„ Plaintiff, Richard G. Knapp, Jr., appeals from the district court’s grant of summary judgment to defendant, David A. Simmons, in a tort action arising from the poisoning of his cattle on land leased from the defendant. Because we determine that trial court erred in granting summary judgment, we reverse.
The facts developed in the district court proceedings are uncomplicated. Sometime in October of 1979, Simmons entered into an oral lease with Knapp allowing plaintiff to graze his cattle on defendant’s cornstalks. Under this agreement, Knapp paid $2.50 per acre for an unspecified number of acres that had been planted in corn even though the cows had unfettered run of defendant’s entire 320 acres. The parties had entered into similar arrangements for the three preceding years. Prior to turning out the herd on November 1, 1979, Knapp drove around the perimeter of the premises and also walked the fences to make sure they were stock tight. No other inspection apparently was made.
*120 On November 13, 1979, Simmons informed Knapp that his cattle were sick and dying. A veterinarian was called and arrived about an hour later. He concluded that the cows had been poisoned by eating Furadan and had died of Furadan toxicosis. The parties in searching the premises found cattle milling around an open sack of Furadan and noted several hoof prints on the bag. The record does not disclose the location of the Furadan on defendant’s premises.
On September 30, 1980, Knapp filed a petition against Simmons setting out the lease arrangement and alleging that “Defendant was negligent in the operation and maintenance of his land by allowing Fura-dan to be present when the Plaintiffs cattle were grazing there.” The action was relatively dormant until Simmons propounded interrogatories to plaintiff sometime in January of 1983. Plaintiffs answers revealed no further facts than those previously set out. On January 7, 1983, two days after receiving the answers, defendant moved for summary judgment.
In support of the motion, defendant argued that except for latent defects existing at the time the lease was consummated, the landlord was not liable for the condition of the premises nor does he undertake that they may be safely used for the purposes for which they were leased. Plaintiff, on the other hand, contended that the landlord was liable for failing to turn over or maintain the premises in a manner suitable for the rental purpose.
The court rejected plaintiffs suitability theory and stated that no assurances were given that the land was either inspected or safe nor was there a claim defendant knew or should have known of any latent defects or dangers on the property. The court went on to note that “Plaintiff has no evidence to show where the Furadan bag came from, who it belonged to or how long it was on the property.” It concluded that defendant should not be put to the expense of trial when such vital evidence did not exist and granted summary judgment for defendant. Plaintiff appealed.
On appeal, he claims: (1) this court should adopt a rule that leases of agricultural land carry an implied warranty of suitability for a particular purpose; (2) even if there is generally no duty running from an agricultural landlord to his tenant, such a duty arises here because Knapp and Simmons had joint control over the premises where the injury occurred; and (3) there was a genuine issue of material fact as to whether the poisoning of plaintiffs cattle was caused by a latent defect existing at the time the lease was entered into.
Prior to addressing the specific issues raised by appellant, we will further examine the nature of the action and the trial court’s grant of relief by way of summary judgment. We shall also review principles of law concerning motions for summary judgment and the court’s ruling.
The pleadings revealed an action in tort. In particular, plaintiff pled that an oral lease allowed his cattle to feed on cornstalks and that while they were grazing they came in contact with Furadan. He alleged negligence on the part of the landlord arising from the operation and maintenance of his land. It is well-settled that neglect of duty imposed by a lease is a tort for which an action ex delicto will lie.
Duke v. Clarke,
In granting defendant’s motion for summary judgment, the trial court rejected any duty of the lessor based on an implied warranty of suitability of the premises. The trial court did recognize that a landlord has a duty to warn the tenant of known latent defects but did not address his duties in situations of joint control over the leased premises.
*121
Summary judgment is proper when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c). The burden of showing the nonexistence of a material fact is upon the moving party.
Colonial Baking Co. of Des Moines v. Dowie,
I. Plaintiff first urges this court to judicially adopt a rule that liability of a lessor may be based upon breach of an implied warranty of suitability of agricultural land for a particular purpose. In the past, we have soundly rejected the theory that the landlord impliedly warrants that leased property will be suitable for the purpose for which it is rented.
See Osterling v. Sturgeon,
Nevertheless, plaintiff insists such an implied warranty is appropriate. Essentially, he points to the narrowing of the doctrine of caveat emptor in the sale of goods, Article 2 of the Uniform Commercial Code, and also the decisions of this court holding there is an implied warranty of habitability in residential leases.
See Mease v. Fox,
Additionally, important policy considerations dictate against judicial adoption of plaintiffs view. If an individual rents cropland, and the land is infested with insects or is subsequently flooded, would he have a cause of action for a breach of an implied warranty for a particualr purpose? Many variables, difficult of proof and beyond a lessor’s control, could possibly subject him to liability if leases carried an implicit warranty that they were suited for a particular purpose.
