English v. Kienke

ENGLISH, personal represen Daniel En of Robert of the Estate

tative Petitioner,

glish, Plaintiff KIENKE, Defendant

Albert Respondent

No. 890281.

Supreme Court Utah.

Feb. City repair area. He

Lake did most of the properties, on his work on two or occasions, three he hired con- son, English, plaintiff’s Robert tractors. mother, learned his a friend wife, might Kienke’s that Kienke have a house to rent. showed City in house on Windsor Street Salt Lake in need of extensive that was run down and recently repairs. English was di- Since tight, pro- and his finances were vorced repair he would posed to Kienke that the house in lieu of rent. Kienke renovate However, acceptеd. parties reached no understanding agreement or as to formal re- just how much work would be perform month. There was quired to each projects understanding no as to which date, completed, by what or how would be English’s time would be valued. experience in construc- English had little tion, significant experi- while Kienke had carpentry. in construction and ence Kienke showed the areas repair house that needed project particular on a would commence by informing Kienke of part of the house ideas, genеral plans and and Kienke his give agreement. would would work, apparently without perform then materials supervision. As direction needed, English purchased them and Silvester, visited the Sampson, P. him. Kienke Fred R. Charles reimbursed occasionally. City, inspect Daniel the work Berry, F. Lake house to Claudia Salt deposition in that he did not He testified English. a time. English for a month or two at see Larson, Nelson, L. Alma Allan Aaron relationship, En- their For the duration of City, Kienke. Lake for Albert Salt projects glish on several different worked throughout the house. THE TO UTAH ON CERTIORARI the kitchеn and Kienke indicated APPEALS COURT OF particular in need of re- porch were back HOWE, Associate Chief Justice: English also discussed pair. He and certiorari in this case to re- granted house other areas of the terms reported appeals’ the court of decision view including porch. the front needing repair, (Utah Ct.App.1989). its at 774 P.2d 1154 roof that a beam the Kienke was aware decision, appeals affirmed a the court of porch sagging, that the of the front granted summary judgment that had been repairs, that the porch cеiling needed Kienke and of defendant Albert favor En- porch had rotted. posts supporting the English. Daniel against plaintiff he and glish porch, agreed to be done be- Kienke, Kienke discussed the work full-time of the Utah repairs. English commenced Transportation, owned sev- fore Department of work, usually used performing properties the Salt eral rental residential of appeals, relying but used a few The court Stephen- his own hand tools also' Warner, Kienke, power 581 P.2d 567 belonging to such as a son tools in, saw, shovel, and the Restаtement of Torts to mix concrete a tub ‍​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​​‍(1965), held that a landlord is not jack. roof by a injury liable for an begun work on the After by condition created a tenant and that be- Kienke to come to the he asked porch, English dangerous cause created the condi- progress. inspect house death, he tion that caused his alone was English that had removed the entire found negligent as a of law. English, matter part porch. English the ex- of bottom 1157. court also P.2d at ruled that it found that plained to Kienke that unnecessary to address was the issue of porch supporting the floor of the the wood was Kienke’s he had to re- had rotted and that decided purposes of Compensation for the Workers’ porch. English to place the Kienke told Act, assuming English because even was two-by-four on sides of place boards the Act, employee under the an he could not porch support the did not the roof but light recover in of the court’s conclusion precisely proceed. him instruct on how solely negligent. was Id. temporary supports, the installed Plaintiff now cоntends that of the court later, working while he but two weeks was imposing erred appeals upon in not defen- seriously porch, collapsed, the the roof on dant, by virtue his status as a landlord He later died from those injuring him. landowner, superi- and a and because of his injuries. knowledge practices, the or construction per- English filed this as Daniel action apprise English the gravity representative of the of Robert sonal estate adequately risk and to instruct him how English, alleging three claims for relief plain- Additionally, to eliminate that risk. аgainst alleged Kienke. The first common appeals tiff asserts that the court of erred negligence. The second was under law concluding an em- in not was Act, Compensation specifically Workers’ under ployee Compensation the Workers’ 35-1-45, Ann. which autho- Utah Code Act. law-type by an em- rizes a common action required ployee employer an who is I. DUTY OF CARE compensation the Act workers’ to obtain appeals acknowledged The court of coverage so. insurance but fails to do Melby, 699 that Williams v. P.2d compen- carry Kienke did not workers’ duty of modified the common law English. English’s insurance on sation respect tenants care landlords owe to with punitive claim a demand for dam- third was premises. on leased to hazardous conditions ages, the assertion that Kienke based on Williams, development we reviewed knowing had acted with and reckless disre- law, early com beginning with gard of the law. liable mon law rule that a landlord was not summary judgment for on moved by a physical a lessee for harm caused (1) a be grounds landlord cannot dangerous condition on the land when injuries to which held liable for a tenant possession. We noted that tenant took from hazardous condition created result time, the was modified to rule tenant, (2) Kienke was not liable circum landlords under certain make English was section 35-1-45 because resulting danger under injuries stances contractor, Kienke’s premises. spe an leased ous conditions on plaintiff’s claim for employee. On first in which cifically outlined four instances relief, the trial court held that was could held liable for hazardous landlords аnd, (1) matter solely negligent as a of law if the landlord