Schiernbeck v. Davis

• Decision Date: 04 May 1998
• Docket Number: No. 97-3431,97-3431
• Citation: 143 F.3d 434
• Parties: Linda SCHIERNBECK, Appellant, v. Clark DAVIS and Rosa Davis, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 434

143 F.3d 434

Linda SCHIERNBECK, Appellant, v. Clark DAVIS and Rosa Davis, Appellees.

No. 97-3431.

United States Court of Appeals Eighth Circuit.

Submitted March 9, 1998.

Decided May 4, 1998.

Gary D. Jensen, Rapid City, SD, argued (Jon C. Sogn, Sioux Falls, SD, on the brief), for Appellant.

Chester A. Groseclose, Jr., Aberdeen, SD, argued, for Appellee.

Before BEAM and HEANEY, Circuit Judges, and WATERS, ¹ District Judge.

WATERS, District Judge.

Linda Schiernbeck appeals the district court's ² entry of summary judgment in favor of the Davises on the issue of whether the Davises had a common law and/or statutory duty to install a smoke detector. We conclude that no duty to provide a smoke detector exists in this case, and therefore, we affirm.

I. BACKGROUND

This action was brought by Linda Schiernbeck ("Schiernbeck") against her former landlords, Clark and Rosa Davis (the "Davises"). In October of 1991, Schiernbeck and her now ex-husband, Merlin Schiernbeck, began leasing a house from the Davises. The Schiernbecks did not have a written lease with the Davises. The parties orally agreed that the Schiernbecks would pay $150 per month. They also orally agreed that the Davises would make certain "functional" repairs to the house, e.g., the Davises replaced the wood burning stove with a propane furnace. In addition, the Davises agreed to allow the Schiernbecks to do some redecorating of the house, e.g., repainting.

Schiernbeck asserts that approximately one month after she moved into the house, she noticed a discolored circular area on one of the walls with a screw inserted in the middle. Schiernbeck determined that a smoke detector had previously been attached to the wall, however, there was no smoke detector present when she moved into the house. Schiernbeck contends that she approached Clark Davis and told him about the missing detector and requested that he provide her with a new one. Schiernbeck further contends that Clark Davis agreed to furnish her with a new smoke detector.

The Davises refute Schiernbeck's assertions and claim that no agreement was ever made with Schiernbeck that the Davises would equip the house with a smoke detector. Clark Davis denies that Schiernbeck ever asked him to purchase a detector for the house. He does admit that in June of 1992, he purchased a smoke detector for the house and gave it to Schiernbeck. He claims, however, that he did not know at the time that he purchased the detector, that the old one was missing. Schiernbeck contends that Clark Davis never provided her with a smoke detector for the house.

The Davises also assert that the affidavit submitted by Schiernbeck in opposition to their motion for summary judgment, in which she states that Clark Davis agreed to provide her a smoke detector, is a sham. The Davises contend that Schiernbeck stated repeatedly at her deposition that she did not ask the Davises to provide her with a smoke detector for the house.

On February 10, 1993, a fire broke out in the house that severely injured Schiernbeck and her daughter. On February 2, 1996, Schiernbeck filed suit against the Davises alleging negligence and breach of contract for failing to provide her with a smoke detector. The Davises moved for summary judgment on the basis that there is no common law or statutory duty owed by a landlord to install a smoke detector in a rental house. On August 1, 1997, the district court granted the Davises' motion for summary judgment. Schiernbeck appeals the district court's decision.

II. DISCUSSION

"We review the district court's grant of summary judgment de novo, applying the same standard as the district court did and examining the record in the light most favorable to the nonmoving party." Lang v. Star Herald, 107 F.3d 1308, 1311 (8th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 114, 139 L.Ed.2d 66 (1997) (internal quotation marks and citation omitted). "Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds." Holloway v. Lockhart, 813 F.2d 874, 878 (8th Cir.1987) (citing Fed.R.Civ.P. 56(c)).

As this is a diversity case, South Dakota substantive law applies. See Mudlitz v. Mutual Serv. Ins. Cos., 75 F.3d 391, 393 (8th Cir.1996) (citation omitted). Thus, the first issue we must determine is whether, under South Dakota law, there is a common law duty on the part of a landlord to provide a tenant with a smoke detector.

