Lead Opinion
Kаtherine Thomas brings this appeal from the trial court’s order granting summary judgment in favor of defendant Ray Stewart. In addition, she asks us to overrule the doctrine of caveat lessee in Arkansas.
Appellant Thomas and her son, Tamarius Thomas, were tenants in an apartment building that was at some point owned by appellee Ray Stewart.
Stewart answered, asserting that he was under no legal obligation to the Thomases for Tamarius’s injuries, sustained in a common area of the apartment complex, absent a statute or an agreement. Shortly thereafter, Stewart moved for summary judgment, asserting that neither Thomas nor Benton had a written lease with him. Further, he argued that under Arkansas law, a landlord is under no legal obligation to a tenant or a tenant’s guest for injuries absent a statute or express agreement. While he conceded that he provided some maintenance to the property, Stewart stated he did not expressly agree to assume the duty to inspect the property, remove hazards, or insure the safety of the tenants or their guests. Further, he averred that he had never made any repairs or alterations to the balcony railing at issue prior to the accident.
Thomas responded to Stewart’s motion for summary judgment by arguing that the balcony railing had a latent defect that made it dangerous. Thomas contended that Arkansas should recognize a rule, as other jurisdictions have, by which a latent defect renders a landowner liable when injuries proximately result from such a defect. Furthеr, Thomas suggested that Arkansas should adopt a rule that once a landlord has assumed a duty by conducting maintenance or by warning that he would continue to do so, he is liable when injuries proximately result from his failure to do so. Thomas attached deposition excerpts in which she had stated that Gordon Reese, the maintenance man for the apartment complex, had come to her apartment to fix things, like the plumbing оr the air conditioner. Thomas’s deposition also reflected that Anita Benton, her sister, had told her that the railing was loose and that she (Benton) had informed Reese about that problem before the accident. Both Thomas and her son said that, prior to the accident, they had no idea the railing was loose. Thomas also attached deposition excerpts from Benton; Benton stated that, long before Tamarius’s fall in January of 1998, she had complained to Gordon Reese about the balcony being loose, and that Reese told her that he would check the railing or get someone to check and fix it. This deposition testimony, Thomas asserted, presented a genuine issue of material fact as to the landlord’s knowledge of the problem, thus rendering summary judgment inappropriate.
After a hearing, the trial court entered an order granting Stewart summary judgment. In that order, the court found the following: 1) there was no written lease between Thomas and Stewart or between Benton and Stewart; 2) there was no express agreement between Stewart and Thomas or Benton relating to repairs, inspection, or maintenance of the property; 3) there is no statute in Arkansas imposing a duty on a landlord to inspect or maintain the leased premises in a safe manner; 4) Thomas failed to prove that Stewart assumed the duty to inspect the leased property, remove hazards, or insure the safety of the tenants or their guests; 5) Thomas failed to establish that any defects in the railing were latent defects, or unknown to the tenant; 6) Benton had full knowledge of the alleged defects, and Tamarius was her guest; 7) Arkansas has adopted the doctrine of caveat lessee, and has done so fоr over 100 years; and 8) Stewart had not negligently performed any repairs. Therefore, the court granted Stewart’s motion for summary judgment.
On appeal, Thomas continues her argument that there are issues of fact that render summary judgment inappropriate. We have, of course, ceased referring to summary judgment as a “drastic” remedy. See Wallace v. Broyles,
In support of her argument that summary judgment was inappropriate, Thomas cites Hurst v. Feild,
In January of 1980, a portion of the stone facade collapsed, injuring Hurst. Hurst, as sublessee, sued for personal injuries against the owners, lessor (Texaco), and sublessor (Coleman). The trial court found that the duty to repair rested on Hurst, and granted summary judgment in favor of the defendants. On appeal, this court reversed as to sublessor Coleman, noting as follows:
At common law the lessor owed no duty of repair of the premises to the lessee. Arkansas law follows this rule. Unless a landlord agrees with his tenant to repair the leased premises, he cannot, in the absence of statute, be held liable for repairs. Terry v. Cities of Helena & W. Helena,256 Ark. 226 ,506 S.W.2d 573 (1974); Collison v. Curtner,141 Ark. 122 , 216 S.W 1059 (1919).
In the instant case, the lease agreements made between the owners and Texaco, Inc. and between Texaco, Inc. and Coleman are not applicable to the lease between Coleman and Hurst because of a lack of privity. Therefore, the only question is whether the terms of the oral sublease from Coleman to Hurst imposed upon Coleman a duty to repair. Appellant Hurst’s affidavit was that Coleman agreed to make repairs and that Coleman told Hurst to call him if any repаirs were needed. This is sufficient to raise a question of fact. (Emphasis added.)
Id. at 108; see also Majewski v. Cantrell,
Here, Thomas asserts that a similar situation exists. She points to Anita Benton’s deposition testimony, wherein Benton stated she informed Gordon Reese about the balcony railing being loose prior to Tamаrius’s fall, and that Reese, as an employee of Stewart, told her he would either fix it or call someone to fix it. Thomas also points to her own deposition testimony where she averred that it was Reese with whom she entered into the oral lease-for the apartment, and that Reese was the one responsible for making repairs to the apartments. Reese admitted that he was responsible for the maintenanсe of the buildings and their railings. Thomas contends that these statements were sufficient to raise a question of fact about whether or not Reese, as an employee of Stewart, entered into an oral agreement to make repairs to the premises.
