Daily Development for Thursday, June 26, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

OF HABITABILITY:  Although implied warranty of habitability does
support a tort claim for injury to tenant invitees, plaintiff must show both
breach and causation.  Absence of smoke detectors is not necessarily a
breach of the warranty when there is no evidence that state law or local
ordinance requires such devices.

Sample v. Haga, 824 So. 2d 627 (Miss. App. 2002)

Plaintiff's decedents were guests of a tenant in a single family residence,
spending the night, when the house erupted in flames.  There were no
smoke detectors in the house.  Each of the two guests escaped the house
by different routes, but then each returned to seek the other, and both
tragically perished.

The fire apparently was caused primarily by negligence of the tenants or
the guests.  Tenant's electricity had been cut off, and the parties used
candles to light their way to bed.  A candle was left burning on a table,
and caused the fire.  Plaintiffs alleged, nevertheless, that landlord had
liability for the deaths because there were no smoke detectors in the

The trial court granted summary judgment to defendant landlord, and
plaintiffs appealed.

Held: Affirmed.

The court began by acknowledging that it was bound to view all the facts
in the best light for the plaintiffs.  The court said that on the theory of
basic negligence, a landlord is liable to a tenant's invitees under
Mississippi law only when their injuries are due to the landlord's "wilful
and wanton negligence."  The court pointed out that the lease turned
complete control of the property over to the tenants and imposed upon
the tenant all duties of maintenance and repair.  It is unclear whether this
was intended to communicate that parties can avoid application of the
implied warranty of habitability of Mississippi by transferring
responsibilities in this way.  The discussion may have had more to do
with causation, or may have been superfluous.

The court then noted that landlords under traditional common law are
liable only for conditions resulting from conduct that is wilful and
malicious.  The court concluded, not surprisingly, that failure to provide
a smoke detector does not fit within that category.

But, of course, there is an issue as to whether the implied warranty of
habitability imposes such a duty (assuming no waiver - as explained
above.) Mississippi is not a jurisdiction that limits the extend of the
implied warranty to those conditions required by a housing or building
code.  The court stated that the warranty means that a "the landlord has a
duty to use reasonable care in providing a safe premises."  Nevertheless,
the court stated that where there is no evidence of state or local
requirements for a smoke detector in a premises of the nature rented here,
it questioned whether the judiciary should conclude that such a
requirement arises as part of an implied warranty.  "Safety concerns for
rental property is a concern for legislative bodies of the state and locality,
and not for the judiciary."

Although the court voiced some doubt as to whether the implied
warranty required smoke detectors, it ultimately skirted that issue and
affirmed the trial court's dismissal of the action because of causation.
The election of the decedents to go back into the building once they were
outside was an intervening act that defeated any claim of proximate
cause based upon the absence of smoke detectors.

Comment 1: Not every jurisdiction concludes that the duties imposed
under the implied warranty of habitability can support tort claims.  In the
latest supplement to Friedman on Leasing (No. 5), the editor has included
a 50 state survey of the implied warranty,  and has discovered about ten states
that conclude that the warranty does support tort claims, and perhaps
and equal number that do not.

Comment 2: The notion that someone would return to a fire to try to save
someone close to them strikes the editor as well within the area of
predictable behavior and a likely occurrence when there is a residential
fire.  The editor believes that he has seen other opinions in which
behavior less normal than this was viewed as predictable under the
circumstances and not an intervening cause as a matter of law.  This is
often true of criminal activity.  This case represents a rather conservative
approach to landlord liability.

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