Miller v. David Grace, Inc., No. 104,313.

• Court: Supreme Court of Oklahoma
• Writing for the Court: Colbert
• Citation: 212 P.3d 1223,2009 OK 49
• Parties: Lora Ann MILLER, Plaintiff/Appellant, v. DAVID GRACE, INC., David Grace, individually, and First Choice Management, Defendants/Appellees, and Satca, Ltd., Parent Company of River Chase Apartments, and First Choice Properties, Inc., Defendants.
• Decision Date: 30 June 2009
• Docket Number: No. 104,313.

212 P.3d 1223 2009 OK 49 Lora Ann MILLER, Plaintiff/Appellant,
v.
DAVID GRACE, INC., David Grace, individually, and First Choice Management, Defendants/Appellees, and
Satca, Ltd., Parent Company of River Chase Apartments, and First Choice Properties, Inc., Defendants. No. 104,313. Supreme Court of Oklahoma. June 30, 2009.

[212 P.3d 1225]

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 3

¶ 0 Tenant instituted a negligent maintenance and construction action against landlord and contractor respectively, for personal injuries sustained when tenant fell from her second story balcony after the balcony railing collapsed. The District Judge of Oklahoma County, Honorable Patricia G. Parrish, granted summary judgment in favor of landlord and contractor. The Court of Civil Appeals affirmed the trial court's ruling as to landlord based on the holdings in Godbey v. Barton, 1939 OK 19, 86 P.2d 621, Alfe v. New York Life Ins. Co., 1937 OK 243, 67 P.2d 947, and similar cases premised on the common law rule of landlord tort immunity; but reversed as to contractor.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; AND MATTER REMANDED FOR FURTHER PROCEEDINGS.

Rex Travis, Paul D. Kouri, Oklahoma City, for Plaintiff.

C. William Threlkeld, C. Todd Ward, Brion B. Hitt, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for Defendant/Appellee First Choice Management.

Victor F. Albert, Conner & Winters, LLP, Oklahoma City, for Defendants/Appellees David Grace and David Grace, Inc.

COLBERT, J.

¶ 1 On December 29, 2008, this case was assigned to this office. This is a negligent maintenance and construction action initiated by a tenant against her landlord and a contractor after the tenant fell from her second story balcony due to a defectively installed balcony railing. The district court granted the landlord's and contractor's motions for summary judgment based on the traditional common law rule that holds a landlord harmless for injuries occurring on the leased premises and held that the danger was open and obvious. The appellate court affirmed the judgment in favor of the landlord but reversed the judgment in favor of the contractor because factual questions remain as to the tenant's knowledge of the dangerous condition and whether the danger was open and obvious. We hold that summary judgement was inappropriate as to both defendants and adopt the view embraced by other jurisdictions which imposes a general duty of care upon landlords to maintain the leased premises in a reasonably safe condition, including areas under the tenant's exclusive control or use.

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I. BACKGROUND AND PROCEDURAL HISTORY

¶ 2 On July 29, 2002, Plaintiff, Lora Ann Miller (Tenant) moved into the River Chase Apartments owned and operated by First Choice Management (Landlord).¹ The unit was located on the second floor and contained a wooden balcony deck and U-shaped metal guardrail. At Landlord's request, Tenant was instructed to inspect the unit to determine if "anything was wrong with [the unit]" and convey her findings to Landlord. During Tenant's inspection, Tenant discovered the balcony railing was loose.

¶ 3 Tenant testified by deposition that she believed her balcony was dangerous and "maybe somebody was going to fall." According to Tenant, the balcony railing was loose because it was missing a screw and the railing was not "metaled" to the wall. Tenant advised the apartment manager of the defects on at least two occasions. Allegedly, the manager advised Tenant that "she would help [Tenant] take care of it"; however, no repairs were ever made. Unbeknownst to Tenant, the railing was also missing additional screws on the other side of the balcony and the balcony flooring was cracked in the very spot where the railing should have been attached by screws to the wooden deck.

¶ 4 On August 18, 2002, Tenant, while standing on the balcony, placed her hand on the defective railing, leaned forward, and the entire U-shaped railing along with Tenant fell from the second floor, landing on the ground below. She sustained multiple injuries.

¶ 5 In September 2001, just eleven months prior to Tenant's fall, Landlord employed David Grace, Inc. (Contractor) to "rebuild all balconies as per city code." According to Contractor, Landlord did not notify Contractor of any problems with the repair work.

¶ 6 Tenant initiated a negligent maintenance and construction action against Landlord and Contractor, respectively. Tenant asserts that Landlord owed her a duty to repair the defective railing. In addition, she contends the dangerous condition was not an open and obvious hazard and therefore, she was unable to fully appreciate the risk. As to Contractor, Tenant contends that Contractor "owed a duty to construct and install a safe balcony railing."

