Pagelsdorf v. Safeco Ins. Co. of America

Opinion by: CALLOW, J.

We dispose of this appeal by addressing the single issue of the scope of a landlord's duty toward his tenant's invitee who is injured as a result of defective premises. Abrogating the landlord's general cloak of immunity at common law, we hold that a landlord must exercise ordinary care toward his tenant and others on the premises with permission.

The defendant Richard J. Mahnke owned a two-story, two-family duplex. There were four balcony porches: one in front and one in back of each flat. Mahnke rented the upper unit to John and Mary Katherine Blattner who lived there with their three children until Mr. Blattner left the family. [. . .]

[Plaintiff Pagelsdorf, an invitee of the Blattner’s, was injured due to a defective railing which the defendant did not know about]

The question on which the appeal turns is whether the trial court erred in failing to instruct the jury that Mahnke owed Pagelsdorf a duty to exercise ordinary care in maintaining the premises.

Prior to December 10, 1975, the duty of an occupier of land toward visitors on the premises was determined in Wisconsin law on a sliding scale according to the status of the visitor. [. . .] In Antoniewicz v. Reszczynski, 70 Wis.2d 836, 854-55, 236 N.W.2d 1 (1975), we abolished, prospectively, the distinction between the different duties owed by an occupier to licensees and to invitees[.]

[. . .]

The classification of visitors identified the degree of duty of the possessor or occupier of the premises. [. . .] When the property is leased, the duty of the landlord was controlled by a different rule: That, with certain exceptions, a landlord is not liable for injuries to his tenants and their visitors resulting from defects in the premises. [. . .] The general rule of nonliability was based on the concept of a lease as a conveyance of property and the consequent transfer of possession and control of the premises to the tenant. [. . .]

There are exceptions to this general rule of nonliability. The landlord is liable for injuries to the tenant or his visitor caused by a dangerous condition if he contracts to repair defects, or if, knowing of a defect existing at the time the tenant took possession, he conceals it from a tenant who could not reasonably be expected to discover it. [. . .] Additionally, the general rule is not applicable where the premises are leased for public use, or are retained in the landlord's control, or where the landlord negligently makes repairs. [. . .] The rule of nonliability persists despite a decided trend away from application of the general rule and toward expansion of its exceptions. [. . .]

None of the exceptions to the general rule are applicable to the facts of this case. The premises were not leased for public use, nor was the porch within Mahnke's control, nor did he negligently repair the railing. The plaintiffs argue that Mahnke contracted to repair defects; but according to Mrs. Blattner's testimony, Mahnke's promise extended only to items the Blattners reported as being in disrepair. Therefore, error cannot be predicated on the trial court's failure to give an instruction concerning Mahnke's constructive knowledge where the asserted contract was to repair defects of which Mahnke actually knew. Finally, the concealed-defect exception does not apply because there was no evidence that the dry rot existed in 1969 when the Blattners moved in and because Mrs. Blattner testified that she knew of the rot in the railing.

Therefore, if we were to follow the traditional rule, Pagelsdorf was not entitled to an instruction that Mahnke owed him a duty of ordinary care. We believe, however, that the better public policy lies in the abandonment of the general rule of nonliability and the adoption of a rule that a landlord is under a duty to exercise ordinary care in the maintenance of the premises.

Such a rule was adopted by the New Hampshire court in Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973). The plaintiff's four-year-old child fell to her death from an outdoor stairway of a residential building owned by the defendant. In a wrongful death action against the landlord, the plaintiff claimed the stairs were too steep and the railing inadequate. The jury awarded the plaintiff damages, and the landlord appealed from a judgment entered on the verdict. After eliminating the established exceptions to the rule of nonliability, the court concluded that the rule had nothing to recommend itself in a contemporary, urban society and ought to be abandoned. Instead, general principles of negligence should apply. The court stated that the "'quasisovereignty of the landowner'" had its genesis in "agrarian England of the dark ages." Id. at 530. Whatever justification the rule might once have had, there no longer seemed to be any reason to except landlords from a general duty of exercising ordinary care to prevent foreseeable harm. The court reasoned that the modern trend away from special immunities in tort law and the recognition of an implied warranty of habitability in an apartment lease transaction argued in favor of abolishing the common law rule of nonliability. Accordingly, a landlord's conduct should be appraised according to negligence principles. Questions of control, hidden defects, and common use would be relevant only as bearing on the general determination of negligence, including foreseeability and unreasonableness of the risk of harm.

In Antoniewicz, [. . .] we cited Sargent as one of many cases whose reasoning supported the abolition of the common law distinctions between licensees and invitees. The policies supporting our decision to abandon these distinctions concerning a land occupier's duty toward his visitors compel us, in the instant case, to abrogate the landlord's general cloak of immunity toward his tenants and their visitors. 1 Having recognized that modern social conditions no longer support special exceptions for land occupiers, it is but a short step to hold that there is no remaining basis for a general rule of nonliability for landlords. Arguably, the landlord's relinquishment of possession, and consequently control of the premises, removes this case from the sweep of the policies embodied in Antoniewicz. We are not so pursuaded. One of the basic principles of our tort law is that one is liable for injuries resulting from conduct foreseeably creating an unreasonable risk to others. [. . .] Public policy limitations on the application of this principle are shrinking. [. . .]

The modern-day apartment lease is regarded as a contract, not a conveyance. Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961). In Pines we determined that modern social conditions called for judicial recognition of a warranty of habitability implied in an apartment lease[.]

[. . .]

It would be anomalous indeed to require a landlord to keep his premises in good repair as an implied condition of the lease, yet immunize him from liability for injuries resulting from his failure to do so. We conclude that there is no remaining justification for the landlord's general cloak of common law immunity and hereby abolish the general common law principle of nonliability of landlords toward persons injured as a result of their defective premises.

At trial plaintiffs' counsel requested the jury be instructed that Mahnke owed Pagelsdorf, as his invitee, a duty of ordinary care. Pagelsdorf's proposed special verdict inquired whether Mahnke was "negligent in failing to keep the guardrail in question in a reasonably good state of repair." Thus Pagelsdorf preserved the assigned error for appeal. We simply reach the result he seeks by a different means. [. . .]

[. . .] Generally, a decision overruling or repudiating other cases is given retrospective operation. [. . .] The rule of landlords' nonliability was riddled with many exceptions; thus reliance on the rule could not have been great. [. . .] We find no reason to depart from the general rule of retrospective operation of the mandate herein.

In conclusion, a landlord owes his tenant or anyone on the premises with the tenant's consent a duty to exercise ordinary care. If a person lawfully on the premises is injured as a result of the landlord's negligence in maintaining the premises, he is entitled to recover from the landlord under general negligence principles. Issues of notice of the defect, its obviousness, control of the premises, and so forth are all relevant only insofar as they bear on the ultimate question: Did the landlord exercise ordinary care in the maintenance of the premises under all the circumstances?

By the Court. -- Judgment reversed and cause remanded for proceedings consistent with this opinion.