had contract conditions: claim, (2) held that if there was premises; the second toed contractor, employee. dangerous condition latently not an or hidden sum- to the landlord Accordingly, trial court entered was known premises if the injury; mary judgment in favor Kienke. premises admitting public renovation. Kienke visited the purposes of leased only occasionally. injured; or public a member premises retained part if English was an invitee within the open control but was the landlord’s com meaning of section Section Id. at 726. None use of the tenant. to the “a comes ment “e” lists workman who present are in the circumstances of these repairs or on land make alterations used case. Not instant purposes” example for residence by the tenant after here created condition type invitee is an invitee. This of an called En- Kienke warned possession, but he took a “business visitor” the Restatement support roof. adequately glish “is enter because he or she invited to testified that deрosition, Kienke directly for a purpose remain on land “I all warning, to the understand replied indirectly dealings connected with business Therefore, English I do that. will it all.” possessor of the land.” with the Id. danger- of the apprised by Kienke had been 332(3).1 § English of the roof when ous condition 343 Sections and 343A Re find supports. the We therefore removed impose on a of possessor statement land the in the of court of error conclusion no duty the an about to warn invitee two landlord, Kienke, as is not appeals that general types of thоse that are hazards: by dangerous a injury for an present on the land when the invitee enters by tenant. created a condition possessor expect the invi which the should Plaintiff, however, asserts that Kienke realize, and tee will not discover or duty only as his land- not owed possessor those the after the that creates upon lord, possessor also as land but entry, invitee’s such as in In re Wimmer’s to work. this re- came 444, Estate, (1947). 111 Utah 182 P.2d 119 plaintiff relies-upon the Restatement gard, type present is here. was Neither 343, (Second) of which states: Tоrts § (business visitor) an was en invitee who subject liability possessor land is A gaged repairs on to make extensive the to his physical harm caused invitees doing, he the house. In so created hazard if, if, only by a condition on the land but no which led to his death. There is basis to impose 343 on Kienke under section or (a) or exercise of reason- by knows the duty protect English from 343A the the condition, the care would discover able Kienke hazard created when did it should realize that involves and property, not the had not been live on risk of harm such invi- unreasonable weeks, supervise and did not or two tees, and English’s control over exercise (b) they expect should that will dissenting opinion erroneously finds danger, or the or will discover realize duty, relying upon has a Shaf it, protect against fail themselves 779, Ill.App.3d Mays, v. 140 95 Ill.Dec. fer and 83, (1986), N.E.2d 35 and Haberer 489 v. (c) reasonable care to fails exercise 313, Village Sauget, Ill.App.3d 158 110 protect danger. them 628, (1987). N.E.2d Ill.Dec. 511 805 Those analysis here, distinguishable purposes we cases are because each For the of our them, full “possessor” the owner retained either or assume that Kienke was will land, partial performed by section 328E of the control over work under reason, Restatement, a is one in For that the Haberer possessor actual invitee. upon court physical possession. id. 328E. relied See § property; did not it was of Torts section not section live on repairs gratu- Shaffer, rental in need of 343A. In invitee was a vacant unit invitees, licensees, trespassers. appeals owed to 1. The court misread Williams v. Mel- duty stating abandoning recently carе by, have stated that the owed that this court was possessor duty analysis on of land is determined law based common licensee, invitee, proper- person trespass- who comes onto the plaintiff was an or a status of the ty. Irr. Pratt v. Mitchell Hollow Williams See er. dealt landlord/tenant (Utah 1991). did not care P.2d law and deal with of due ployee Compensation under the remodeling Workers’ “assisting” the owner tiously Act, therefore, provisions condition of that a house invitee, by the own- but by the appeals created did apply. Act did nоt The court of er. employ- not decide whether was an independent contractor because it ee or liability imposed A limitation on solely negli- concluded recognized 343 and 343A by sections death, causing plaintiff his own gent Motors, 762 F.2d v. General Donovan the Act in those plaintiff Donovan could not recover under (8th Cir.1985), in which con However, employee of an circumstances. because Utah constructing an addition to who was tractor provides proof of Ann. 35-1-57 Code in plant. Donovan was Motors a General prima facie injury shall constitute evidence working the unfin fall jured in a while part an uninsured negligence on the plywood when a roof of the addition ished upon shall employer and that burden him. The court de gave way under panel negli- employer freedom from to show 343 of the Restate that section termined gence resulting injury, in such shall we apply: ment did not question address the of whether from a roof Donovan fell In this case employee. was an construction Ashton, Young L. Harry & Sons sug- None of the evidence contractor. ex- P.2d 316 this cоurt anything fall had gests that Donovan’s employ- an plained the difference between premis- the condition of GM’s to do with ee and an contractor for independent contractor es before Therefore, we premises. determining coverage on those purpose came workplace derived find the safe doctrine Act: to be inapposite employee an is Speaking generality: ‍​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​​‍in damage alleged The here did here. paid salary, a one who is hired and any provide to out of failure GM arise rate, perform the wage, or at a fixed to workplace but out of the manner a safe directed the em- employer’s work as by the inde- the work was done subject compara- to a ployer and who is pendent contractor. degree perform- of control in tively high unnecessary here to at 704. While it is

