Piccola By and Through Piccola v. Woodall

• Decision Date: 08 August 1996
• Docket Number: CA-CV,No. 1,1
• Citation: 921 P.2d 710,186 Ariz. 307
• Parties: Elizabeth PICCOLA, a minor, By and Through Vincent PICCOLA and Karen Piccola, her parents and next friends; Vincent Piccola and Karen Piccola, individually, Plaintiffs-Appellants, v. Guy WOODALL, Defendant-Appellee. 94-0484.
• Court: Arizona Court of Appeals

Page 710

921 P.2d 710

186 Ariz. 307

Elizabeth PICCOLA, a minor, By and Through Vincent PICCOLA and Karen Piccola, her parents and next friends; Vincent Piccola and Karen Piccola, individually, Plaintiffs-Appellants, v. Guy WOODALL, Defendant-Appellee.

No. 1 CA-CV 94-0484.

Court of Appeals of Arizona Division 1, Department B.

Aug. 8, 1996.

[186 Ariz. 308] Louis C. Webb and David W. Bell, Phoenix, for Plaintiffs-Appellants.

Burrell, Seletos & Tinsley by Louis T. Seletos, and Ulrich, Kessler & Anger, P.C. by Paul G. Ulrich and Donn G. Kessler, Phoenix, for Defendant-Appellee.

OPINION

THOMPSON, Judge.

Appellant Elizabeth Piccola (Piccola) appeals from summary judgment entered in favor of Appellee Guy Woodall (Woodall) on Piccola's negligence action. Piccola was injured when she fell through a plate glass door at a home owned by Woodall and leased to Steven and Tammy Steinburg (the Steinburgs). We hold that a landlord owes a duty of reasonable care to his tenants which includes an obligation to inspect and warn of any hazardous condition on the leased premises. However, we conclude that Woodall is not liable to Piccola because the Steinburgs had a reasonable opportunity to discover the allegedly dangerous condition and to take effective precautions against it. We therefore affirm the trial court's entry of judgment for Woodall.

FACTS AND PROCEDURAL HISTORY

On review from the trial court's order granting summary judgment, the facts are viewed in the light most favorable to the party against whom summary judgment was entered. Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 388, 710 P.2d 1025, 1043 (1985). Six year old Elizabeth Piccola was playing at the Steinburgs' house and was injured when she fell through a sliding door made of plate glass. The Steinburgs leased the house from Woodall, the owner. Until this accident, Woodall did not know that the door was made of plate glass as opposed to safety glass. ¹ Conversely, Mrs. Steinburg testified that, based on her knowledge of construction and the age of the house, she did not think the door was made of safety glass. ² The Steinburgs had lived in the house for approximately two and a half years at the time of Piccola's accident.

The trial court granted Woodall's motion for summary judgment, finding that a landlord is not liable to the tenant or others for defective conditions existing at the time of lease unless the lessor knew of the condition and failed to inform the lessee. The court concluded that because Woodall did not know of the condition and the lessee did know of the condition, Woodall fulfilled his duty to the tenants and that he owed no duty to Piccola, the tenants' guest. Piccola filed a motion for rehearing. This was denied, and judgment was entered in favor of Woodall. Piccola appeals this judgment.

DISCUSSION

I. Standard of Review

To grant a motion for summary judgment, the trial court must find that no genuine issue of material fact exists in the record and that the moving party is entitled to judgment on the merits as a matter of law. Orme School v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). When we review a trial court's decision to grant summary judgment, we determine "de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993). If our review reveals that reasonable inferences about material facts could be resolved in favor of either party, we must reverse and remand for a trial on the merits. United Bank of Arizona v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App.1990).

II. Landlord's Duty

To establish a prima facie case of negligence, Piccola must prove: (1) the existence of a duty recognized by law, obligating the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the breach and the injury; and (4) actual damages. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). Whether a duty exists is a question of law to be decided by the court. Bach v. State, 152 Ariz. 145, 147, 730 P.2d 854, 856 (App.1986).

Piccola argues that Woodall, as the landlord of the premises on which she was injured, owed a duty to exercise reasonable care for the safety of his tenants and others in light of known and foreseeable risks. Piccola also contends that the written lease agreement between Woodall and the Steinburgs imposed a duty on Woodall to make the premises safe and habitable. See Restatement (Second) of Torts § 357. Piccola claims that these duties extend to her, as the tenants' guest.