We conclude that the trial court was correct when it rejected, as a matter of law, any duty of a lessor arising from an implied warranty of suitability.
II. Plaintiff also claims that summary judgment was not appropriate to resolve the issue of the landlord’s duty to disclose latent defects. Specifically, plaintiff asserts, and we agree, there was a genuine issue of material fact as to whether the poisoning of the cattle was caused by a latent defect existing at the time the lease was consummated.
*122
The question of Simmon’s negli-gente grounded on a violation of his duty to warn Knapp of hidden or latent defects was considered and disposed of by the court. Indeed, the lessor squarely placed this issue before the court in his motion for summary judgment when he cited
Wright v. Peterson,
Generally, issues of negligence and proximate cause — the resolution of which requires determination of the reasonableness of the acts and conduct of the parties under all the facts and circumstances of the case — are ordinarily not susceptible of a summary adjudication but should be resolved by, trial. Daboll v. Hoden, 222. N.W.2d 727, 734 (Iowa 1974). In an unusual case the facts may be such that trial court could correctly conclude in a summary judgment proceeding that negligence has been established or negated as a matter of law. This, however, is not such a case.
In granting summary judgment, the trial court primarily and incorrectly relied on plaintiff’s lack of personal knowledge and his inability to point to the availability of direct evidence. Specifically, it reasoned that plaintiff could not show where the Furadan bag came from, who it belonged to or how long it was on the property, and then concluded there was no proof that defendant knew of any latent or hidden defects. This conclusion ignores the inferences that a trier of fact reasonably could make from the discovery of the poisonous substance on the premises a few days after commencement of the lease. Reasonable minds could infer that a bag containing a toxic insecticide would not suddenly appear in an open field at the end of a growing season and consequently had been there for some time. While we have no facts about the exact location or visibility of the bag, reasonable minds could infer from common experience that the bag was small enough to qualify as a latent defect. The factfinder could also infer that the owner and lessor of cropland knew or should have known of the presence of poisonous material in his field. Additionally, in an affidavit in support of his resistance to summary judgment, plaintiff alleged that “[Djefen-dant maintained a debris pile on the premises, which pile had been covered by corn cobs in 1976, 1977 and 1978; but that said corn cobs had been ‘washed away’ or otherwise removed from that pile in 1979.” Although plaintiff did not allege that the Furadan bag was hidden in this pile of debris, we think, viewing the facts in the light most favorable to plaintiff, the non-moving party,
Sandbulte v. Farm Bureau Ins.,
In summary, we conclude a genuine issue of fact existed on the possible negligence of defendant in failing to warn plaintiff of a latent defect on the leased premises. Therefore, summary judgment for defendant was inappropriate, and the *123 matter must be remanded for a trial on this issue.
III. Plaintiff also raises an additional reason why summary disposition was erroneous. He claims that, by virtue of joint control of the premises, the lessor owed plaintiff a duty to operate and maintain the premises in a reasonably safe condition. This issue was not raised in district court either by specific pleading or by resistance to the summary judgment. Thus, the trial court had no opportunity to address the claim. Since the case is remanded for trial, this issue in all probability will be litigated. Thus, we shall briefly address it.
In claiming the existence of additional duties where the lessor and lessee have joint control of the premises, plaintiff relies on Iowa case law involving residential leases. Basically, these cases hold that where the landlord retains control or the landlord and tenant have joint control over a part of the premises, liability attaches if an injury or damage to property occurs because that part of the premises was in a defective condition or negligently maintained.
See e.g., Montgomery v. Engel,
Nonetheless, we think plaintiffs position is reasonable. In fact, the circumstances of this case are similar to those presented in
Brown v. City of Sioux City,
We are of the opinion that the evidence was sufficient without testimony that the spray reached the grove rented by plaintiff. The city rented the land to plaintiff for the express purpose of keeping bees. The city knew the bees would not be confined to the three-acre plot it rented to plaintiff.... The city knew the bees would work out of the apiary and onto the adjoining fields. When the city, as plaintiffs landlord, sprayed a poison that would kill bees on the land adjoining the [rented] plot without at least notice to plaintiff it should have foreseen the ensuing damage to plaintiff.
Id.
at 1202-03,
Here, the record is not clear as to the precise terms of the lease or the extent of the lessor’s control over the premises. Knapp was to pay rent for corn acres but his cattle had the run of the entire farm. We are left in the dark about the landlord’s retention of control. If, as in Brown, the evidence sustains a finding of control by Simmons over that part of the premises where the toxic substance was located, he was bound to use reasonable and ordinary care in his management of that part.
REVERSED AND REMANDED.