Anchorage | Fairbanks | Kenai
Coleen L. MUELLER, Appellant,
Lottie BUSCEMI and Geraldine Estabrook, individually and as Trustees of the Michael Nafla Irrevocable Trust, Appellees.
Supreme Court of Alaska.
May 21, 2010.
Excerpt from Alaska supreme Court Slip and Fall / Premises Liability case:
“As a general rule, “evidence of prior or subsequent accidents is admissible in personal injury actions to demonstrate that a defective or dangerous condition existed, so long as the incident took place under substantially similar circumstances.” The first accident Mueller wanted to reference involved J.K., a pregnant woman who allegedly fell on a walkway in front of Buscemi’s building approximately two weeks before Mueller fell. J.K. was not listed on Mueller’s trial witness list, she was not available to testify, she had not been deposed, and the court had almost no information about the circumstances or conditions of her fall. In fact, Mueller was unsure whether J.K. was still living at the time of trial. It is not clear how Mueller intended to introduce evidence of J.K.’s accident; we presume for purposes of this appeal that Mueller had a witness who had personal knowledge of it. The second accident was to be described by Ulrike Ward, an employee of a business in Buscemi’s building. Mueller claimed that Ward would testify that on the same day Mueller fell, an unidentified woman entered the business where Ward worked and complained that she had slipped and fallen on her way into the building. According to Mueller, Ward did not see the woman fall but believed she fell in front of the building, not in the back parking lot where Mueller fell. Finally, Mueller sought to introduce evidence that Tom Drake fell and hurt his knee in front of the building on the same day Mueller fell. Mueller did not request permission to call Drake as a witness and did not include him on her trial witness list.
It was Mueller’s burden to prove that her fall and these other falls occurred under substantially similar circumstances. “It is well-settled that it is an appellant’s responsibility to present this court with a record sufficient to allow meaningful review of his or her claims.” The only similarity Mueller identified between the proffered accidents and her own was that two of them allegedly occurred on the same day as her accident. Neither occurred in the same parking lot as her fall, and falls at other locations around Buscemi’s building are not necessarily probative of the conditions that existed in the building’s rear parking lot. Given the scant evidence Mueller proffered, we are not left with a “definite and firm conviction . . . that the trial court erred in its ruling” when it declined to allow the admission of this evidence.”
872 P.2d 1213 (1994)
Darlene NEWTON and Stan Newton, Appellants,
Enid MAGILL and Estate of Fred Magill, dba Magill’s Trailer Park, Appellees.
Supreme Court of Alaska.
April 29, 1994.
Rehearing Denied May 17, 1994.
Excerpt from Supreme Court of Alaska Slip and Fall decision:
“The Newtons describe Petersburg as a city where “constant drizzle” is “prevalent” except in the summer “when the rainfall is broken by periods of sun.” They contend that the wet climate fosters the growth of a plant organism on exposed wooden boards, causing them to become dangerously slippery when wet. To guard against this tendency, the Newtons contend that permanent installation 1216*1216 of some sort of anti-slip device is necessary. They argue that the general community standard in Petersburg is to install such devices.
Under the traditional common law rule governing the liability of a landlord, failure by the Magills to meet the community standard, assuming it exists, would be irrelevant. The traditional rule is that real property lessors are not liable to their tenants for injuries caused by dangerous conditions on the property. City of Fairbanks v. Schaible, 375 P.2d 201, 205 (Alaska 1962); Restatement (Second) of Torts §§ 335, 356 (1965). There are exceptions to this rule of non-liability. If the dangerous condition is not reasonably apparent or disclosed, if it exists on a part of the premises which remains subject to the landlord’s control, if the landlord has undertaken to repair the condition, or if the property is leased for a purpose which involves admission of the public, the landlord is subject to liability for negligence. None of these exceptions applies to this case.
The general rule of landlord immunity follows from the conception of a lease as a conveyance of an estate in land under which the lessee becomes, in effect, the owner for the term of the lease. As such, the lease was subject to the principle of caveat emptor. The tenant had to “inspect the land for himself and take it as he finds it, for better or for worse.” William L. Prosser, Law of Torts § 63 at 400 (4th ed. 1971).
