Daily Development for Friday, February 20, 2004 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANTS; "SUPPLIED CHATTELS:" Although a landlord may not be liable for conditions on the premises after they have been turned over to the tenant, the landlord nonetheless may be liable for defective chattels that the landlord has supplied pursuant to its business purposes. Zubrenic v. Dunes Valley Mobile Home Park, Inc., 797 N.E. 2d 802 (Ind.App. 2003). Plaintiff was injured when she fell while exiting the mobile home she shared with the Tim Hatfield, who leased from Dunes Valley Mobile Home Park ("Dunes Valley"). The mobile home had a temporary external stairway which had no handrail. Zubrenic claimed lost wages, medical expenses, and injuries from the fall. She filed claims for both negligence and breach of the warranty of habitability. At trial, Plaintiff claimed that Dunes Valley owed her a duty of care to keep the temporary stairway in a safe condition. Dunes Valley filed for summary judgment which the trial court granted. Plaintiff appealed the negligence claim but did not further pursue the claim for breach of the warranty of habitability. The Indiana Court of Appeals reversed. The court held that an issue of material fact remained with respect to the landlord's duty to the resident. The court wrote that, generally, a landlord has no duty to tenants to protect them from dangerous conditions once the tenants have taken possession and control of the property. There are, however, a few exceptions to this broad rule. The landlord may be liable to the tenant if the landlord expressly agrees to fix the dangerous condition and does not do so. The landlord may also be liable for injuries caused by latent defects of which the landlord was aware but did not disclose. Finally, the landlord may be liable for injuries sustained in common areas over which the landlord maintains control. Here, the court did not find any of the exceptions to be present. The court noted that Dunes Valley did maintain a certain level of control over the tenant's property but that it was unrelated to the stairway and trailer or their use. Further, the absence of a handrail on the stairs was not a "latent defect." Despite the absence of common law negligence liability, however, the court allowed that Dunes Valley might be responsible under a theory of liability as a supplier of a chattel. According to the Restatement (Second) of Torts (1965) a person who supplies a chattel to be used for that person's business is liable to the receiver of the chattel or those who should be expected to use the chattel if a) the supplier fails to use reasonable care to make the chattel safe or b) the supplier fails to use reasonable care to discover a dangerous condition and inform those who use it. In this case, the court holds that the temporary staircase is a chattel. The court also took from the facts at trial that the stairway was admitted to be an obvious danger. The fact for resolution at trial would be whether the stairway was used by Dunes Valley as a business purpose. If it is proved at trial that the stairway was used for a business purpose, liability could attach to Dunes Valley. The case was remanded to the trial court for further proceedings not inconsistent with this decision. Comment 1: Indiana is quite conservative in its approach to tort liability for breach of the implied warranty of habitability. Johnson v. Scandia Assoc., 717 N.E. 2d 24 (Ind. 1999) It is not surprising that the plaintiff found this theory to be a "dry hole." In many other jurisdictions, this would have been a more productive approach. The supplement to Friedman on Leases in the Appendix to Chapter 10, has a state-by-state summary that identifies states in which the implied warranty of habitability has been found to support a personal injury claim, and where not. The editor would appreciate any suggested revisions to this list. Comment 2: It is unclear whether the absence of a stair rail rendered the stairs inherently dangerous. Certainly, the resident of the mobile home was fully aware of the condition. Does the court's ruling here create a tort liability for breach of an "implied warranty of safety" for chattels supplied as part of a rental? Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues. ABOUT DIRT: DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 15 messages per work day. Daily Developments are posted every work day. To subscribe, send the message subscribe Dirt [your name] to listserv@listserv.umkc.edu To cancel your subscription, send the message signoff DIRT to the address: listserv@listserv.umkc.edu for information on other commands, send the message Help to the listserv address. DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions. To subscribe to BrokerDIRT, send the message subscribe BrokerDIRT [your name] to listserv@listserv.umkc.edu To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address: listserv@listserv.umkc.edu DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors. DIRT has a WebPage at: http://cctr.umkc.edu/dept/dirt/ ----- To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF DIRT. Please email manager@listserv.umkc.edu if you run into any problems. See for more information.