Thomas v. Stewart

Citation347 Ark. 33,60 S.W.3d 415
Decision Date29 November 2001
Docket NumberNo. 01-259.,01-259.
PartiesKatherine THOMAS, Individually and As Parent and Next Friend of Tamarius Thomas, A Minor v. Ray STEWART and Charter Enterprises.
CourtSupreme Court of Arkansas

Gary Eubanks and Associates, by: Russell D. Marlin, Little Rock, for appellant.

Huckabay, Munson, Rowlett & Tilley, P.A., by: Julia L. Busfield and John E. Moore, Little Rock, for appellee.

TOM GLAZE, Justice.

Katherine Thomas brings this appeal from the trial court's order granting summary judgment in favor of defendant Ray Stewart. In addition, she asks us to overrule the doctrine of caveat lessee in Arkansas.

Appellant Thomas and her son, Tamarius Thomas, were tenants in an apartment building that was at some point owned by appellee Ray Stewart.1 Thomas's sister, Anita Benton, was also a tenant in that same apartment building. In January of 1998, as Tamarius was leaning on a second-floor balcony railing between the apartments of Thomas and Benton, the railing gave way. Tamarius fell to the ground and suffered numerous injuries. Thomas filed suit against Stewart on December 28, 1999, alleging that Stewart or his employees were responsible for the railing that collapsed, that Stewart failed to inspect his premises in such a manner as to keep them in a reasonably safe condition, and that he failed to maintain the premises in such a way as to assure that they were in a reasonably safe condition.

Stewart answered, asserting that he was under no legal obligation to the Thomases for Tamarius's injuries, sustained in a common area of the apartment complex, absent a statute or an agreement. Shortly thereafter, Stewart moved for summary judgment, asserting that neither Thomas nor Benton had a written lease with him. Further, he argued that under Arkansas law, a landlord is under no legal obligation to a tenant or a tenant's guest for injuries absent a statute or express agreement. While he conceded that he provided some maintenance to the property, Stewart stated he did not expressly agree to assume the duty to inspect the property, remove hazards, or insure the safety of the tenants or their guests. Further, he averred that he had never made any repairs or alterations to the balcony railing at issue prior to the accident.

Thomas responded to Stewart's motion for summary judgment by arguing that the balcony railing had a latent defect that made it dangerous. Thomas contended that Arkansas should recognize a rule, as other jurisdictions have, by which a latent defect renders a landowner liable when injuries proximately result from such a defect. Further, Thomas suggested that Arkansas should adopt a rule that once a landlord has assumed a duty by conducting maintenance or by warning that he would continue to do so, he is liable when injuries proximately result from his failure to do so. Thomas attached deposition excerpts in which she had stated that Gordon Reese, the maintenance man for the apartment complex, had come to her apartment to fix things, like the plumbing or the air conditioner. Thomas's deposition also reflected that Anita Benton, her sister, had told her that the railing was loose and that she (Benton) had informed Reese about that problem before the accident. Both Thomas and her son said that, prior to the accident, they had no idea the railing was loose. Thomas also attached deposition excerpts from Benton; Benton stated that, long before Tamarius's fall in January of 1998, she had complained to Gordon Reese about the balcony being loose, and that Reese told her that he would check the railing or get someone to check and fix it. This deposition testimony, Thomas asserted, presented a genuine issue of material fact as to the landlord's knowledge of the problem, thus rendering summary judgment inappropriate.

After a hearing, the trial court entered an order granting Stewart summary judgment. In that order, the court found the following: 1) there was no written lease between Thomas and Stewart or between Benton and Stewart; 2) there was no express agreement between Stewart and Thomas or Benton relating to repairs, inspection, or maintenance of the property; 3) there is no statute in Arkansas imposing a duty on a landlord to inspect or maintain the leased premises in a safe manner; 4) Thomas failed to prove that Stewart assumed the duty to inspect the leased property, remove hazards, or insure the safety of the tenants or their guests; 5) Thomas failed to establish that any defects in the railing were latent defects, or unknown to the tenant; 6) Benton had full knowledge of the alleged defects, and Tamarius was her guest; 7) Arkansas has adopted the doctrine of caveat lessee, and has done so for over 100 years; and 8) Stewart had not negligently performed any repairs. Therefore, the court granted Stewart's motion for summary judgment.

