES and SPENCER, JJ.

SPENCER, Judge:

Plaintiff has appealed from summary judgment entered in favor of defendant. An agreed statement of facts reveals:

"On February 26, 1979, a fire occurred in a building at 633 South Kansas in Liberal, Kansas. The building was owned by Glen Marcellus and was leased to K.O.V., Inc. under an oral lease agreement that contained only two (2) provisions: (1) the lessee pay rent of Six Hundred Dollars ($600.00) per month and (2) the lessee was responsible for the maintenance of the building.

"The fire developed in a workshop in the building and resulted in damage estimated at Three Thousand Nine Hundred Seventy-Seven Dollars and Two Cents ($3,977.02).

"The Plaintiff instituted suit against K.O.V., Inc. and K.O.V., Inc. as Defendant filed a specific denial and a Third-Party Petition.

"K.O.V., Inc. also filed Interrogatories that were answered by the Plaintiff. Upon receipt of the answers to the Interrogatories, K.O.V., Inc. filed a Motion for Summary Judgment for failure of the Plaintiff to state a cause of action on the grounds that the Plaintiff's Petition alleged negligence against the Defendant K.O.V., Inc. and the answer to Interrogatory No. 6 by the Plaintiff stated that the fire was caused by the negligence of one Mike King, a sublessee of the Defendant K.O.V., Inc.

"At the hearing on the Motion for Summary Judgment the trial court heard argument from both counsel and reviewed the pleading and the interrogatories in the file and the trial court found that the Plaintiff's Petition failed to state a cause of action against the Defendant K.O.V., Inc. and on the 22nd day of October, 1979, the trial court entered judgment on behalf of K.O.V., Inc."

Plaintiff contends summary judgment was improper and argues a lessee is liable for damages to the leased premises caused by the negligence of a sublessee under the lessee's implied obligation to act reasonably in handling the leased property so that no injury will result to it.

A sublease creates the relation of landlord and tenant between the lessee and subtenant. The lessee stands as a buffer between the landlord and subtenant. Between landlord and subtenant there is no privity of either estate or contract. A tenant is, in general, responsible for the acts and omissions of his subtenant. 51C C.J.S. Landlord & Tenant § 45(2); 1 Freidman on Leases § 7.702 (1st ed. 1974). The following is found in 49 Am.Jur.2d, Landlord and Tenant § 501, p. 483:

"A lessee is liable for damages to the leased premises caused by the negligence of a sublessee, under the lessee's implied obligation to use reasonable diligence in treating the property demised so that no injury will result to it, particularly where the lease provides that no subletting shall release the lessee from any obligations under the lease. This rule has been applied to the destruction of the property by fire through a sublessee's negligence."

While no Kansas case appears on point, our decisions have recognized that independently of express covenant, the law imposes on a tenant the obligation to return the premises to the landlord at the end of the term unimpaired by the negligence of the tenant. New Hampshire Ins. Co. v. Fox Midwest Theatres, Inc., 203 Kan. 720, 724, 457 P.2d 133 (1969); In re Estate of Morse, 192 Kan. 691, 695, 391 P.2d 117 (1964); Salina Coca-Cola Bottling Corp. v. Rogers, 171 Kan. 688, 691, 237 P.2d 218 (1951).

It is undisputed that defendant-tenant subleased the premises in question to Mike King. The substance of the agreement between defendant and King does not appear of record. It is likewise undisputed that King's negligence was the cause of the damage for which plaintiff seeks relief. Plaintiff's petition alleges the lease between plaintiff and defendant and states that damage to the premises resulted because of negligence. Defendant argues a landlord cannot hold a tenant liable on a theory of negligence when the negligent act complained of was the act of a sublessee.

A similar situation is reported in the case of Casualty Co. v. Oil Co., 265 N.C. 121, 143 S.E.2d 279 (1965). In that case, a lease existed between certain...