Benard v. McDowall, LLC
904 N.W.2d 679
Neb.2017Background
- Tenant Danielle Benard rented a single-family home from McDowall, LLC, and on Sept. 23, 2012, she fell when her shoe heel caught in a gap at the front step/stoop, injuring her ankle and later requiring surgery.
- A City of Omaha housing inspector found the front step sunken and listed violations in April 2011; an inspector later (Apr. 2013) found the violations remained and issued an Order to Vacate.
- McDowall’s representative testified he performed a makeshift repair before Benard moved in (pried up the step and packed dirt/gravel underneath); a Section 8 inspection in July 2012 passed the stairs.
- The written lease required tenant maintenance for minor items but expressly made lessor responsible for "major maintenance and repair" not due to tenant misuse.
- Benard testified the step remained problematic during her tenancy, visitors tripped, and McDowall’s agent had indicated repairs were pending; she did not give explicit written notice of worsening.
- Benard sued for negligence alleging failure to warn and failure to repair; the district court granted summary judgment for McDowall; Nebraska Supreme Court affirmed as to failure-to-warn but reversed as to failure-to-repair and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to warn of dangerous condition | Benard: McDowall knew of unsafe step and failed to disclose; tenant unaware of full risk | McDowall: condition was open/obvious; tenant knew or should have known the risk | Court: Judgment for McDowall — undisputed evidence showed Benard knew or had reason to know, so no duty to warn under Restatement §358 |
| Failure to repair/maintain under lease | Benard: Lease obligated lessor to perform "major repairs" and McDowall failed to exercise reasonable care after notice of need; repairs (if any) were ineffective | McDowall: repaired before tenancy (packed dirt) and Section 8 passed; no further obligation shown | Court: Genuine issues of material fact exist about whether repairs were made/effective and whether McDowall had notice of worsening; summary judgment reversed and remanded |
| Contributory negligence defense | Benard: district court improperly relied on alleged contributory negligence | McDowall: raised contributory negligence as defense | Court: Court did not base decision on contributory negligence as argued by Benard; claim rejected |
| Willful/wanton conduct claim | Benard: argued district court failed to consider willful/wanton conduct (Heins) | McDowall: case presented only negligence; no proper basis for willful/wanton on summary judgment | Court: Willful/wanton not properly before court; Heins not controlling here; argument rejected |
Key Cases Cited
- Midland Properties v. Wells Fargo, 296 Neb. 407 (affirming summary judgment standard and appellate review)
- Tolbert v. Jamison, 281 Neb. 206 (summary judgment burden; landlord-tenant duties)
- A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205 (elements of negligence; duty is question of law)
- Wilson v. Fieldgrove, 280 Neb. 548 (summary judgment review and inferences)
- Zuroski v. Estate of Strickland, 176 Neb. 633 (definition of "repair" and landlord contractual duty)
- Gehrke v. General Theatre Corp., 207 Neb. 301 (landlord liability based on lease covenant)
- Reicheneker v. Seward, 203 Neb. 68 (landlord repair obligations under contract)
- Quist v. Duda, 159 Neb. 393 (landlord-tenant repair duty precedent)
- Heins v. Webster County, 250 Neb. 750 (discussion of invitee/licensee distinction — limited relevance)
- Warner v. Simmons, 288 Neb. 472 (clarifying Heins did not abolish landlord-tenant relationship)