We agree that there are questions of fact, if for no other reason than because we believe there is a question as to the role and authority of Gоrdon Reese. Simply put, there are disputed facts surrounding Reese’s responsibility and authority concerning the apartment building. Stewart’s motion for summary judgment refers to Reese as the “owner of the apartments,” and Reese’s deposition testimony, attached to that motion, reflects that he purchased the apartments in 1996, long before this incident occurred in January of 1998. In that same deposition, Reese also acknowledges that he was responsible for the maintenance of the buildings and the railings outside them. Further, Thomas attached her own deposition testimony to her response to the initial summary judgment motion; after noting that she never had to sign a written lease, she averred that it was Reese who informed her she could have the apartment and that she had always believed Reese to be the owner of the apartments.
Notwithstanding thesе foregoing statements, however, counsel for Thomas asserted that Reese was only an “agent, servant, or employee” of the named defendant, Ray Stewart. Further, Thomas’s attorney argued that “the defendant, through its agent, servant, or employee Gordon Reese,” assumed the duty of maintaining the buildings. Defense counsel never cleared up the issue of Reese’s capacity or role, and the trial court, in ruling on the motion, also referred to Reese as “the agent.” The court also phrased the issue as being whether there was an assumption of duty, and asked, “where did this person, Reese, get that authority from?”
Thus, it is apparent that there is a great deal of confusion surrounding Reese’s status and his authority in this case. Indeed, at oral arguments before this court, counsel for appellee Stewart acknowledged that she did not focus on Reese’s role because she “[did] not want to say there is a fact issue,” and she conceded that if Reese’s authority mattered, “then we would lose.” Nevertheless, Stewart’s counsel asserted that even if Reese did have authority, the contentions raised by Thomas were not allegations of an agreement by Reese to fix the railing, but were merely allegations that Benton had complained about the railing.
In support of this аrgument, Stewart argues that the situation is not akin to that presented in Hurst, but instead approximates more closely the facts in Stalter v. Akers,
The Stalter court further noted that, although the Restatement (Second) of Torts § 357 provided that a lessor is subject to liability for physical harm caused to his lessee by a condition of disrepair if the lessor has contracted by a covenant in the lease or otherwise to keep the land in repair, the comment to that section also stated that “th[is] rule has no application where there is no contractual obligation, but merely a gratuitous promise to repair, made after the lessee has entered into possession.” Id. Thus, holding that an injured third party must establish a landlord’s contractual duty to repair a defect in the premises before he may recover for an injury suffered upon leased prоperty over which the landlord has relinquished possession and control to a tenant, this court reversed the jury’s verdict. Id.
Relying on Stalter, the appellee argues that the statement by Reese that he would fix the railing outside Benton’s apartment amounted to nothing more than a gratuitous promise to repair, unsupported by consideration. We disagree. We first point out that the Stalter case, citing the Hurst and Majewski decisions, consistently recognized the rule that where it was shown that a sublessor (or lessor) agreed to make repairs, such was sufficient to raise a question of fact regarding duty. However, the trial court in Stalter was reversed because it gave an inappropriate jury instruction that failed to reflect that a gratuitous promise to repair, without consideration, is not sufficient to impose upon the landlord a duty to carry out the promise. The present case is a summary judgment one, and the issue, among others, to be developed is whether Stewart’s agreement involved a gratuitous promise. Thomas says it did not, arguing that Stewart’s (or Reese’s) agreement to repair involved consideration because the agreement was made during the parties’ month-to-month oral lease. In any event, this issue is yet another issue to be tried, addressed, and decided on rеmand, in addition to the factual question of Reese’s role and authority to make a promise in the first instance.
Thomas also argues that this court should take this opportunity to reexamine the doctrine of caveat lessee, which has been the rule in this state for over one hundred years. See Haizlip v. Rosenberg,
Finally, Thomas also argues that the doctrine of caveat lessee can be analogized to that of caveat emptor, which this court addressed and modified in the context of the sale of new houses in the case of Wawak v. Stewart,
Because the trial court improperly concluded that there were no genuine issues of material fact, we reverse the order granting summary judgment against Thomas and remand the case for further proceedings.
Notes
Ray Stewart, d/b/a Charter Enterprises, Inc., was the named defendant in this suit. However, as will be discussed infra, Stewart apparently sold the apartment building to Gordon Reese in 1996. For unknown reasons, Reese is most often referred to as Stewart’s employеe and Stewart is referred to as the owner or landlord.
For similar reasons, and also because Thomas has prevailed in this appeal, we decline Thomas’s invitation to adopt exceptions to the caveat lessee doctrine.
Concurrence Opinion
concurring. Like the majority, I am reluctant to consider such a sweeping change in our common law as completely abandoning the doctrine of caveat lessee for landlords without fully developed facts and briefing accompanied by appropriate amicus curiae briefs. I am also reluctant to consider adopting exceptions to the doctrine such as the retention-of-control and latent defect exceptions without comparable briefing.
Yet, it has been almost thirty years since the Uniform Residential Landlord and Tenant Act was first proposed in 1972. The uniform аct provided that states should require residential landlords to comply with applicable building and housing codes which affect health and safety, make repairs and keep the premises in a fit and habitable condition, maintain common areas, and make available basic plumbing, water, sanitation, and utility services. See Case Note. Propst v. McNeill: Arkansas Landlord-Tenant Law, A Time for Change, 51 Ark. L. Rev. 575 (1998). Undoubtedly, this uniform act or sоme variation of it has been proposed to the General Assembly on several occasions over the past three decades, but no action has been taken by that body. This is so even though this court said in Propst v. McNeill,
Because the General Assembly has not seen fit to act on this issue, it is appropriate that this court revisit the issue of landlord liability at the next appropriate opportunity. On two occasions in the last decade, justices of this court have shown a willingness to limit the rule of caveat lessee or adopt one of the exceptions to it. See Eoff v. Warden,
In the past when the General Assembly has refused to act, this court has made a significant change in its common law. See, e.g., Parish v. Pitts,
The issue of landlord liability for negligence to guests and tenants deserves attention either by the General Assembly or, failing that, by this court.