by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANTS: A landowner is not exempt from its duty to exercise reasonable care to protect invitees from potentially dangerous conditions on land solely because the danger includes risks that are inherent in a natural body of water.

Degel v. Majestic Mobile Manor, Inc., 914 P.2d 728 (Wash. 1996).

This premises liability action was brought by mobile home park tenants against the landlord on behalf of a small child who was seriously injured when he slid down a steep embankment and into a fast-flowing creek adjacent to the play area near his home. The trial court dismissed the action ruling as a matter of law that a landowner owes no duty to protect an invitee from dangers inherent in a natural body of water.

On appeal: held: Reversed: Landlord has a duty, notwithstanding the fact that the injury was related to a natural body of water.

The parties agreed that the tenant's child was an invitee at the time of his injury. Generally, a landowner owes invitees an affirmative duty to use ordinary care to keep the premises in a reasonably safe condition. In the context of landlords and tenants, this means that a landlord has an affirmative obligation to maintain the common areas of the premises in a reasonably safe condition for the tenants' use. The question before the Court was not whether the landlord met or breached its duty, but whether the duty itself was excused because of the fact that the potentially dangerous condition included a natural body of water.

The landlord argued that the "natural bodies of water doctrine" exempts a landowner from the duty to exercise reasonable care to protect against the hazards of bodies of water. In the landlord's view, the doctrine provides that regardless of the status of the injured party, the landowner, in fulfilling its duty to exercise reasonable care, is not required to take affirmative steps to make safe, and warn of its presence, or to prevent access to, the natural body of water. The Court held that while the rule advanced by the landlord has been applied in attractive nuisance cases, it does not apply where the injured party is an invitee. The Court reasoned that a child invitee is not the equivalent of a trespasser in an attractive nuisance action, but is a guest, specifically invited on the property of the landowner.

Moreover, the landowner's burden to make the property safe for children is not disproportionately heavy, as a matter of law, where the landowner is profiting from the child's presence on the land or where the child's presence has been invited and encouraged.

The dissent argued that the court has long recognized that imposing potential liability on all owners of property containing bodies of water is contrary to public policy. Such potential liability would result in the barricading of natural resources from public access and would place too great a burden on the property owners.

Comment: The dissent has a point, but the point is not valid in the case of bodies of water located on private property that is leased to residential tenants, including small children. The area surrounding the body of water is a common area under the control of landlord, and it is appropriate that the landlord has responsibility for it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@staff.abanet.org

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. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.