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*Note: The following opinion was edited by AudioCaseFiles' staff.
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Borders v. Roseberry
216 Kan. 486, 532 P.2d 1366
Supreme Court of Kansas, 1975

Opinion by: PRAGER, J.

[. . .]
The sole point raised on this appeal by the plaintiff, Gary D. Borders, is that the trial court committed reversible error in concluding as a matter of law that a landlord of a single-family house is under no obligation or duty to a social guest of his tenant to repair or remedy a known condition whereby water dripped from the roof onto the front steps of a house fronting north, froze and caused the social guest to slip and fall.

At the outset it should be emphasized that we do not have involved here an action brought by a social guest to recover damages for personal injuries from his host, a possessor of real property. The issue raised involves the liability of a lessor who has leased his property to a tenant for a period of time. Furthermore, it should be pointed out that the plaintiff, a social guest of the tenant, has based his claim of liability against the landlord upon the existence of a defective condition which existed on the leased property at the time the tenant took possession.

Traditionally the law in this country has placed upon the lessee as the person in possession of the land the burden of maintaining the premises in a reasonably safe condition to protect persons who come upon the land. It is the tenant as possessor who, at least initially, has the burden of maintaining the premises in good repair. [. . .] The relationship of landlord and tenant is not in itself sufficient to make the landlord liable for the tortious acts of the tenant. [. . .] When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the responsibilites of one in possession, both to those who enter onto the land and to those outside of its boundaries. Professor William L. Prosser in his Law of Torts, 4th Ed. Sec. 63, points out that in the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. There is therefore, as a general rule, no liability upon the landlord, either to the tenant or to others entering the land, for defective conditions existing at the time of the lease.

The general rule of non-liability has been modified, however, by a number of exceptions which have been created as a matter of social policy. Modern case law on the subject today usually limits the liability of a landlord for injuries arising from a defective condition existing at the time of the lease to six recognized exceptions. These exceptions are as follows:
1. Undisclosed dangerous conditions known to lessor and unknown to the lessee.


This exception is stated in Restatement, Second, Torts Sec. 358 as follows:

"Sec. 358. Undisclosed Dangerous Conditions Known to Lessor

"(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if

"(a) the lessee does not know or have reason to know of the condition or the risk involved, and

"(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

"(2) If the lessee actively conceals the condition, the liability stated Subsection (1) continues until the lessee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions."

[. . .] It should be pointed out that this exception applies only to latent conditions and not to conditions which are patent or reasonably discernible to the tenant. [. . .]


2. Conditions dangerous to persons outside of the premises.


This exception is stated in Restatement, Second, Torts Sec. 379 as follows:

"Sec. 379. Dangerous Conditions Existing When Lessor Transfers Possession.

"A lessor of land who transfers its possession in a condition which he realizes or should realize will involve unreasonable risk of physical harm to others outside of the land, is subject to the same liability for physical harm subsequently caused to them by the condition as though he had remained in possession."

The theory of liability under such circumstances is that where a nuisance dangerous to persons outside the leased premises (such as the traveling public or persons on adjoining property) exists on the premises at the time of the lease, the lessor should not be permitted to escape liability by leasing the premises to another. The liability of the landlord for structural defects on leased property which causes injuries to persons outside of the premises was recognized and made the basis of a judgment against the landlord in Mitchell v. Foran, 143 Kan. 191, 53 P. 2d 490. Mitchell involved an awning hook which was fastened to the leased building and projected onto the public sidewalk and caused injury to a nine-year-old pedestrian.
3. Premises leased for admission of the public.


The third exception arises where land is leased for a purpose involving the admission of the public. The cases usually agree that in that situation the lessor is under an affirmative duty to exercise reasonable care to inspect and repair the premises before possession is transferred, to prevent any unreasonable risk or harm to the public who may enter.

[. . .]

4. Parts of land retained in lessor's control which lessee is entitled to use.


When different parts of a building, such as an office building or an apartment house, are leased to several tenants, the approaches and common passageways normally do not pass to the tenant, but remain in the possession and control of the landlord. Hence the lessor is under an affirmative obligation to exercise reasonable care to inspect and repair those parts of the premises for the protection of the lessee, members of his family, his employees, invitees, guests, and others on the land in the right of the tenant.

[. . .]

5. Where lessor contracts to repair.

At one time the law in most jurisdictions and in Kansas was that if a landlord breached his contract to keep the premises in good repair, the only remedy of the tenant was an action in contract in which damages were limited to the cost of repair or loss of rental value of the property. Neither the tenant nor members of his family nor his guests were permitted to recover for personal injuries suffered as a result of the breach of the agreement. [. . .] In most jurisdictions this rule has been modified and a cause of action given in tort to the injured person to enable him recovery for his personal injuries.

[. . .]

In Steele v. Latimer, we held that the provisions of a municipal housing code prescribing minimum housing standards are deemed by implication to become a part of a lease of urban residential property, giving rise to an implied warranty on the part of the lessor that the premises are habitable and safe for human occupancy in compliance with the pertinent code provisions and will remain so for the duration of the tenancy. Such an implied warranty creates a contractual obligation on the lessor to repair the premises to keep them in compliance with the municipal housing standards as set forth in a municipal housing code.

6. Negligence by lessor in making repairs.


When the lessor does in fact attempt to make repairs, whether he is bound by a covenant to do so or not, and fails to exercise reasonable care, he is held liable for injuries to the tenant or others on the premises in his right, if the tenant neither knows nor should know that the repairs have been negligently made. [. . .]

With the general rule and its exceptions in mind we shall now examine the undisputed facts in this case to determine whether or not the landlord can be held liable to the plaintiff here. It is clear that the exceptions pertaining to undisclosed dangerous conditions known to the lessor (exception 1), conditions dangerous to persons outside of the premises (exception 2), premises leased for admission of the public (exception 3), and parts of land retained in the lessor's control (exception 4) have no application in this case. Nor do we believe that exception 5, which comes into play when the lessor has contracted to repair, has been established by the court's findings of fact. It does not appear that the plaintiff takes the position that the lessor contracted to keep the premises in repair; nor has any consideration for such an agreement been shown. As to exception 6, although it is obvious that the repairs to the roof were not completed by installation of the guttering and although the landlord expressed his intention to replace the guttering, we do not believe that the factual circumstances bring the plaintiff within the application of exception 6 where the lessor has been negligent in making repairs. As pointed out above, that exception comes into play only when the lessee lacks knowledge that the purported repairs have not been made or have been negligently made. Here it is undisputed that the tenant had full knowledge of the icy condition on the steps created by the absence of guttering. It seems to us that the landlord could reasonably assume that the tenant would inform his guest about the icy condition on the front steps. We have concluded that the factual circumstances do not establish liability on the landlord on the basis of negligent repairs made by him.

In his brief counsel for the plaintiff vigorously argues that the law should be changed to make the landlord liable for injuries resulting from a defective condition on the leased premises where the landlord has knowledge of that condition. He has not cited any authority in support of his position, nor does he state with particularity how the existing law pertaining to a landlord's liability should be modified. We do not believe that the facts and circumstances of this case justify a departure from the established rules of law discussed above.

The judgment of the district court is affirmed.

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