Daily Development for Friday, November 5, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANTS; ICE AND SNOW: Two cases evaluate claims for landlord liability for injuries relating to ice and snow. Landlords win one, lose one.

(1) Bloom v. Bistro Restaurant Limited Partnership, 710 N.E. 2d 121 (Ill. App. 1999)

(2) Geraldine McAllister v. Boston Housing Authority, 708 N.E. 2d 95 (Mass 1999)

In Bloom, plaintiff was injured by falling ice while waiting under a canopy outside of a restaurant premises leased from landlord. The ice fell through the canopy, and she never saw the ice before it hit her. She sued restaurant and its landlord.

Citing the general rule that landowners are not responsible for injuries caused by natural accumulations of ice (Wells v. Great Atlantic & Pacific Tea Co., 525 N.E.2d 1127 (Ill App. 1988), the trial court granted summary judgment for both defendants.

On appeal, held: Reversed.

The court noted evidence that suggested that the ice had fallen from an accumulation on a building protrusion. Three other protrusions still had four foot long icicles suspended from them, but one had a stub. The court apparently felt that this evidence suggested that the design of the building was faulty in that it permitted unusual and dangerous accumulations of ice. Such accumulations do not fall within the rule of nonliability for "natural" accumulations. In a simple, but damning, comment, the court stated that "[t]he construction and maintenance of the landlord's premises are within his control." There was some evidence, according to a concurring opinion, showing that the defendant landlord was aware of the condition.

As to the tenant restaurant, the court held further that it had a duty to provide safe ingress and egress, but that the plaintiff had a duty to show that the restaurant knew of a dangerous condition and that it did not act reasonably to prevent injury to plaintiff. In the view of the court, "five or six" complaints of falling ice around the canopy in five and a half years was enough to raise a question of fact for the jury on this issue.

Comment: The case is made difficult because, apparently as a matter of policy, landowners are not held liable for natural accumulations of ice and snow, even if they fail to remove such accumulations or prevent them from happening. How is this case really any different? Nevertheless, the editor concurs in the result; if a landowner is aware that potentially lethal ice missiles are forming over the canopy of a restaurant that the landowner has leased for restaurant purposes, the landowner ought to have a responsibility to do something.

In McCallister, the Massachusetts Supreme court holds that the implied warranty of habitability does not impose an absolute duty on a landlord to keep the premises free of natural accumulations of ice and snow on a building's exterior stairs.

The Massachussetts State Building and Sanitary Codes required that the defendant Housing Authority keep stairs free of snow and ice. The trial

court judge instructed, however, that a violation of a code provision here, although it could be considered evidence of negligence, "should not be taken as conclusive of a breach of the duty of care."

The judge instructed that, because the defendant had a duty, the plaintiff was required to show that the defendant failed to exercise the amount of care that a prudent person would exercise in the circumstances. The jury found no negligence based upon this standard.

As to the implied warranty of habitability, the trial court found, and the Supreme Court affirmed, that the warranty applies to significant physical defects in the property, but the natural accumulation of ice and snow is not such a defect.

Comment: This is an important ruling in the high court of probably the most tenant friendly state in the nation. One would have thought that the landlord's failure to remedy naturally occurring dangerous conditions in and about the premises would certainly be a breach of the habitability warranty, especially when the landlord is mandated by law to remedy such conditions. This isn't necessarily an "absolute liability" standard, so maybe the jury instructions were adequate in any event, but it is surprising that the court found the implied warranty of habitability irrelevant here.

Also see: Sweatt v. Murphy, Miss. Supreme Ct. No. 97CA00638SCT, 1999 WL 33878 (1/28/99) Statutory implied warranty of habitability does not establish that any violations of the statute constitute negligence per se in a personal injury action. Sweatt was the DIRT DD for July 22, 1999.

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