¶ 7 In separate motions, Landlord and Contractor moved for summary judgment asserting no duty was owed in view of the holdings in Godbey v. Barton, 1939 OK 19, 86 P.2d 621, and other similar cases; and that the balcony railing was an open and obvious condition. To support their respective arguments, each attached Tenant's deposition testimony admitting that Tenant discovered the loose railing and missing screw at the commencement of her lease. In addition to Landlord's no duty defense, Landlord maintains that Tenant had exclusive control of the premises.

¶ 8 In response, Tenant reasserted Landlord's failure to repair the defective railing. As to Contractor, Tenant maintained Contractor's duty to install a safe railing and in support, Tenant submitted the September 2001 River Chase-David Grace, Inc. contract to "rebuild all balconies as per city code," and evidence of the balcony area illustrating the existence of "additional defects" such as corrosion and rust in the railing joints and welds, of which she had no knowledge.

¶ 9 Without explanation, the trial court granted summary judgment to both defendants. Tenant appealed. The appellate court affirmed judgment in favor of Landlord,² but reversed the judgment in favor of Contractor because Tenant's negligence action stems from an improperly installed railing, not from Contractor's alleged duty to warn her of the defective condition. Tenant urges this Court to overrule Godbey, Alfe v. New York Life Ins. Co., 1937 OK 243, 67 P.2d

212 P.3d 1227

947, and similar cases; and to adopt the view embraced by a majority of other states which removes a veil of landlord immunity and instead treats the landlord as any other property owner imposed with a general duty of care of their premises.

II. STANDARD OF REVIEW

¶ 10 A moving party is entitled to summary judgment as a matter of law only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that no genuine issue of material fact exists. Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926. In reviewing the grant or denial of summary judgment, this Court views all inferences and conclusions to be drawn from the evidentiary materials in a light most favorable to the nonmoving party. Id. Because a grant of summary judgment is purely a legal issue, this Court's standard of review on appeal is de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.

¶ 11 In order to defeat a summary judgment motion on a negligence claim, the opponent must establish that a genuine issue of material fact exists as to whether the defendants: (1) owed a duty of care to the plaintiff; (2) breached that duty; or (3) breach of that duty proximately caused the plaintiff's injuries. See Copeland v. Tela Corp., 1999 OK 81, ¶ 5, 996 P.2d 931, 933. The cornerstone of a negligence action is the existence of a duty. Bray v. St. John Health Sys., Inc., 2008 OK 51, ¶ 6, 187 P.3d 721, 723. The issue of whether a duty existed is a question of law. Id.

III. ANALYSIS

¶ 12 Tenant urges that the Oklahoma Legislature abrogated the common law landlord tort immunity rule with its enactment of Okla. Stat. tit. 41, § 118 (2001). She contends the immunity rule articulated in Alfe and Godbey is out of sync with Oklahoma's landlord tenant laws. Those cases centered around Okla. Stat. tit. 41, §§ 31 and 32, which was repealed by section 118 in 1978.

¶ 13 This Court, however, cannot agree with Tenant's contention. Absent the Legislature's expressed intent to the contrary, the common law remains intact. Tate v. Browning-Ferris, Inc., 1992 OK 72, ¶ 11, 833 P.2d 1218, 1225. Although the Oklahoma Landlord Tenant Act, specifically Okla. Stat. tit. 41 § 118(A)(2) (2001)³, imposes a duty upon the landlord to "[m]ake all repairs and do whatever is necessary to put and keep the tenant's dwelling unit and premises in a fit and habitable condition," it does not create a tort remedy for personal injures sustained as a result of a landlord's breach of those duties. It merely regulates the contractual rights and obligations of the residential parties and does not enlarge the landlord's duty under common law. See Okla. Stat. tit. 41, §§ 103(A) & 121 (2001).

¶ 14 Landlord and Contractor insist no duty is owed to Tenant in light of the holdings articulated in Godbey, 1939 OK 19, 86 P.2d 621, and Alfe, 1937 OK 243, 67 P.2d 947. In Godbey, the tenant-plaintiff sued the landlord-defendant for the drowning death of tenant-plaintiff's infant son. The infant fell into an open cistern located on the leased premises.

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Prior to the accident, the tenant-plaintiff discovered the open cistern which was concealed by tall weeds. The doctrine of caveat emptor controlled because no lessor-lessee covenant to repair existed, the tenant-plaintiff was in exclusive control of the demised premises, and the tenant-plaintiff was aware of the condition's existence long before the fatal accident. 1939 OK 19, 86 P.2d 621.

¶ 15 Alfe presents a landlord's failure to adhere to the statutorily prescribed obligations to lease a premises in a fit and habitable condition. In...