A. IS THERE A COMMON LAW DUTY?

Schiernbeck asserts that the Davises had a common law duty to provide her with a smoke detector for the house. Schiernbeck acknowledges that the general rule regarding the common law duty of a landlord to his or her tenant for dangerous conditions is found in the Restatement (Second) of Torts § 356. Section 356 provides that "[e]xcept as stated in §§ 357-362, 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." Restatement (Second) of Torts § 356 (1965).

The comments to § 356 make it clear that a lessor is not liable to a lessee for injuries occurring after the lessee has taken possession, even though such injuries resulted from a dangerous condition existing at the time of the transfer, unless one of the exceptions found in §§ 357-362 applies. Id. at cmt. a. We have recently stated that the Supreme Court of South Dakota, if given the opportunity, would follow § 356. Heppler v. Thomson Newspapers, Inc., 105 F.3d 1212, 1214 (8th Cir.1997) (citing Clauson v. Kempffer, 477 N.W.2d 257 (S.D.1991)).

Schiernbeck contends that because the Davises agreed to provide her with a smoke detector for the house, the exception found in § 357 applies to her case. Section 357 states:

[a] lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if

(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and

(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented, and

(c) the lessor fails to exercise reasonable care to perform his contract.

Restatement (Second) of Torts § 357 (1965).

For § 357 to apply, Schiernbeck must first show that the Davises contracted to repair the leased premises. Schiernbeck states that she asked the Davises to make various functional repairs in the house, and the Davises made such repairs. Thus, Schiernbeck contends that she reasonably believed that when she asked Clark Davis to provide her with a smoke detector, and he agreed, there was an agreement between the parties that the Davises would replace the smoke detector. Schiernbeck asserts that replacing a smoke detector constitutes a "repair" as that term is used in § 357. Specifically, Schiernbeck states that replacing that which no longer works or has been stolen is a repair.

The Davises contend that § 357 is inapplicable to this case because replacing a smoke detector does not fall within the meaning of "repair" as that word is used in the context of a lessor's legal duty to repair. The Davises assert that, even if the replacement of a smoke detector constitutes a "repair," § 357 still does not apply because there was no contract to repair. The Davises contend that there was no agreement, formal or informal, between the parties to replace the smoke detector.

We agree. Even if replacing a smoke detector constituted a "repair," the Davises had no common law duty to provide Schiernbeck with a smoke detector under § 357 because there was no contract to repair.

The comments to § 357 limit a lessor's obligation by stating that § 357 does not apply where the lessor does not contract to repair, "but merely reserves the privilege to enter and make repairs if he sees fit to do so. Likewise the rule has no application where there is no contractual obligation, but merely a gratuitous promise to repair, made after the lessee has entered into possession." Restatement (Second) of Torts § 357 cmt. b(1) (1965). ³

There is no evidence that the Davises ever promised to provide Schiernbeck with a smoke detector. The only evidence that plaintiff has offered in support of her case is her own affidavit, which conflicts with her earlier deposition testimony, and thus, is unreliable and fails to create a genuine issue of material fact. Specifically, in opposition to the Davises' motion for summary judgment, Schiernbeck submitted her affidavit that stated:

[d]efendant Clark Davis agreed to provide my family and me with a smoke detector. As I have said in my deposition at pages 54 and 55, I told Mr. Davis it looked to me as if the previous renter had taken the smoke detector from the house. In response, Mr. Davis told me he knew he had to get a smoke detector and that getting a smoke detector was on his list of things to get done. My family and I relied upon Mr. Davis's agreement to provide us with a smoke detector.

Appendix at 124.

Schiernbeck's previous statements in her deposition, however, are not consistent with the statements she made in her affidavit. Namely, Schiernbeck was asked the following question at page 54 of her deposition testimony, "[d]id you ever have any conversation with Clark or Rosa Davis about smoke detectors, heat detectors, fire extinguishers?" Appendix at 68. Schiernbeck answered:

A. The only thing I can recall is that I had mentioned to them that--when he was talking about that that renter had--the stuff he had taken and that, I know I had mentioned to him about the smoke detector or what I thought looked like a smoke detector above the doorway because of the--it was like a round, clean circle on the wall and the rest of the wall was very soiled...