*1 THOMAS, Pаrent and As Individually Katherine Thomas, A Minor of Tamarius Next Friend and Charter Enterprises STEWART v. Ray 60 S.W.3d 01-259 of Arkansas Court Supreme 29, 2001 November delivered Opinion *3 Marlin, Associates, Russell D. for Eubanks and appellant. by: Gary RA., Munson, L. Rowlett & by: Tilley, Huckabay, Julia Busfield Moore, E. for appellee. John T Thomas this Katherine brings appeal GLAZE, OM Justice. from the trial court’s order granting summary judgment addition, asks us to In she in favor of defendant Stewart. Ray lessee in Arkansas. ovеrrule the doctrine of caveat Thomas, son, her Tamarius were Thomas Appellant at owned in an that was some tenants building point apartment sister, Benton, was also a Thomas’s Anita Stewart.1 Ray appellee the named defendant this suit. Inc., d/b/a Charter Stewart, Ray Enterprises, building to Gordon will Stewart sold However, as be discussed infra, apparently apartment most often referred to as Stewart’s reasons, Reesе in 1996. For unknown Reese is employee tenant in that same as apartment building. Tamarius was on a second-floor between the leaning balcony railing Benton, of Thomas and apartments Tamarius railing gave way. fell to the and suffered numerous ground Thomas filed injuries. suit 28, 1999, Stewart on December against that Stewart or alleging his were for the employees responsible railing Stew- collapsed, art failed to his in such a manner as to inspect premises them keep condition, in a safe and that he failed reasonably to maintain the in such a as to assure that were in a way they reasonably safe condition. answered, Stewart that he was under asserting no legal obliga- tion Thomases for Tamarius’s sustained in a injuries, com- mon area of the absent a apartment statute or an complex, agree- thereafter, ment. Stewart moved Shortly for summary judgment, that neither Thomas nor asserting Benton had a written lease with Further, him. law, he that under Arkansas argued landlord is under no to a tenant or a legal obligation tenant’s guest injuries absent a statute or While he express conceded agreement. that he some maintenance provided to the Stewart stated he did property, not to assume the expressly agree inspect property, hazards, remove or insurе the of the tenants safety or their guests. Further, he averred that he had never made or any altera- repairs tions to the at issue balcony to the railing accident. prior to Stewart’s motion for responded *4 that by arguing had a latent defect balcony railing that made it Thomas dangerous. contended that Arkansas should a recognize rule, have, as other which a jurisdictions latent by defect renders a landowner liablе when injuries result from such a proximately Further, defect. Thomas that Arkansas should suggested a adopt rule that once a landlord has assumed a duty by mainte- conducting nance or that he so, would continue warning to do he is liable when result injuries from his failure proximately to do so. Thomas attached in which deposition she had excerpts stated that Gordon Reese, the maintenance man for the had come apartment complex, to her to fix like the apartment things, or the air condi- plumbing tioner. Thomas’s Benton, also reflected that deposition Anita her sister, had told her that the was loose and that she railing (Benton) had informed Reese about that before the problem accident. Both that, Thomas and her son said accident, to the prior had no they idea the was loose. railing Thomas also attached deposition excerpts and Stewart is referred to as the owner or landlord.
37 that, Benton; stated before from Benton Tamarius’s fall in long of she had to Gordon about the Reese complained loose, and that Reese told her that he would check balcony being or someone to check and fix it. This get railing deposition asserted, Thomas a issue of material testimony, genuine presented fact as to the landlord’s of the thus knowledge problem, rendering summary judgment inappropriate. After a the trial court entered an order Stew- hearing, granting order,
art In that the court found the follow- summary judgment. there was no written lease 1) between Thomas and Stewart or ing: Stewart; between Benton there and was no 2) express between Stewart and Thomas or Benton relating repairs, inspec- tion, or maintenance of the there is no statute in 3) proрerty; Arkansas on a landlord to or maintain the imposing duty inspect manner; in leased a safe 4) Thomas failed to prove Stewart assumed the the leased remove inspect property, hazards, or insure the of the tenants or their safety guests; 5) Thomas failed to establish that defects in the were latent any railing defects, tenant; or unknown to the Benton 6) had full of knowledge defects, and Tamarius was her alleged Arkansas hаs guest; 7) lessee, the doctrine of caveat and has done so adopted for over 100 had 8) Stewart not years; negligently performed any repairs. Therefore, the court Stewart’s motion for granted summary judgment.