On appeal, Thomas continues her argument that there are issues of fact that render summary judgment inappropriate. We have, of course, ceased referring to summary judgment as a "drastic" remedy. See Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (supp. opinion on denial of reh'g in Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998)). We now regard it simply as one of the tools in a trial court's efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001). However, when there is no material dispute as to the facts, the court will determine whether "reasonable minds" could draw "reasonable" inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).

In support of her argument that summary judgment was inappropriate, Thomas cites Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). In that case, a gas station was leased to Texaco, Inc.; under the terms of the lease to Texaco, the owner agreed to make major repairs over $50.00. Texaco, in turn, subleased the station to Leon Hurst, who was the proprietor of the station during a time when a stone facade was constructed on the building. In November of 1978, Texaco subleased the station to Troy Coleman, who subsequently entered into an oral sublease with Hurst, who remained on as proprietor. The subleases executed by Texaco to Hurst and to Coleman contained an agreement that the lessee would maintain the station in good repair and in a safe condition, but the terms of the oral sublease to Hurst were in question.

In January of 1980, a portion of the stone facade collapsed, injuring Hurst. Hurst, as sublessee, sued for personal injuries against the owners, lessor (Texaco), and sublessor (Coleman). The trial court found that the duty to repair rested on Hurst, and granted summary judgment in favor of the defendants. On appeal, this court reversed as to sublessor Coleman, noting as follows:

At common law the lessor owed no duty of repair of the premises to the lessee. Arkansas law follows this rule. Unless a landlord agrees with his tenant to repair the leased premises, he cannot, in the absence of statute, be held liable for repairs. E.E. Terry,Inc. v. Cities of Helena & W. Helena, 256 Ark. 226, 506 S.W.2d 573 (1974); Collison v. Curtner, 141 Ark. 122, 216 S.W. 1059 (1919).

In the instant case, the lease agreements made between the owners and Texaco, Inc. and between Texaco, Inc. and Coleman are not applicable to the lease between Coleman and Hurst because of a lack of privity. Therefore, the only question is whether the terms of the oral sublease from Coleman to Hurst imposed upon Coleman a duty to repair. Appellant Hurst's affidavit was that Coleman agreed to make repairs and that Coleman told Hurst to call him if any repairs were needed. This is sufficient to raise a question of fact. (Emphasis added.)

Id. at 108, 661 S.W.2d 393; see also Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987) (court held there was an agreement to repair where lessor admitted having sent a worker out to repair roof on numerous occasions).

Here, Thomas asserts that a similar situation exists. She points to Anita Benton's deposition testimony, wherein Benton stated she informed Gordon Reese about the balcony railing being loose prior to Tamarius's fall, and that Reese, as an employee of Stewart, told her he would either fix it or call someone to fix it. Thomas also points to her own deposition testimony where she averred that it was Reese with whom she entered into the oral lease for the apartment, and that Reese was the one responsible for making repairs to the apartments. Reese admitted that he was responsible for the maintenance of the buildings and their railings. Thomas contends that these statements were sufficient to raise a question of fact about whether or not Reese, as an employee of Stewart, entered into an oral agreement to make repairs to the premises.

We agree that there are questions of fact, if for no other reason than because we believe there is a question as to the role and authority of Gordon Reese. Simply put, there are disputed facts surrounding Reese's responsibility and authority concerning the apartment building. Stewart's motion for summary judgment refers to Reese as the "owner of the apartments," and Reese's deposition testimony, attached to that...

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