Landlord Tenant Liability Part II

August 16, 2006

Those of you may recall my previous post regarding landlord tenant liability here. There I discussed the situation when a tenant is put in complete and unrestricted control of the premises. The Court of Appeals recently decided Whatley v. Blue Lick Apartments, Ltd., unpublished, which dealt with the situation involving “common areas,” remaining in the possession or control of the landlord.

Plaintiff Whatley fell down some steps containing ice and snow. The trial court granted summary judgment, relying on case law governing the duty of business owners to invitees. On appeal the Whatley Court noted that the duty owed by a landlord to a tenant to maintain common areas in his possession is heightened beyond that of a business owner. The landlord is required to exercise reasonable care to keep common areas reasonably safe. Factors to consider include the landlord’s actual or constructive notice of the condition, the length of time the condition existed, and the landlord’s opportunity to remedy the condition. The tenant’s actions must also be considered, including the necessity of traveling at that particular time and the availability of other means of ingress and egress. The Whatley Court correctly noted that there were material issues of fact regarding the reasonableness of the parties actions. It reversed the trial court’s summary judgment.

Important to note that the landlord’s duty in this instance is to “maintain.” Compare this to a business owner’s duty to warn. While the business owner’s duty to warn ceases if a condition is open and obvious, the landlord’s duty remains. The question then becomes whether his failure to maintain was “reasonable.” This is necessarily a question of fact. Put these two cases together and you have a must read primer on landlord tenant liability.

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