On her continues appeal, there argument are issues of fact that render We summary judgment inappropriate. have, course, ceased referring as a “dras summary judgment tic” See Wallacev. remеdy. Ark. Broyles, S.W.2d 712 on (1998) denial of in (supp. opinion Wallacev. reh’g Broyles, Ark. We now it (1998)). as one of regard simply arsenal; however, tools a trial court’s we efficiency only of the motion when the approve as granting state of the evidence affidavits, portrayed by pleadings, discovery responses, admissions on file is such that the is not entitled nonmoving party court, i.e., to a when there day is not any genuine remaining issue of material fact and the is entitled to moving party judgment as a matter of law. Id. The is not to purpose *5 issues, the but to determine try whether there are issues to be any Parker, BPS, 381, tried. Inc. v. 345 Ark. 47 S.W.3d 858 (2001). However, facts, when there is no material as to the dispute court will determine whether “reasonable minds” could draw “rea sonable” inconsistent to render hypotheses summary judgment words, In other when the facts are not at issue but inappropriate. 38 are, the court will consider whether inferences therefrom
possible drawn from the facts those inferences can be reasonably undisputed and whether reasonable minds differ on those might hypotheses. 563, Ark. 11 v. First National Bank S.W.3d 531 Wynne, Flentje of (2000). In of her argument summary judgment support inap 106, Feild, Hurst v. Ark. Thomas cites 661 S.W.2d
propriate, case, Texaco, Inc.; In that a leased to station was (1983). gas Texaco, under the of the leasе to the owner to make terms agreed Texaco, turn, $50.00. over subleased the station to major repairs Hurst, Leon who was the of the station a time during proprietor a when stone facade was constructed on the In November building. 1978, Coleman, of Texaco subleased the station to who subse Troy Hurst, entered into an oral sublease with who remained on quently as The subleases executed Texaco to Hurst and to proprietor. Coleman contained an that the lessee would maintain condition, the station in and in a safe but the terms of good repair the oral sublease to Hurst were in question. of of the stone facade portion collapsed, Hurst, sublessee, Hurst. as sued for
injuring injuries against personal owners, lessor and sublessor The trial (Texaco), (Coleman). Hurst, court found that the to rested on duty repair granted in favor of defendants. On this court appeal, Coleman, reversed as to sublessor as follows: noting At common law the lessor owed no of the repair lessee. Arkansas law follows this rule. Unless a landlord with his tenant he agrees leased repair premises, cannot, statute, in the absence of Terry be held liable for repairs. Helena, Cities Helena& W. 256 Ark. (1974); Curtner, Collisonv. (1919). 216 S.W 1059 case,
In the instant the lease made between the agreemеnts Texaco, Texaco, owners and Inc. and between Inc. and Coleman are not to the lease between Coleman and Hurst because applicable Therefore, of a lack of is whether the privity. only question terms of the oral sublease from Coleman to Hurst imposed upon Hurst’s was that Cole- Coleman a duty to repair. Appellant affidavit man to make and that told agreed Coleman Hurst callhim rеpairs any if wereneeded.Thisis to raisea repairs question (Emphasis sufficient offact. added.) *6 Cantrell, 108; at see also Id. S.W.2d Majewski held there was an where (court 649 (1987) agreement repair lessor admitted sent a worker out to roof on numerous having repair occasions).
