Daily Development for
Wednesday, October 7, 1998
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
Comment: Here is a series of recent annotations involving the issue of the liability of a landlord for injuries to third parties on leased premises where 100% of the premises has been let to a single tenant. The usual rule that the landlord is not liable except for dangerous undisclosed latent conditions existing at commencement of lease has stood up reasonably well under various attacks described below:
Four Pro Landlord decisions:
1. Smith v. S.E. Pennsylvania Transportation Authority, 707 A.2d 604 (Pa.Commw. 1998). City, which leased subway to transportation authority, was landlord outofpossession, and not liable to pedestrian who was injured by dangerous sidewalk condition at leased premises.
2. Payne v. Candelora, 706 A.2d 22 (Conn.Super. 1997). Former landlord of apartment building not liable to tenant for personal injuries based on presence of lead paint in building, since defective condition of premises arose during the tenancy and landlord, who relinquished control of building before lead paint was discovered, did not receive notice of condition.
3. Molosz v. Hohertz, 957 P.2d 1049 (Colo. App. 1998). Landlord owes no duty to protect third parties from tenant's criminal conduct except to the extent the landlord can control the tenant and only if the landlord knows or should know the necessity and has opportunity for exercising control. (In this case there was no liability although the tenant was the adult son of the landlords.)
4. Harris v. Keys, 945 P.2d 288 (Alaska 1997). Person injured through negligence of a tenant cannot recover against the landlord on the theory that the tenant was an agent of the landlord. Tenant had been granted residence in a mobile home at logging site in order to discourage intruders, but had no specified duties other than residency.
Two Pro Plaintiff Decisions:
5. Siddons v. Business Properties Development Co., 953 P.2d 902 (Ariz. 1998). Where tenant has created a hazard leading to an invitee's injury, landlord may nevertheless be liable for the injury if the landlord had notice of the hazardous condition.
This appears to be an alternate holding on summary judgment motion only. The court ruled that the injured party could recover by demonstrating that the landlord had knowledge of a dangerous condition created by tenant and did nothing to correct it when it had the power to do so under the lease. The dangerous condition was the fact that tenant routinely removed a large door and leaned it against the wall adjacent to the sidewalk when it was moving oversize items into its store. Landlord had refused tenant's requests to install a larger door, and apparently could have refused permission to the tenant to remove the door and place it on the sidewalk. The case may turn upon the fact that landlord had control over the sidewalk as a common area, but the holding is unclear.
6. Gabaldon v. Erisa Mortgage Company, 949 P.2d 1193 (New Mexico 1997) While the operation of a wave pool does not constitute an inherently dangerous activity, a landlord has a duty to use reasonable care in selecting a tenant to lease the premises on which the wave pool will operate.
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