Stewart ex rel. Stewart v. Aldrich

• Decision Date: 31 January 2002
• Parties: Michelle STEWART o/b/o Kristen STEWART v. Harrison ALDRICH.
• Court: Maine Supreme Court

788 A.2d 603

2002 ME 16

Michelle STEWART o/b/o Kristen STEWART v. Harrison ALDRICH.

Supreme Judicial Court of Maine.

Argued: September 12, 2001.

Decided: January 31, 2002.

Walter F. McKee (orally), Lipman & Katz, P.A., Augusta, for plaintiff.

Kenneth D. Pearce (orally), Monaghan Leahy, LLP, Portland, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.¹

CLIFFORD, J.

[¶ 1] Michelle Stewart appeals from a summary judgment entered in the Superior Court (Kennebec County, Atwood, J.) in favor of Harrison Aldrich in her personal injury action brought on behalf of her minor child Kristen Stewart. The Superior Court concluded that Aldrich, as the landlord, could not be sued by an invitee of his tenants for a dog bite occurring in the tenants' apartment because the dog was owned by and under the control of the tenants. We discern no error and affirm the judgment.

[¶ 2] In December of 1997, Aldrich rented an apartment to Donald and Robin Bailey pursuant to a month-to-month agreement. The tenancy agreement was not in writing and, according to Aldrich, most of the terms were "implied," and the obligations of the parties were governed by "reasonableness." For example, Aldrich indicated that it was "understood" that he would perform traditional landlord functions like making repairs and plowing snow, and the tenants would be responsible if they caused excessive damage to the apartment. The Baileys took possession of the apartment at either the end of December, 1997 or the beginning of January, 1998.

[¶ 3] Aldrich indicated that he had evicted tenants in the past. He had always given tenants whom he was evicting a thirty-day notice of eviction. According to him, the tenants would either leave or, upon realizing that he was "serious," would correct the underlying problem that had led him to begin eviction proceedings. He did not recall ever giving a seven-day notice of eviction, but believed it was his right to do so.

[¶ 4] Aldrich did not prohibit his tenants from having dogs. The rules regarding animals were also governed by an implied rule of reason. For example, Aldrich testified² that it was understood that the tenants could not have an inordinate number of dogs (e.g., ten), and that the tenants were expected to keep the dogs on a leash when outside the apartment. The parties dispute whether Aldrich specifically told the Baileys that they could get a dog. He testified that he did not recall discussing the subject of dogs with the Baileys before he found out that they had one. The Baileys testified that they asked Aldrich whether they could get a dog and he told them that he would not have a problem if they did.

[¶ 5] The Baileys acquired a dog, an Akita, sometime in the Spring of 1998. On April 24, 1998, the dog attacked the Baileys' two-year-old daughter and created a serious wound on her head.

[¶ 6] On July 28, 1998, seven-year-old Kristen Stewart, who was a friend of the Baileys' daughter, arrived unexpectedly at the Bailey apartment. Robin Bailey was getting ready to go to the doctor's office, but told Kristen that she could stay while she got ready. Robin went into the bedroom to get ready, and Kristen stayed in the living room with the dog. A few minutes later Robin heard a scream and rushed into the living room to find that Kristen had been attacked by the dog and received injuries to her face from the attack.

[¶ 7] Stewart alleges that Aldrich had a duty to ensure that the premises he rented to tenants did not possess any dangerous conditions and that he violated this duty by allowing the Baileys to remain in the apartment with a dog that he knew to be dangerous. The court granted Aldrich's motion for a summary judgment, and this appeal by Stewart followed.

[¶ 8] When reviewing the Superior Court's entry of summary judgment, we review the judgment for errors of law. Stanton v. Univ. of Me. Sys., 2001 ME 96, ¶ 6, 773 A.2d 1045, 1048. We consider only the portions of the record referred to, and the material facts set forth in, the statements submitted pursuant to M.R. Civ. P. 56(b). Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 4, 770 A.2d 653, 655. We examine this evidence in the light most favorable to the nonmoving party. Johnson v. Carleton, 2001 ME 12, ¶ 11, 765 A.2d 571, 575; Rodrigue v. Rodrigue, 1997 ME 99, ¶ 8, 694 A.2d 924, 926, in order to determine whether the record "supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law." Greenvall v. Maine Mut. Fire Ins. Co., 1998 ME 204, ¶ 5, 715 A.2d 949, 951 (quoting Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 506 (Me.1996)). If the moving party is the defendant, then he must show that the evidence, taken in the light most favorable to the plaintiff, fails to establish a prima facie case for each element of the cause of action. Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 9, 711 A.2d 842, 847.

[¶ 9] Although there is a dispute about whether Aldrich knew that the dog had previously bitten the daughter of his tenants, the Baileys presented sufficient evidence to support a finding that he did. Further, although the trial court did not explicitly draw the inference that knowledge of the previous attack meant that the landlord should have known that the dog was dangerous or had vicious propensities, a factfinder could reasonably draw such an inference from the evidence.

[¶ 10] A landlord is generally not liable for a dangerous condition that comes into being after the lessee takes exclusive possession and control of the premises. Hankard v. Beal, 543 A.2d 1376, 1378 (Me.1988); Nichols v. Marsden, 483 A.2d 341, 343 (Me.1984); see also RESTATEMENT (SECOND) OF TORTS, § 355 (1965) ("a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sub-lessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession"). A landlord is liable for defective or dangerous conditions on his property under the exclusive control of his tenants only when the landlord:

(a) fails to disclose the existence of a latent defect which he knows or should have known existed but which is not known to the tenant[s] nor discoverable by [them] in the exercise of reasonable care;

(b) gratuitously undertakes to make repairs and does so negligently; or

(c) expressly agrees to maintain the premises in good repair.

Nichols, 483 A.2d at 343 (citations omitted) (summarizing prior precedent).

[¶ 11] Stewart does not contend that any of the Nichols exceptions apply in this case. Rather, she contends that Aldrich has not satisfied the predicate condition of Nichols that he had no control over the dangerous condition because Aldrich could have terminated the rental agreement after he learned that the Baileys' dog was vicious. Stewart argues that because Aldrich had the power to coerce the Baileys into getting rid of the dog by threatening to terminate the tenancy by eviction, or by not renewing the rental agreement, he had "control" over the dog's presence on the premises, and consequently cannot avoid liability under the test articulated in Nichols. We are unpersuaded by her argument.

[¶ 12] Stewart is correct that Nichols requires the landlord to establish the absence of "control" in order to avoid liability for a dangerous condition on the premises. See Rodrigue, 694 A.2d at 927

("Landlord-tenant liability frequently involves an analysis of whether the tenant took possession of an area, and if so, whether the landlord retained some control over it."). Accordingly, in order to avoid liability for harm caused by a dangerous condition on the premises, the landlord must show that he did not have the requisite control and that none of the three enumerated Nichols exceptions apply. The dispositive issue here is whether Aldrich, because he could have evicted the Baileys, or not renewed their tenancy, retained "control" over the presence of the dog on the premises at the time of the attack within the meaning of Nichols. The mere power to coerce the conduct of tenants through the threat of eviction or by refusing to renew the tenancy, however, is not the "control" contemplated by Nichols.³

[¶ 13] Although we have not explicitly defined the term "control," the cases applying Nichols illustrate that "control" means a power over the premises that the landlord...