Id. contrast, an inde- ing those duties. indepen- whether was an determine engaged is one who is pendent contractor contractor, any to clas- owed dent piece of particular project or to do some an invitee is the same under sification of sum, work, a set total who usually for extend 343 and 343A and does not sections way, may job in his own do the [or her] hazard created the invitee. to a only minimal restriction or subject may have had The fact that responsible only for its controls and is knowledge practic superior of construction completion. satisfactory diversity This es and skills is immaterial. considered as main facts to be The possessor’s affect a experience does not (1) relationship here аre: bearing on the duty. more than the law legal Kienke did agreements or exist covenants whatever to ade required when warned right direction and con- concerning the support the roof. Hunt v. quately See express Apartment employee, whether Arms trol over Jefferson (Mo.Ct.App.1984)(holding fire; (2) right S.W.2d to hire and implied; or supervisor warning to a that a construction i.e., payment, method of open shaft satisfied elevator about fees, compared pay- wages contractor). duty an owner owed to. his project; аnd complete job or ment for a equipment. furnishing of the WAS NOT II. ENGLISH omitted). (footnote at 318 Id. AN EMPLOYEE Here, agreement as to there was no ruled that The trial court English’s contractor, right direct or control not an em- Kienke’s was an However, in case the issue was Act. sporadic supervision was Kienke’s work. injuries a contractor was liable for specific job whether given English was at best. of a subcontractor. Under re- duties with particular assignments or scheme, statutory such an individual is undertook, nor was projects he spect to the statutory employee of sometimes deemed performing go about he told how to simply not the case contractor. That is that he want- simply stated here. did not want quality done but ed work essence, expenses. go overboard with appeals is decision of the court of The English would arrangement was affirmed. restoration work at engage supervision or di- his convenience without HALL, C.J., and DURHAM rection. ZIMMERMAN, JJ., concur. wages payment English received no STEWART, Justice, dissenting. Although the usual sense.