Here, Thomas asserts that a similar situation exists. She points to Anita Benton’s wherein Benton stated she testimony, deposition informed Gordon Reesе about the loose balcony railing being prior fall, Reese, Stewart, to Tamarius’s and that as an of told employee either her he would fix it or call someone to fix it. Thomas also to her own where she averred that it points deposition testimony was Reese with whom entered she into the oral lease-for the and that Reese was the one for apartment, responsible making to the Reese admitted that hе was repairs apartments. responsible for the maintenance of the and their buildings railings. contends that these statements were sufficient to raise a of question Reese, Stewart, fact about whether or not as an of employee entered into an oral make to the repairs premises. fact,
We there are of if agree for no other questions reason than because we believe there is a as role and question of Gordon Reese. there are facts authority Simply put, disputed Reese’s surrounding responsibility authority concerning Stewart’s motion for refers apartment building. to Reese as the “owner of the summary judgment and Reese’s apartments,” deposition motion, attached to that reflects that he testimony, purchased before this incident occurred in apartments long In that 1998. same Reese also thаt he deposition, was acknowledges maintenance of the and the responsible buildings railings Further, outside them. Thomas attached her own testi deposition motion; to her to the initial mony response lease, after that she never had to a written she averred noting sign that it was Reese who informed her she could have the apartment and that had she believed Reese to be the owner of the always apartments. statements, however, these
Notwithstanding counsel foregoing servant, for Thomas asserted that Reese was an or only “agent, defendant, Further, of the named Stewart. employee” Ray defendant, Thomas’s servant, that “the its attorney argued through agent, Reese,” or Gordon assumed the of main- employee Defense counsel never cleared the issue of taining buildings. up role, court, Reese’s or and the trial on the capacity ruling motion, referred also to Reese as “the The court also agent.” there an the issue as whether duty, being assumption phrased *7 asked, Reese, did from?” and “where this get authority person, Thus, that there is a deal of confusion it is apparent great Indeed, and in at Reese’s status his this case. surrounding authority court, oral before this counsel for Stewart arguments appellee that she did not focus on Reеse’s role because she acknowledged issue,” not want to there is a fact and she conceded that if say mattered, “[did] Nevertheless, “then Reese’s we would lose.” authority counsel asserted that even if Reese did have the Stewart’s authority, contentions raised Thomas were not anof by allegations Reese to fix the but were that Benton by had railing, merely allegations about the
complained
railing.
of this
that thе
Stewart
situa
argument,
argues
support
Hurst,
tion is not akin to that
in
but instead
presented
approximates
Akers,
more
in
facts
Stalter v.
798 S.W.2d
closely
There,
Akers,
a
third
Mrs.
was
on the
(1990).
party,
injured
Howard,
and Laura
who rented their house from
property
Jason
house,
Patsi Stalter. As Akers left the Howard’s
she tripped
broke her
on a concrete block that had been
aas
leg
placed
tempo
substitute for a broken
Akers knew that the bottom
rary
step.
step
broken,
had been
and she testified that she had
a
overheard conver
Stalter,
lessor,
sation in which
had told Laura Howard that she
would
the broken
found in
(Stalter)
repair
step. Although
jury
favor,
Akers’s
this court reversed.
that there was evidence
Noting
that Akers overheard a conversation between Stalter and Howard
about
the defective
this court
held that “a
nevertheless
fixing
step,
consideration,
to
is not
gratuitous promise
repair, unsupported by
sufficient to
the landlord a
out
to
impose upon
duty
carry
Stalter,
The Stalter court further noted the Restate although ment of Torts that a lessor is to (Second) provided subject § harm to caused his lessee a condition of liability physical by if the lessor has contracted a covenant the lease or disrepair by otherwise to the land in the comment to thаt section keep repair, also stated that rule no has where there is no application “th[is] contractual but a to obligation, merely gratuitous promise repair, Thus, made after the lessee has entered into Id. possession.” holding that an third must establish a landlord’s contractual injured party to a defect in the before he recover for an duty repair may suffered leased over which the landlord injury has upon property tenant, and control to a this court reversed relinquished possession verdict. Id. jury’s Stalter, that the statement on argues Relying appellee Benton’s he would fix the outside apartment railing Reese by a to more than gratuitous promise repair, amounted to nothing first out that We We consideration. disagree. point unsupported the Stalter decisions, case, the Hurst Majewski consistently citing it was shown that a sublessor (or the rule that where recognized to a make such was sufficient raise to question lessor) agreed repairs, However, the trial court Stalter of fact duty. regarding that failed it an instruction reversed because gave jury inappropriate consideration, without that a to reflect gratuitous repair, promise a out the the landlord is not sufficient impose carry upon one, The case is a and thе present promise. others, issue, to be is whether Stewart’s agree among developed not, it did ment involved says gratuitous promise. arguing *8 involved that Stewart’s considera (or Reese’s) agreement repair tion because the was made month- during parties’ event, lease. In this is to-month oral issue another issue to any yet tried, addressed, remand, be and decided on in addition to the factual of Reese’s role and to mаke a in authority promise question the first instance. Thomas also that this court should take this argues oppor lessee, reexamine the doctrine of caveat which has been
tunity
the rule in this state for over one hundred
v.