The courts of a number of jurisdictions have begun to discard this common law rule, however, in favor of the principle that landlords are liable for injuries caused by their failure to exercise reasonable care to discover or remedy dangerous conditions. These courts have relied in part on statutory or common law warranties of habitability and in part on a belief that the rule of landlord immunity is inconsistent with modern needs and conditions.
The decision which began the trend imposing a general duty of care upon landlords was Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (N.H. 1973). Sargent involved the death of a tenant’s four-year-old daughter in a fall from an outdoor stairway attached to an apartment house. The tenant brought a wrongful-death action against the landlord, alleging negligence in the construction and maintenance of the stairway. Evidence indicated that the stairs were dangerously steep and the railing was insufficient to prevent the child from falling over the side. The jury returned a verdict for plaintiff. Id. 308 A.2d at 529-30.
In affirming, the New Hampshire Supreme Court indicated that it might have analyzed the case as falling within an exception to the common law rule of landlord immunity, but declined to do so. Although the stairway was not a common passageway, the court might have strained to find that the landlord still retained some control over it; the court might also have found a hidden defect, at least as to the infant decedent; or the court might have found that the landlord had been negligent in making repairs to the stairway. Instead, the court stated: “We think that now is the time for the landlord’s limited tort immunity to be relegated to the history books where it more properly belongs.” Id. at 533. The court held that “landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm,” id. at 534, and, more fully, “[a] landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.” Id. The court noted that this was a natural extension of a prior holding which had recognized an implied warranty of habitability in the landlord-tenant relationship. Id. at 533; Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971).
Among the cases which have followed Sargent are Mansur v. Eubanks, 401 So.2d 1328 (Fla. 1981); Thompson v. Crownover, 259 Ga. 126, 381 S.E.2d 283 (1989) (duty of care 1217*1217 based on statutory warranty of habitability); Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984) (statutory implied warranty of habitability cited); Old Town Dev. Co. v. Langford, 349 N.E.2d 744, 762 (Ind. Ct. App. 1976); Young v. Garwacki, 380 Mass. 162, 402 N.E.2d 1045 (1980) (reliance in part on warranty of habitability); Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290 (1985); Humbert v. Sellars, 300 Or. 113, 708 P.2d 344 (1985) (relying on implied warranty of habitability in Oregon’s URLTA); Mariorenzi v. DiPonte, 114 R.I. 294, 333 A.2d 127, 132 (1975); Favreau v. Miller, 156 Vt. 222, 591 A.2d 68 (1991); and Pagelsdorf v. Safeco Ins. Co. of America, 91 Wis.2d 734, 284 N.W.2d 55 (1979) (relying on implied warranty of habitability).
With the 1974 adoption in Alaska of the URLTA, the theoretical foundation of the traditional rule of caveat emptor has been undermined in this state as well. Landlords subject to the act have a continuing duty to “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” AS 34.03.100(a)(1). This means that landlords retain responsibility for dangerous conditions on leased property.
The duty of a tenant is to “keep that part of the premises occupied and used by the tenant as clean and safe as the condition of the premises permit[s].” AS 34.03.120(1). This obligation exists as part of the same statute which defines the landlord’s obligation to “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” AS 34.03.100(a)(1). It follows that the legislature intended these obligations to be reconcilable. Reconciliation can be accomplished by interpreting the tenant’s duty to pertain to activities such as cleaning, ice and snow removal, and other light maintenance activities pertaining to the safety of the premises which do not involve an alteration of the premises, whereas the landlord’s duty relates to the physical state of the premises. This distinction is suggested by the phrase “as the condition of the premises permit[s]” in section 120(1). In context this must refer to the inherent physical qualities of the premises.
Our case law has also reflected the trend toward a more general duty of care for landlords. In Webb v. City & Borough of Sitka, 561 P.2d 731 (Alaska 1977), we rejected the prevailing common law view that a landlord’s duty was controlled by the rigid classification of the person seeking compensation as a trespasser, licensee or invitee. Instead, we adopted a rule based on general tort law that an owner “must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden on the respective parties of avoiding the risk.” Id. at 733.
