The Court of Appeals just published Miller v. Cundiff, which again discussed the liability a landlord has for defects on leased premises. The Court of Appeals agreed with the trial court that a landlord is ordinarily not liable for personal injuries caused by an open and obvious condition on the leased premises.

When Miller moved into her apartment, there was a three-inch gap in the carpet. Miller admitted that she noticed the condition when she first walked through the apartment, but claimed that she asked Cundiff to repair it. Miller stated that she made several additional requests for repairs. Cundiff denied receiving any such requests. Miller later tripped and fell over the gap in the carpet. Thereafter, she sought damages for her injuries under the common law and (URLTA), KRS 383.500 et seq. The Court of Appeals again set forth a landlord’s liability in Kentucky with respect to known or discoverable defects on the premises.

Miller argued that this common law did not apply for two reasons. First, she argued that Cundiff undertook a duty to make repairs by making promises. However, the Court reiterated the rule set down in Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188 (Ky.App. 2006), “that a landlord is not liable for injuries caused by breach of a covenant to make repairs to a leased premises. Rather, the remedy for breach of an agreement to repair is the cost of repair.” Second, Miller argued that under the URLTA, a landlord has a duty to “[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition[.]” KRS 383.595(1)(b). Because a separate section grants an aggrieved party the right to recover damages, Miller contended that the URLTA, when read as a whole, abrogated the common-law rule.

The Court noted that the legislature’s intention to abrogate the common law must be clearly apparent, and is not to be presumed. KRS 383.510 states that “[u]nless displaced by provisions of [the URLTA], the principles of law and equity . . . supplement [the URLTA’s] provisions.” This language clearly indicates that the URLTA was intended to supplement, not replace the common law. Therefore, Kentucky’s version of the URLTA does not demonstrate a clear intention on the part of the legislature to depart from the common-law standard for landlord liability. Moreover, unlike other jurisdictions which have enacted the URLTA on a state-wide basis, Kentucky merely authorizes individual counties and cities to adopt the provisions of the URLTA. KRS 383.500. Such a limited and local adoption of the URLTA does not lend itself to a conclusion that the legislature intended a sweeping modification of the common law. To the contrary, such a piecemeal abrogation of the common law would likely violate the constitutional provisions against local or special legislation.

Notice the difference between this ruling and the one in my post Landlord Tenant Liability Part II. Here the premises were in the complete control of the tenant, which implicates the defense of open and obvious. In areas where the landlord maintains some control, the open and obvious nature of the condition is only one element of reasonableness in the landlord’s failure to repair. The duty of course is higher and extends from the landlord’s refusal or inability to cede all control to the tenant. Where the landlord relinquishes control but agrees to or does maintain the premises, the breach of that contractual duty to repair implicates a contractual remedy, i.e., the cost of repair, not a tort one, i.e., personal injury damages. The duties imposed by the URLTA do not extend beyond the common law for breach of contractual duty to repair.

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The Kentucky Supreme Court has published Autry v. Western Kentucky Univ., which again dealt with the defense of immunity by a state agency. This case stems from the horrific death of Katie Autry at WKU and the subsequent wrongful death action by her parents against WKU and The Student Life Foundation, Inc. The opinion is important mostly for the background discussing immunity as it applies to state agencies. My quick tutorial:

A. Sovereign immunity applies to the state, legislators, prosecutors, judges, and others doing essential work for the state and it is absolute.

B. Governmental immunity extends to state agencies that perform governmental functions AND are supported by money from the state treasury AND were created for that purpose.

1. Official immunity: If a state agency is deemed to have governmental immunity its officers or employees have official immunity when they are sued in their official or representative capacity or it involves official acts.

2. Qualified official immunity: If officers or employees are sued in their individual capacities, they have qualified official immunity if their acts are:

1a. Discretionary, ie, made in good faith and within the scope of their authority or employment. An act is not discretionary merely because some judgment is used in deciding on the means of method used.

2a. Discretionary acts that violate constitutional, statutory, or other clearly established rights are not entitled to immunity or if they are done willfully or maliciously with intent to harm or committed with a corrupt motive or bad faith.

3a. Ministerial, ie, absolute, certain, and imperative, involving the mere execution of a specific act based on a fixed and designated facts are not entitled to immunity.

  • If the ministerial acts are proper, then the public officer or employee has official immunity (see A. above) without qualification.

4a. If an official act is done by a public officer or employee which is known or should have been known by that officer or employee to be a violation of constitutional right or done maliciously to cause injury, there is no immunity.

Simple right? The time and effort required to reach a decision is the best evidence that immunity is an archaic concept that has outlived its usefulness. At the least it should be simplified and used only in limited circumstances.

I was fortunate to be invited to the second annual Kentucky blogger and online journalists’ (for you Michael) bull*&^%together on May 10, 2007. Our excellent host was Diana Skaggs of the Divorce Law Journal. Michael Stevens of the Kentucky Law Review and Kentucky Cases was present as were two relatively new bloggers. Trevor Wells of SCOKY made his first appearance, as did Finis Price of TechnoEsq, which I quickly found out is his blog’s attempt to discuss the integration of technology into his new solo practice.

I thoroughly enjoy these gettogethers, too much some would say. But the chance to meet others who have chosen to torment their lives by blogging about the law always leaves me with a new found respect for what we do and perhaps a better appreciation of my own blog. My only complaint is we don’t get together more often. I hope my colleagues feel the same and that they continue their blogs, journals, reports or reviews for a very long time.

My thanks again to our excellent host Diana Skaggs. As usual the food and drink were fantastic, the view wonderful, and the conversation stimulating. Its bad enough we do this for free, but Diana opens her home and spends her own money to entertain hooligans like me.

I recommend Finis’ blog and I have added a link to his site. I hope you will continue to read and comment on my colleagues’ blogs as well. Your participation and words of encouragement are ultimately the only thing that keeps this technological phenomenon going.