Landlord Tenant Liability

March 30, 2006

The Court of Appeals recently issued Dutton v. McFarland, published, a premises liability case, discussing landlord liability to an invitee of its tenant. Dutton exited the property’s entrance and fell after she stepped from the front stoop onto deteriorated and uneven pavement. The pavement was covered by a rug placed there by Glass to dry. The Warren Circuit Court granted summary judgment to the McFarlands who leased the property to Shawnna Glass.

The Court summarized the state of landlord-tenant liability in Kentucky. In short, a landlord only has a duty to disclose a known defective condition at the time of leasing, which is neither known to the tenant nor discoverable through reasonable inspection. Otherwise, the tenant takes the premises as he finds them. When a tenant is put in complete and unrestricted possession and control of the premises … the landlord is only liable for the failure to disclose known latent defects at the time the tenant leases the premises. The duties of a landlord to persons on the leased premises by the consent of the tenant are the same as those owed to the tenant. If the tenant has no redress, than neither do those on the premises in the tenant’s right.

The Dutton’s argued, however, that the McFarlands were negligent per se for violating the International Property Maintenance Code adopted by the City of Bowling Green into its Code of Ordinances. They relied upon both KRS 13.081 and the case of Rietze v. Williams, 458 S.W.2d 613, 617 (Ky. 1970), which held properly adopted administrative regulations have the force and effect of law and when violated constitute an exception to this general rule. Unfortunately, KRS 13.081 was repealed in 1974 and Reitze was overruled by Centre College v. Trzop, 127 S.W.2d 562 (Ky. 2003), insofar as Reitze relied upon KRS 13.081 in holding that “KRS 446.070 allows recovery for violation of an administrative regulation.” Centre only allowed recovery for those public safety regulations enabled by and closely based on Kentucky statutes. The safety regulation relied upon was not adopted pursuant to an enabling statute enacted by the General Assembly, but instead is a municipal regulation. KRS 446.070 does not apply to municipal regulations. Since there were no other statutory or legal grounds for liability against the landlord, summary judgment was appropriate.

COMMENTARY: It is important to remember that a landlord is not responsible to a tenant or its invitees for defects in the premises unless, 1) the defect is known to the landlord but unknown or undiscoverable by the tenant at the time of leasing, or 2) it is an area of the premises that the landlord maintains custody and control over, i.e., common areas. In this case, neither condition existed and summary judgment was appropriate. Good primer language for personal injury cases involving landlord tenant issues.

Also, an interesting discussion of negligence per se and the basis for such a claim. Claim of negligence per se, involving safety regulations must extend from regulations adopted “pursuant to the exact mandate of their enabling statute.” Unless there is a statute that enables the safety regulation or is closely related to the safety regulation, the regulation cannot form the basis of a negligence per se claim. Municipal regulations do not typically fall into this category.

I have added a link to Ben Cowgill’s Ethics Blog. Ben’s blog has received quite a bit of attention from the blogging community. Given the nature of its subject matter, I think it is a wonderful resource for attorneys and well worth a look.

This bill was referred to the House Judiciary Committee on March 13, 2006. Several amendments have been attached, including those favorable to “tort reform.” These include setting maximum fees recoverable in negligence cases, allowing recoverable court costs to a party found not at fault, and a constitutional amendment, allowing the legislature to create statutory provisions, relating to medical malpractice. These amendments will likely kill this bill.

Pain and Suffering

March 17, 2006

In the case of Gatewood v. Duvall, unpublished, the Court of Appeals was called upon to consider, again, whether a plaintiff is entitled to a new trial when a jury awards medical expenses but nothing for pain and suffering. After a three day jury trial, the jury awarded $2,895.00 for past medical expenses but nothing for pain and suffering. Gatewood argued that the jury verdict was nonsensical. He attempted to distinguish Miller v. Swift by claiming that probative evidence of pain and suffering was introduced. This probative evidence was Gatewood’s own claims of pain and those of his physicians, based on his own subjective statements. The Court held that a jury is not required to believe a plaintiff’s claims of pain and suffering. It also noted that evidence was introduced from which the jury could have concluded that any pain Gatewood suffered was from conditions or injuries unrelated to the accident. The award of medical bills was not inconsistent and could have reflected a belief that Gatewood deserved to have his medical condition fully evaluated. It affirmed the trial court order.

Commentary: This case bears interest to me partly because Mike Krauser and I defended Mr. Duvall. It also raises an interesting issue regarding post Miller v. Swift cases when no pain and suffering is awarded. In this case, and typically, plaintiff will move for a new trial under CR 59.01 for inadequate damages based on “passion or prejudice.” The decision to grant a new trial is “discretionary”. The standard is whether or not the decision is “clearly erroneous.” If there is substantial evidence to support the verdict the decision is not “clearly erroneous.”

Under this analysis the question really isn’t whether the jury verdict is “inconsistent”. The real question is whether there was evidence supporting the judge’s decision. The emphasis is on evidence the jury could have considered in awarding nothing. Not, as often argued, on the jury’s reasons for awarding medical expenses and not pain and suffering. (Although that too was mentioned in this case). Evidence of prior or subsequent injuries or accidents is always going to support a judge’s denial of a new trial in this case.

