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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