Daily Development for
Tuesday, January 22, 2001
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
LANDLORD/TENANT;
NEGLIGENCE; DUTY TO PROTECT: Absent a special relationship, a landlord owes no
duty to a tenant to inspect and correct any fire code violations by the tenant.
Bigos v. Kluender, 611
N.W.2d 816(Minn. Ct. App. 2000).
Tenants grilled in a
kettle grill on their balcony in violation of the Municipal Fire Code. They
stored the cooled ashes in a paper bag. Ashes spilled into the patio below, and
the downstairs tenant complained to the landlord. The landlord prepared a
letter informing the upstairs tenants that their activities violated the law,
but the upstairs tenants claimed that the letter was never delivered. A fire
occurred, possibly caused by spontaneous combustion of a charcoal briquet in
the ashes bag, and the premises were damaged.
Landlord sued the tenants
for damages. The trial court found the tenants liable on a theory of negligence
per se. In the end, the appeals court remanded the case because of the
uncertainty regarding causation. But the court also addressed tenant's numerous
defenses that would become relevant if negligence were actually found on
remand.
Tenants defended by
arguing that the landlord, who had knowledge of their activities, had a duty to
warn them that they could not store grilling material on their deck because it
violated the Municipal Fire Code.
The Court of Appeals held
that the fact that the landlord had actual knowledge of the existence of
grilling materials on the tenant's deck was irrelevant. Absent a special
relationship between the tenant and their landlord, the landlord owes no duty
to the tenant to inspect and correct any alleged fire code violations by the
tenant.
The tenant alleged that
the landlord had undertaken such a special duty when it elected to write a
letter to the tenant concerning the grilling. The court concluded that the
tenant had a difficult time making this assertion when it simultaneously was
arguing that it never got the letter.
Comment: Although there
are numerous cases around the country where landlords have been found liable
for dangerous conditions even when a "special relationship" did not
exist, it is hard to imagine any court concluding that the landlord had a duty
to these tenants to warn them against their own negligent behavior.
INSURANCE; SUBROGATION:
Even where landlord can recover against tenant for uninsured losses caused by
tenant's negligent, the landlord's insurer cannot be subrogated to landlord for
amounts it paid to landlord. Bigos v. Kluender, 611 N.W.2d 816 (Minn. Ct. App.
2000).
In the principle
discussion, the landlord was able to recover from the tenant for its negligence
in operating a grill on a balcony, leading to a fire. The landlord's insurer
also asserted a subrogation claim against thetenants, arguing that it is
entitled to recover the entire cost paid tothe landlord because it was
necessitated by the tenant's allegednegligence. The Court of Appeals held that
the general principle thatan insurance company cannot subrogate against its own
insured has been extended to prohibit an insurer from subrogating against a
tenant of itsinsured who negligently starts a fire, unless an express agreement
has been entered into between the insured and its tenant requiring thetenant to
carry its own fire insurance.
Comment: This is another
example of an important principle that many lawyers, in the editor's experience,
fail to grasp. The tenant's rents are used by the landlord to acquire
insurance, and thus, in equity, the courts find that the insurance necessarily
ought to protect both landlord and tenant. Waiver of subrogation clauses would
be easier to negotiate if both parties understood that, insofar as the tenant
is concerned, the waiver simply restates the common law.
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
Items in the Daily Development section generally are extracted from the
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