Opinion
No. 73-052
Decided February 13, 1974. Rehearing denied March 5, 1974. Certiorari granted April 29, 1974.
Action to recover for wind damages sustained by plaintiff's airplane while it was stored in a "tie-down" space at defendant's outdoor facility. From judgment for plaintiff, defendant appealed.
Reversed
1. LANDLORD AND TENANT — Proper Characterization — Relationship — Owner of Airplane — Defendant — Outdoor Facility — Where Airplane Stored. Although relationship between owner of airplane and defendant at whose outdoor facility the airplane was stored is not the traditional one of landlord-tenant, such relationship is a proper characterization of the legal position of the parties.
2. Liability of Landlord — Latent Defects — Conditions Described. A landlord is liable for damages to his tenant's property resulting from latent defects if he fails to disclose a condition which creates an unreasonable risk of harm and (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 he realizes or has reason to expect that the lessee will not discover the conditions or realize the risk.
3. Action — Wind Damage — Airplane Stored — Defendant's Facility — No Evidence — Knowledge — Defective "Tie-down" System — Should Have Granted — Motion to Dismiss. In action for wind damage sustained by plaintiff's airplane while it was stored at defendant's outdoor facility, since plaintiff presented no evidence which would permit the inference that defendant as a landlord knew or should have known that the airplane "tie-down" system was defective, defendant's motion to dismiss should have been granted.
Appeal from the District Court of the County of Jefferson, Honorable Ronald J. Hardesty, Judge.
Thomas R. Moeller, for plaintiff-appellee.
Blunk, Johnson Allspach, Howard G. Allspach, for defendant-appellant.
Defendant King Resources Company, d/b/a Denver Airmotive Company, appeals from a judgment awarding plaintiff Hoffman $2,750 for damages to plaintiff's airplane. We reverse.
In August 1969, plaintiff rented from defendant a "tie-down" space in which to store his private airplane at defendant's outdoor facility at Jefferson County Airport. Under the terms of the lease the owner of a plane was obligated to tie down his own plane. The equipment used to secure the airplane, all of which was furnished by defendant, consisted of a steel cable stretched between two cement anchoring devices embedded in the ground, to which two chains were attached. In order to anchor the plane to the ground, the owner would attach one of these chains to a strut on each wing of his aircraft. The rear wheel was secured with a chain attached to a second cable. The wing strut chains were free to move in either direction along the cables. While tied down at defendant's facility, plaintiff's airplane was flipped onto its back during a windstorm in February 1970, and was extensively damaged.
Plaintiff brought suit alleging that defendant was negligent in designing and constructing the tie-down system, and in failing to supply equipment which was strong enough to withstand the frequent high winds at Jefferson County Airport. Defendant denied negligence and asserted affirmative defenses of contributory negligence and assumption of the risk. These issues were submitted to the jury, which found for plaintiff.
Defendant raises several issues on appeal, but we need discuss only one, since it requires reversal of the case. At the close of plaintiff's evidence defendant moved for a directed verdict on the grounds that the relation ship between the parties was that of landlord and tenant and that therefore defendant's duty to plaintiff was limited to warning plaintiff of known defects which created an unreasonable risk of harm to plaintiff's property. He further argued that plaintiff's evidence was insufficient to show that defendant had breached this duty. The trial court denied this motion, as well as similar motions made at the close of all the evidence and after the return of the jury's verdict. We agree with defendant's contentions.
[1,2] Although the facts of this case do not present a traditional landlord-tenant relationship in which premises are demised for the occupancy of the tenant, we believe that this is a proper characterization of the legal positions of the parties. Under Colorado law, a landlord is liable for damages to his tenant's property resulting from latent defects if he fails to disclose a condition which creates an unreasonable risk of harm and (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 he realizes or has reason to expect that the lessee will not discover the condition or realize the risk. Baughman v. Cosler, 169 Colo. 534, 459 P.2d 294; Girardot v. Williams, 102 Colo. 456, 80 P.2d 433; Thum v. Rhodes, 12 Colo. App. 245, 55 P. 264.
[3] In reviewing the motion for a directed verdict, we must view the evidence in a light most favorable to the party against whom the motion is directed. "A motion for directed verdict can only be granted where the evidence, when so considered, compels the conclusion that the minds of reasonable men could not be in disagreement and that no evidence, or legitimate inferences arising therefrom, has been presented upon which a jury's verdict against the moving party could be sustained." McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778. Plaintiff presented no evidence which would permit the inference that defendant knew or should have known that the tie-down system was defective. Thus, since plaintiff failed to present evidence that defendant as a landlord breached any duty owed to plaintiff as a tenant, defendant's motion to dismiss should have been granted.
The judgment of the trial court is reversed and the cause remanded with directions to set aside the judgment and to dismiss the complaint.
JUDGE COYTE concurs.
JUDGE PIERCE dissents.