In granting summary judgment in favor of Woodall, the trial court applied Clarke v. Edging, 20 Ariz.App. 267, 272-273, 512 P.2d 30, 35-36 (1973). In Clarke, Division Two of this Court adopted the general rule of landlord non-liability that is set forth in the Restatement (Second) of Torts § 356:

[A] lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.

The Arizona Supreme Court and this Division, however, have recognized that this formulation is out-dated, and now state the landlord's duty as follows:

[T]he landlord is under a duty of ordinary care to inspect the premises when he has reason to suspect defects existing at the time of the taking of the tenancy and to either repair them or warn the tenant of their existence. [Footnote omitted.] In other words he is under the duty to take those precautions for the safety of the tenant as would be taken by a reasonably prudent man under similar circumstances.

Cummings v. Prater, 95 Ariz. 20, 26, 386 P.2d 27, 31 (1963); see also McLeod v. Newcomer, 163 Ariz. 6, 8, 785 P.2d 575, 577 (App.1989); Udy v. Calvary Corp., 162 Ariz. 7, 11-12, 780 P.2d 1055, 1059-60 (App.1989); Presson v. Mountain States Properties, Inc., 18 Ariz.App. 176, 178-79, 501 P.2d 17, 19-20 (1972); but see W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 63, at 434-435 (5th ed.1984) (hereinafter "Prosser & Keeton") (recognizing the general rule that the landlord is not liable for dangerous conditions existing once the tenant takes possession of the premises).

In Udy, Judge Jacobson concisely explained the evolution of the landlord's duty under Arizona law:

[At common law, when land was leased to a tenant,] [t]he tenant acquired an estate in the leasehold that conveyed not only possession but also control. Prosser and Keeton [§ 63, at 434]. The general rule was that in the absence of an express contractual provision, a tenant took the premises as he found them. Id., see also Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27 (1963). In Cummings, however, the Arizona Supreme Court recognized that modern social policy considerations and Arizona precedent compelled the conclusion that certain exceptions should be carved out from the general rule. 95 Ariz. at 25, 386 P.2d at 30. The court therefore held that the landlord was under a duty to inspect the premises and "to take those precautions for the safety of the tenant as would be taken by a reasonably prudent man under similar circumstances." 95 Ariz. at 26, 386 P.2d at 31.

Udy, 162 Ariz. at 15, 780 P.2d at 1063 (Jacobson, P.J., specially concurring). ³ Recognizing the temporary nature of most leaseholds today, our supreme court has noted that landlords tend to be in a better position than are tenants to discover unsafe conditions in the premises to be leased. Cummings, 95 Ariz. at 25, 386 P.2d at 30. A duty on lessors to reasonably inspect and warn of hazards best comports with the contemporary facts of leaseholds in this state. Id.

Thus, the trial court erred in concluding that a landlord is not liable to the tenant or others for defective conditions existing at the time of the lease unless he knew of such conditions and failed to inform the tenant. A landlord owes a duty of reasonable care which requires inspection of premises if there is reason to suspect defects existing at the time the tenant takes possession. The landlord must repair or warn the tenant of such defects. Cummings, 95 Ariz. at 26, 386 P.2d at 31. We next examine the extent and duration of this obligation as applied to the particular facts of this case. ⁴

III. Extent and Duration of the Landlord's Obligation

Although the evidence established that Woodall did not know there was plate glass and not safety glass in the sliding glass door, this does not entitle Woodall to summary judgment. Actual knowledge of the dangerous condition is not required. The duty to inspect arises when the landlord "has reason to suspect" a defect. Id. Information from which a reasonable person could infer that a dangerous condition exists is sufficient to impose liability. See Webster v. Culbertson, 158 Ariz. 159, 163, 761 P.2d 1063, 1067 (1988).

Piccola argues that Woodall had constructive notice of the hazard presented by the arcadia door because the Arizona Residential Landlord & Tenant Act requires that a landlord "[c]omply with the requirements of applicable building codes materially affecting health and safety." Arizona Revised Statutes Annotated (A.R.S.) § 33-1324(A)(1). Piccola asserts that, as a matter of law, a plate glass door is deemed dangerous and violative of "applicable building codes" by A.R.S. § 36-1631 et seq. A.R.S. §§ 36-1631 to -1635 require the labeling and installation of safety glazing material in all commercial, industrial, and public buildings and family dwellings. However, as stated in the historical note following A.R.S. § 36-1361, these statutory provisions do not apply to contracts for the installation of glazing materials entered into prior to 1974. The record indicates that the leased residence was constructed before 1974. Thus, Piccola has not shown that the prohibition of the installation of non-safety glass effectuated in...