Daily Development for
Thursday, July 22, 1999
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
LANDLORD'S LIABILITY FOR
INJURY TO TENANTS; IMPLIED WARRANTY OF HABITABILITY: Statutory implied warranty
of habitability does not establish that any violations of the statute
constitute negligence per se in a personal injury action.
Sweatt v. Murphy, Miss.
Supreme Ct. No. 97CA00638SCT, 1999 WL 33878 (1/28/99)
Plaintiff tenant was injured
when a porch swing broke. The testimony revealed that the porch swing was in
fact dangerous because a crack existed in a supporting hook. Testimony also
revealed, however, that the crack was minuscule, close to micropscopic, and in
any event might have been buried in the plywood ceiling from which the swing
was suspended. The statute required that the landlord comply with all building
codes, and the swing, because of the crack, violated the applicable code. Plaintiff
argued that the defect existed at the time of the letting, and that under the statute
the landlord had a duty to provide a safe and habitable premises, so its
failure to do so for any reason was per se negligent.
The Mississippi Supreme
Court fetl differently. It commented that to impose strict liability for
breaches of the implied warranty of habitability would lead to a vast expansion
of tort liability unwarranted by the policies leading to the adoption of the
statutory warranty. Plaintiff had an obligation to show the traditional grounds
for negligence.
Comment 1: In a subsequent
decision implementing Sweatt, a residential tenant was injured when a fireplace
mantle fell on her. Builder and landlord admitted that the mantle was of
defective design and that they had not inspected it. The court concluded that,
although the landlord was not liable per se, the implied warranty shifted the
duty to the landlord to see to it that the mantle was safe, and the court
remanded for a determination as to whether the landlord negligently failed in
its duty to insure that the premises were safe.
Comment 2: In Calder v.
Anderson, 911 P.2d 1157 (Mont. 1996), the Montana Supreme Court appeared to
decide that a landlord was strictly liable for failure to maintain free of
gravel a walkway adjacent to a gravel driveway, leading to a slip and fall by a
tenant. The defendant landlord alleged that the defect was obvious to the
tenant, and thus the landlord had no duty. The court disagreed, stating that
the breach of the implied warranty of habitability duty to maintain the
premises safe imposed "strict liability" on the landlord. Nevertheless,
it remanded for a determination of whether the landlord was responsible for the
defective driveway and whether tenant's failure to notice it constituted "contributory
negligence." In short, it is difficult to be certain that the Montana
court meant what it said when it concluded that the dangerous walkway was a
condition for which the landlord was "strictly liable."
Comment 3: Strict
liability is essentially a transfer of the burden of paying the cost of
accidents in most cases a shift of the burden to insure. Logically, it has
nothing to do with whether the defendant is a good actor or a bad actor, only
whether the circumstances justify that the defendant should bear the costs of
certain injuries. The rhetoric of Calder does not demonstrate that kind of
absolutist thinking. But the question remains whether it should. If we accept
the notion that most people in the business of supplying housing derive income
from rentals with which they could buy insurance, and, due to the implied
warranty of habitability, have a general duty to inspect and make the premises
safe, it is not too great a step to conclude simply that when the tenant is
injured, the landlord's insurer should pay. The landlord can recover the costs
of insurance in the form of increased rent. If the legislature doesn't like
this form of "enforced social welfare," let it pass a new statute.
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