We now further expand the landlord’s duty of care in aligning Alaska with the jurisdictions following Sargent, and thus reject the traditional rule of landlord immunity reflected in Schaible. We do this because it would be inconsistent with a landlord’s continuing duty to repair premises imposed under the URLTA to exempt from tort liability a landlord who fails in this duty. The legislature by adopting the URLTA has accepted the policy reasons on which the warranty of habitability is based. These are the need for safe and adequate housing, recognition of the inability of many tenants to make repairs, and of their financial disincentives for doing so, since the value of permanent repairs will not be fully realized by a short-term occupant. The traditional rule of landlord tort immunity cannot be squared with these policies.
What we said in Webb concerning the nature of change in the common law is equally relevant to today’s decision:
The common law is not a rigid and arbitrary code, crystallized and immutable. Rather, it is flexible and adapts itself to changing conditions. After all, the common law “is but the accumulated expressions 1218*1218 of the various judicial tribunals in their efforts to ascertain what is right and just between individuals with respect to private disputes.” What may be considered a just disposition of a dispute at one stage of history may not be the same at another stage, considering changing social, economic and other conditions of society.
Webb, (quoting State v. Morris, 555 P.2d 1216, 1223 (Alaska 1976) (Boochever, C.J., dissenting)).
Our rejection of the general rule of landlord immunity does not make landlords liable as insurers. Their duty is to use reasonable care to discover and remedy conditions which present an unreasonable risk of harm under the circumstances. Nor does our ruling mean that questions as to whether a dangerous condition existed in an area occupied solely by the tenant or in a common area, or whether the condition was apparent or hidden, are irrelevant. These are circumstances which must be accounted for in customary negligence analysis. They may pertain to the reasonableness of the landlord’s or the tenant’s conduct and to the foreseeability and magnitude of the risk. In particular, a landlord ordinarily gives up the right to enter premises under the exclusive control of the tenant without the tenant’s permission. The landlord’s ability to inspect or repair tenant areas is therefore limited. In such cases “a landlord should not be liable in negligence unless he knew or reasonably should have known of the defect and had a reasonable opportunity to repair it.” Young v. Garwacki, 380 Mass. 162, 402 N.E.2d 1045, 1050 (1980).
The trial court observed in this case that slipperiness can be regarded as a hazard which comes within the tenant’s maintenance duties rather than the duties of the landlord to keep the premises safe. A tenant can throw sand onto wet and slippery boards. On the other hand, this method has limitations, especially in an area of near constant rainfall. A jury could find that a landlord in such an area should take any one of a number of steps relating to the physical condition of the premises which would prevent a board walkway from becoming dangerously slippery when wet.
In our view genuine issues of material fact exist as to whether the appellees breached their duty to Darline Newton to exercise reasonable care in light of all the circumstances with respect to the condition of the walkway. Determination of whether that duty was breached should be left for the trier of fact. We therefore REVERSE the trial court’s grant of summary judgment in favor of the Magills and REMAND this case for further proceedings.”
Legal Research –
Alaska Resources http://courts.alaska.gov/aklegal.htm
Law Resources Department of Law Documents http://law.alaska.gov/doclibrary/doclib.html
Alaska Supreme Court Opinions http://www.touchngo.com/sp/sp.htm
Wikipedia states “Alaska (Listeni/əˈlæskə/) is a U.S. state situated in the northwest extremity of the North American continent. Bordering the state to the east is Yukon, a Canadian territory, and the Canadian province of British Columbia, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia (specifically, Chukotka Autonomous Okrug and Kamchatka Krai) further west across the Bering Strait. Alaska is the largest state in the United States by area, the 4th least populous and the least densely populated of the 50 United States. Approximately half of Alaska’s 731,449 residents live within the Anchorage metropolitan area. Alaska’s economy is dominated by the oil, natural gas, and fishing industries, resources which it has in abundance. Tourism is also a significant part of the economy.” http://en.wikipedia.org/wiki/Alaska
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