fees in the ascertained, rent could be amount of the of law majority The holds as a matter the value to agreement as to nowas landlord, Kienke, a owed no that Albert English was not English’s labor. accord tenant, English, a duty of care to Robert basis, no and there was paid project on a remodeling services for performed who many hours labor agreement as how I rent. dissent. or month. perform each week he would un- majority opinion represents Furthermore, used his English primarily departure prior from this Court’s fortunate provided power tools. Kienke own contemporary lеgal willingness, light saw, shovel, jack, a roof tub reap- developments, to undertake realistic purchased most of mixing cement. concepts common law of tort praisal of old re- directly, he was the materials See, e.g., liability possessors of land. for them. imbursed (Utah 1991); Jobe, 818 P.2d 1006 v.Wade compensa- The undefined nature Oliver, 818 P.2d 1018 P.H. Investment v. wide discretion arrangement and the tion 1991); (Utah Reid v. Mutual Omaha choosing projects and English in allowed 1989); (Utah P.2d 896 Ins. 776 proceed, he would manner which the (Utah P.2d 723 Melby, 699 Williams long he would including when ‍​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​​‍and how 1985). work, conclude that was lead us to duty modified the common law Williаms the purposes for of Work- not an tenants with of care that landlords owe to Act. v. R. Compensation ers’ See Graham conditions on leased respect to hazardous (Utah 1984). Found,., 675 P.2d 1196 Thorne development reviewed the premises.1 We Williams, begin- law in very that at the of landlord-tenant Plaintiff contends early law rule that a minimum, statutory employ ning with the common Kienke was a 35-1-42(2). a tenant for landlord was not liable to by section He er as defined dangerous physical by harm caused con- in Bennett v. In upon relies our decision Commission, еxisting land when the tenant P.2d 427 dition on the dustrial time, general possession. Over pointed that our statu took where we out landlords liable legislatively rule was modified to make tory employer provision is a injuries re- conceded nonem- under certain circumstances by scheme which created brought sulting conditions deliberately within ployees are Williams, premises. Prior to Compensation leased coverage of the Workers’ governed by appropriately explained viewed as for that modifi- more 1. Williams the reason general principles of tort law. as follows: contract and cation al., 727; PageW. Keeton et P.2d at see also liability expanded The of landlords Torts at and Keeton on the Law recognition Prosser evolved from modern law has (5th ed.1984) (discussing policies social does not real- 434-35 fact that a residential lessee Rather, supporting of the traditional a modification istically in land. receive an estate landlords). by duty expectations owed tenants rights, are common law liabilities and lessee’s (business visitor) was in which landlоrds an invitee instances were four engaged who make re- for hazardous condi- extensive held liable could be pairs doing, on the house. so he cre- scope of a expanded the tions.2 Williams to his ated hazard which led death. holding landlords duty by landlord’s is no to impose There basis on Kienke care duty to exercise reasonable have “a under section 343 or 343A the Re- [of tenants in all circumstances” toward their statement Torts ] liability longer is no “[l]andlord protect English from hazard English categories the artificial devel- by limited when live created Kienke did not on the law.” 699 P.2d at oped by the common property, had not been there for two summary judg- The Court reversed weeks, supervise and did not or exercise landlord, though even ment favor English’s control over knew the hazard created the tenant majority I misapplies submit that apartment window dangerously designed (Sec- 343A of fell, through §§ a trier of she because ond) (1965). Torts Section states reasonably inferred that fact could have rule as to a landowner’s liabili- neg- landlord the tenant both the ty: ligent. subject liаbility A land is possessor of relationship between legal physical harm caused to invitees simple and Kienke was more than a land if, if, but only a condition on land Although the relationship. la lord-tenant he rent, performed constituted bor (a) knows or the exercise of reason- remodeling differed from or activities condition, care discover the able would dinary of a tenant. En and usual activities it and should realize that involves however, glish, was not an of harm to such invi- unreasonable risk typical in the usual or sense of contractor tees, and he not licensed as inde that term: (b) expect they should will not contractor; experi not pendent danger, or will discover realize construction; and he did re enced in it, protect against themselves fail anyone only re- model for but Kienke and purpose paying rent. modelled for (c) exercise reasonable care fails event, protect danger. them contractor, technically added.) obviously Kienke knew (Emphasis English duty of Kienke still owed a due risk of harm to and should— care under circumstanсes. See Haber expect and that would did— 813, Ill.App.3d v. 158 Village of Sauget, er Kienke failed danger. realize the Whether 628, (1987). 110 511 N.E.2d 805 Ill.Dec. protect” to to exercise “reasonable care warning English, specifically, whether change acknowledges majority The gave English legally sufficient Williams, but asserts that the law made discharge duty to of due care under the his principle the old common law that “tenants circumstances, material issue raises any dangerous for condition on are liable decide. jury fact that should they governs premises create” Accordingly, majority warning holds Certainly this case. of the landowner’s may may be that was an invitee that an invitee encounter hazards duty discharge the landowner’s him no of care because sufficient to Kienke owed (Sec duty due Restatement English created the hazard that caused his care. See d, ond) at 217. Torts 343 cmt. See majority states: death. admitting public purposes of be for stated that a lessor could leased Williams injured; public negligence if a member of and (4) premises under part of was retained (1) premises; to he contracted control, open to the use of but was latently dangerous the lessor’s was a hidden the lessee. known the lessor and condition which was omitted). (citations injury; premises at 726 were 699 P.2d caused an 160 e., A policy cmt. at 219. warn the Restatement and is 343A bad

