Benard v. McDowall, LLC
298 Neb. 398
| Neb. | 2017Background
- Tenant Danielle Benard fell on a sinking front concrete step at a single-family rental in Omaha and injured her ankle; she sued landlord McDowall, LLC for negligence.
- A 2011 city housing inspection cited the sunken front step and ordered repairs; a Section 8 inspection in July 2012 passed the steps; a 2013 inspection again found the step unrepaired and issued an order to vacate.
- Lease included (1) a covenant that premises were in good repair at lease signing and (2) paragraph making landlord responsible for "major maintenance and repair" not caused by tenant.
- McDowall's representative testified he performed a temporary repair pre-lease by jacking the step and packing dirt/gravel; Benard testified the step continued to settle and others tripped on it during her tenancy.
- District court granted summary judgment for McDowall, finding no concealment and that Benard knew or had reason to know of the defect; Benard appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether landlord had duty to warn of defective step | Benard: landlord failed to notify her of dangerous condition and concealed risk | McDowall: defect was open and obvious; tenant knew or had reason to know | Court: Affirmed for McDowall — no duty to warn where tenant knew or risk was obvious |
| Whether landlord breached contractual duty to repair/maintain under lease | Benard: lease and oral promises required landlord to make major repairs and landlord failed to exercise reasonable care after notice | McDowall: performed repairs before tenancy (temporary fix) and had no further duty once tenant had possession | Court: Reversed district court as to repair claim — genuine factual disputes (whether repairs were done, effective, and whether landlord had notice of worsening) preclude summary judgment |
| Whether willful/wanton conduct or contributory negligence decided at summary judgment | Benard: district court failed to consider willful/wanton issue | McDowall: case pled as negligence; willful/wanton not properly before court; tenant's conduct shown | Court: Rejected plaintiff's claim about willful/wanton; contributory negligence not basis of summary judgment ruling |
Key Cases Cited
- Midland Properties v. Wells Fargo, 296 Neb. 407 (discussing summary judgment standard)
- Tolbert v. Jamison, 281 Neb. 206 (summary judgment burdens and landlord-tenant duties)
- A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205 (elements and duty in negligence)
- Zuroski v. Estate of Strickland, 176 Neb. 633 (adopting Restatement rule that lease covenant to repair creates landlord liability)
- Heins v. Webster County, 250 Neb. 750 (addressing willful/wanton standard and invitee/licensee distinction)