What about those cases where the only evidence of pain and suffering is the testimony of the plaintiff that is not rebutted by this evidence. Can a jury disregard that evidence (as noted) and still award nothing? If so, what is the substantial evidence upon which the judge’s decision is based? While this result is often found in cases involving soft tissue injuries, can a similar result be reached when an objective observable injury is found. If so, is there a point when an injury requires an award of pain and suffering as a matter of law? Does a jury typically award pain and suffering in those cases or does a judge typically grant a new trial, leaving this a moot point? Does the award of medical expenses fit into this analysis at all? Whatever the case it appears well settled that an award of medical expenses without an award of pain and suffering does not, by itself, require a new trial.

Pop Culture and the Law

March 13, 2006

There was a time when federal judges could be relied upon to include a quote in their opinion. These quotes historically came from the classics of literature, medicine, drama, or historic speeches. Increasingly, in our society these “quotes” have failed to really grasp the situation the judge is trying to describe. Not surprisingly, more and more judges have turned to pop culture to get their point across. The smoking gun recently reported on a recent federal bankruptcy order, which denied a motion based on “incomprehensibility.” The judge felt compelled to issue an order containing a footnote setting forth how he really felt. It included the classic refrain in Billy Madison, a film starring Adam Sandler. “Mr. Madison, what you’ve just said is one of the most insanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.”

2006 Senate Bill 210

March 9, 2006

Michael Stevens and the Kentucky Law Blog recently reported on Senate Bill 210 which would: “Create a new section of KRS Chapter 411 to allow a plaintiff in a civil action where comparative fault becomes an issue, where suit was initiated against the original defendant within the statute of limitations, where the original defendant alleges that a third party caused or contributed to the plaintiff’s injury, and where the plaintiff would be barred by a statute of limitations from bringing a claim against that third party to either amend the complaint pursuant to Rule 15 of the Kentucky Rules of Civil Procedure or institute a separate action within ninety days of the filing of the first answer or amended answer alleging such third party’s fault; establish that the new cause of action is not barred by any statute of limitations.” This bill recently passed the Senate 38-0 on March 8, 2006.

Comment: This bill appears designed to correct what is perceived as an injustice to plaintiffs, which results when a defendant is added after the statute of limitation has passed. This position fails to consider that the timing of the complaint is the number one factor in whether the statute of limitation is even implicated. The timing is controlled by the plaintiff. The plaintiff also controls the parties who are named as defendants. Any problems that arise for the failure to properly investigate the claim and name all potential defendants should fall on the plaintiff. This bill is called “the lazy plaintiff bill” around the office, because it takes away any incentive the plaintiff had to identify all the defendants in the beginning.

Although it may be a defense strategy to name additional defendants for apportionment purposes, doing so after the statute of limitations is not typically a consideration. In fact, experience dictates that defendants would rather the additional defendant be liable to the plaintiff to increase the likelihood that the defendant will contribute to any proposed settlement. What this bill does is place a burden on a defendant who may not be sued until years after the cause of action accrues but will still be liable to the plaintiff. It does away with the entire purpose of statutes of limitation in the first place.


March 3, 2006

Gilliam v. Pikeville United Methodist Hospital, No. 2004-CA-001573-MR, published by the Court of Appeals. Gilliam was a hospital employee who served on the local contract negotiating committee. At issue was employee tardiness. During a meeting the Hospital accused Gilliam of being habitually tardy. Shortly thereafter a sarcastic flyer regarding the proposed tardiness policy was posted on the employee bulletin board. The Hospital suspected Gilliam and retaliated with a flyer of its own. While it did not mention Gilliam, it mentioned an “employee of the Hospital” and further identified him as “a member of the … negotiating committee.”

Gilliam sued. Because the statements occurred during a labor dispute, federal law preempted. Federal law required “actual malice”, as defined in New York Times v. Sullivan, 376 U.S. 254 (1964), and proof of damage to reputation and related damages. This is a higher standard than Kentucky law, which characterized the statements as “defamatory per se,” which are presumed injurious. The Hospital moved for summary judgment after Gilliam failed to testify to any damages in his deposition. In response Gilliam presented an affidavit outlining the actual injuries suffered.

The trial court granted summary judgment. The court of appeals affirmed. It noted; “[A]n affidavit which merely contradicts earlier testimony cannot be submitted for the purpose of attempting to create a genuine issue of material fact to avoid summary judgment.” The Court found the affidavit was merely an attempt to create an issue which was resolved by deposition testimony. It noted that, “Gilliam’s failure to set forth his damages during his deposition constitutes a judicial admission, which forecloses further dispute on the issue.”

Comment: The discussion of the difference in defamation “per se” and “per quod” is interesting, but the most important part of this opinion is the part dealing with the affidavit. Anyone who has had this happen knows the frustration when a party is allowed to avoid summary judgment by essentially contradicting his or her own testimony. This case puts together the case law on this issue and provides a good fact situation for future guidance.