generally § comparative negligence law. sufficient, however, if the ing may not be expect has reason to that landowner jury reasonably A could conclude that despite may physical suffer harm invitee negligent degree Kienke was to somе of the hazardous awareness solely responsible that event, undisputed In its obviousness. his death. It is condition or support told porch should must take other reasonable a landowner “plenty 2 roof with 4’s.” Whether x safety of the steps provide for the invi sufficient, warning given the na- f(c), 343A cmt. at 220. On facts tee. §See risk, experience ture of the the relative case, the similar to the instant court knowledge English Kienke, and oth- 779, Ill.App.3d Mays, v. 140 95 Shaffer circumstances, er raises factual issues that 83, (1986), applying N.E.2d Ill.Dec. 35 legitimately cannot be resolved on sum- Restatement, held 343 and 343A of the §§ mary judgment. There is no evidence in duty care that a homeowner owed many two-by-fours the record as to how who, home, remodeling cre an invitee placed should have been under the roof to injuries. ated the ‍​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​​‍hazard that caused his provide adequate support many or how of Sauget, 158 Village See also Haberer v. put place were in fact temporary 313, 628, Ill.App.3d 110 Ill.Dec. 511 N.E.2d supports. Nor does the evidence indicate (1987). apparent how the risk would have to a bеen layperson great such as or how state, persons perform hired this risk was collapse that the roof would with- work for a landowner are business invitees. is, however, proper support. out There 444, Estate, In re 111 Utah Wimmer’s evidence superior that Kienke had knowl- 449-51, 119, (1947). 182 P.2d 121-23 edge strength as to the nature and have also held that a landowner porch internal structure of the roof. Cer- may duty not have a of care to an invitee tainly, knowledgeable Kienke was far more respect dangerous to a condition that than as tо the nature of the risk invitee, is known or obvious to the this rule steps and what necessary avoid preclude liability does not if the landowner Clearly, hazard. there are a number of anticipated should harm have to the invitee. factual explored issues that need to be Moore v. Burton Lumber & Hardware adequacy determine the of Kienke’s warn- Co., (Utah 1981); P.2d see also event, ing. Kienke failed to meet 343A(1), Torts § summary burden on his motion for Indeed, long recognized at 218. we have judgment showing that there were no landowner’s to use reasonablе care to material issues of fact and that he was judgment entitled to protect as a matter of invitees from conditions law. premises. Rogalski Phillips on the Pe- We have consistently summary held that 203, 208, troleum 3 Utah 2d 282 P.2d judgment granted should in negligence (1955); Estate, In re Wimmer’s cases in the “most clear instances.” 452, 111 Utah at 182 P.2d at 123. That Sill, 1170, Webster v. 675 P.2d workers, 1983); irrespective Lines, runs to all Apache of see also Tank Inc. v. 614, Cheney, (Utah 1985); 706 P.2d employee, independent their status as con- 434, Bowen v. City, Riverton 656 P.2d tractor, or otherwise. See Robertson v. (Utah 1982). Because Utah сompara- is a Am., Inc., Sixpense 539, Inns 163 Ariz. of negligence state, tive special that rule has 1040, (1990) (en banc). 789 P.2d party asserts, force when a as a matter of principle Under the stated in 343 of the law, that the party solely negli- other Restatement, jury should determine the gent and that party’s negligence adequacy warning. of Kienke’s I submit proximate sole cause of the injury. majority’s rigid mechanical and Where legitimate there are inferences that application of the rule that a landowner is parties both negligent, it is not for a injury fоr an a hazard court to decide as a matter of law that one comply created an invitee does not party’s degree negligence was of suffi- magnitude compared with that when dent summary party the other warrant measuring the task of rela-

