Daily Development for
Monday, October 23, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANT; PRODUCTS LIABILITY: California reverses field - residential landlord is not strictly liable on a products liability theory for injury to tenants from defective premises. Peterson v. Superior Court, 43 Cal. Rptr. 836 (Cal. 1995)

The original suit was brought by a hotel guest who slipped on an allegedly slippery shower tub floor. The plaintiffs were attempting to extend the California doctrine imposing strict products liability upon residential landlords to hotels and innkeepers. Logically, of course, if residential landlords have strict liability, there is every reason to extend the notion to hotels, but the lower courts had not seen this logic.

The California Supreme Court here take an opposite tack. Instead of extending the logic of the old law, it reverses that law. The court here formally reverses the decade old decision in Becker v. IRM, 213 Cal. Rptr. 213 (Cal. 1985), imposing strict liability upon residential landlords. The Becker decision had been heavily criticized and rarely followed. The court outlines the history of the concept in other jurisdictions, and its opinion reversing its earlier holding is lengthy and scholarly.

The California court posits three grounds for imposition of strict products liability here, and then rejects all three. The three grounds are:

(1) Under the classic rationale for strict products liability set forth in Greeman v. Yuba Power Products, Inc., 27 Cal. Rptr. 697 (Cal, 1963), parties in the chain of commerce with respect to consumer products are in a good position to spread the inevitable cost of accidents through that chain, thus both (a) sharing among all consumers the cost of a complex and sometimes dangerous modern world, and (b) also putting pressure to improve the safety of such products on those parties in the chain best able to make such corrections - which parties might otherwise be far removed from the individual plaintiff.

(2) Parties providing products to consumers implicitly represent them to be safe, and should be held liable when that implicit warranty proves false;

(3) specifically in the case of residential landlords, there is a special public interest, articulated in the implied warranty of habitability, that imposes responsibility for safe premises directly upon the landlord as a sort of "regulated utility" providing housing services.

The court here concludes that it simply was wrong in Becker when it made the assumption that landlords who acquire used residential rental property, and are not in the business of developing and marketing the property as new, are in the "chain of commerce" as to defective products found on the premises. The court here concludes that the landlords are likely to bear the cost of accidents themselves, spreading that cost among a relatively small group of tenants, rather than among all product users. Further, the landlords are not in a position to bring market pressure to bear upon suppliers and manufacturers, since they do not make the decision to buy the products themselves, but only to acquire buildings in which the products already have been installed.

With respect to the implied representation of safety concept, the court also rules here that the landlord is not the right target. Landlords, in the court's view, do not implicitly hold out each and every aspect of the premises as safe, but rather agree only to take reasonable steps to make the premises safe.

This rationale applies as well to the argument based upon the implied warranty of habitability. Here, again, the court points out, the representation is not one of absolute safety, but only of reasonable care. The court does conclude that, under California law, the landlord has the duty to conduct reasonable inspections of the property and make the property safe where problems are detected. In the Becker case, however, the defective product - a shower door with untempered glass, could not have been identified by reasonable inspection. In the instant case, the problem was the lack of a non-slip surface on the floor of a shower/tub. The case does not reach the issue of whether that defect was discoverable by reasonable inspection.

An interesting aspect of the case is that it goes on to extend its ruling to the case of innkeepers and hoteliers. They also are exempt from the "strict products liability" doctrine, for the reasons discussed above. One might make an argument, of course, that hotel keepers, many of whom operate similar facilities in many cities, might be in a good position to affect the safety of products supplied for hotel use. Further, one might make an argument that the implied representation of safety in the hotel situation is more pronounced. Nevertheless, the court is here sweeping with a very broad broom.

Comment: This case clearly represents a political shift, and not merely a reconsideration of theory, for the court. It is hard to say that the case represents judicial conservatism, as it reverses a major decision only ten years old. But the decision is conservative on the more widely recognized political sense of the word. It brings California back into line with thinking in other jurisdictions.

But, is it correct to say that hotel keepers, at least, are not in the "chain of commerce" to a sufficient degree to warrant application of strict liability standards? From the standpoint of insuring safety for the consuming public, it may be enough to conclude that hotel keepers have a high duty to identify defects in the premises because of their regular opportunities to conduct inspections as rooms turn over. But if the Greenman theory on spreading the cost of accidents has any meaning, shouldn't the theory apply to slippery hotel bathtubs?

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