See
years.
Haizlip
Ark.
30 S.W 60
While we do not
(1897).
Rosenberg,
future,
foreclose the
this issue in the
we
possibility
considering
First,
decline to address the
further here for several reasons.
question
that,
we
out
Thomas
the cоurt to
a
overrule
point
although
urges
cases,
McNeill,
fine of
v.
326 Ark.
long
including Propst
S.W.2d 766
her brief fails to
(1996),
court with
provide
any
on the issue of caveat lessee
a New
authority
beyond
Hampshire
case,
Ross,
Finally, doctrine of argues caveat lessee can be to that of caveat which analogized this court emptor, addressed and modified in the context of the sale of new houses in Stewart, case of Wawak v. Thomas (1970). contends that because the court an swept away Wawak, “old world caveat related to real we should property” take the to do so here with opportunity to caveat lessee. We respect decline to this Thomas asserts that we adopt reasoning. Although rule, should a more modern as the court simply adopt did in Wawak, court, case, we out that this in that had the point benefit of amicus curiae briefs from interested such organizations; briefs had been invited after the case was submitted in order to ensure that the court would have before it all before possible persuasive arguments overturning Without the benefit long-standing precedent. of such case, research and in this we argument do not believe we are simply in the best-informed to make position relatively sweeping changes to our common law.2 Because the trial court concluded that there improperly were no fact, issues of matеrial genuine we reverse the order grant ing remand the against case for further proceedings.
IMBER, not J., participating.
Brown, concurs. J., *9 BROWN, ROBERTL. Like Justice, the concurring. majority, I am reluctant to consider such a in our sweeping change common law as the doctrine completely abandoning of caveat lessee for landlords without fully facts and developed briefing amicus accompanied by curiaebriefs. I am appropriate also reluctant to consider to the doctrine adopting such as the exceptions reten- tion-of-control and latent defect without exceptions comparable briefing. Yet, it has been almost since the thirty years Uniform Residen- tial Landlord and Tenant Act was first in 1972. The proposed uniform act that states should provided residential require landlords with comply and applicable codes which building affect housing health аnd make and safety, the in a fit and repairs keep 2 For similar reasons, and also because Thomas has in this we prevailed appeal, decline Thomas’s invitation to to the caveat lessee doctrine. adopt exceptions
43 areas, condition, make available common and maintain habitable sanitation, water, Case Note. services. See utility basic plumbing, Law, A Time Landlord-Tenant v. McNeill:Arkаnsas Change, Propst for uniform act or some this (1998). Ark. L. Rev. 575 Undoubtedly, 51 to the General on it has been Assembly variation of proposed decades, been the three but no action has over several occasions past v. This is so even this court said though Propst taken by body. 623, 626, 766, McNeill, 768 (1996), Ark. 932 S.W.2d 326 inherent in the issue of land- the considerations because of policy matters “there is merit in the that such argument lord liability, in the arena.” Three deаlt with better legislative be legislative might decision, but, the no have occurred since again, sessions Propst taken. action has been act the General has not seen fit to on this
Because
Assembly
issue,
it is
that this court revisit
issue of landlord
appropriate
next
two occasions in
at the
decade,
On
liability
appropriate opportunity.
of
court have
the last
this
shown willingness
justices
rule of caveat lessee or
one of the
to it.
limit the
exceptions
adopt
Warden,
244,
(Newbern
330 Ark.
In the
has refused to
this
when
General Assembly
past
See,
has made a
in its common law.
court
significant change
e.g.,
Pitts,
1239,
Parish,
In
Parish v.
244 Ark.
and no action was taken. was only enacted. See Act decisions were handed down that legislation codified at Ark. Ann. 16-126-101 to 1596 of now Code § 2001). (Supp. The issue of landlord for liability negligence guests or, tenants deserves attention either the General by Assembly failing that, this court. Kevin Warzell BROWN and Scott Thornhill Justin STATE of Arkansas CR 00-1227 Court of Arkansas
Supreme delivered November Opinion denied rehearing [Petition 2002.*] * Hannah, Glaze grant. would JJ.,