judgment. The for the trier of degree negligence is

tive

fact, negligence unless the absence is on reasonable view party clear

one evidence. As we stated Williams:

of the may have though plaintiff been

Even summary is an alto-

negligent, judgment procedure for as-

gether inappropriate negligence

sessing degree her In the negligence ‍​‌‌‌‌‌​‌‌​​‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​​‍of the defendants. negligence

days contributory when negligence ac-

an absolute defense

tion, could be summary judgment used

dispose negligence actions without de- right

priving plaintiff of his trial Now, however, on the merits. contribu- Robinson, Kaylin pro se. is de- tory negligence not an absolute fense, summary judgment rarely is and Peterson, Deputy Atty., City T. Edwin remedy resolving appropriate neg- plaintiff appellee. Murray, for and ligence actions. GARFF, Before GREENWOOD at 699 P.2d 728. ORME, JJ. for a I would reverse remand trial.

OPINION GARFF, Judge: Robinson, Kaylin appeals an Appellant, Murray order remand Circuit Court in which court concluded she transcript public ex- not entitled to at CITY, Appellee, Plaintiff and MURRAY part not face pense in because she did imprisonment. actual ROBINSON, Kaylin Defendant 11, 1991, appealed January Robinson On Appellant. driving on from a conviction of this court expired driver’s license and suspended No. 920121-CA. City registration Murray violation of Appeals of Utah. Court of documents, Along appeal with her Code. impecuniosity filed affidavit Robinson Feb. 1993. transcript provided that a a motion April Rehearing Denied court, public expense. pursuant This at motions, remanded the case Robinson’s a determination the circuit court “for mo- impecuniosity and consideration the motion tion.” The order characterized county requiring to be an order “for transcript, filed costs bear the June 1991.” court, Janu- in an order dated The circuit that Robinson ary concluded of Utah the minimum standards not met

Case Details

Case Name: English v. Kienke

Court Name: Utah Supreme Court

Date Published: Feb 4, 1993

Citation: 848 P.2d 153

Docket Number: 890281

Court Abbreviation: Utah