Opinion
No. 35586.
Filed March 13, 1964.
1. Landlord and Tenant. The word "repair" means to restore to a sound or good state after decay, injury, dilapidation, or partial destruction. 2. Landlord and Tenant: Torts. A lessor is liable for personal injuries to the tenant, or a member of his family, caused by a dangerous condition on the premises resulting from a failure to use reasonable care to make repairs in accordance with a covenant to repair where the lessor has been notified of the needed repairs.
Appeal from the district court for Douglas County: ROBERT L. SMITH, Judge. Affirmed.
Doerr Doerr, for appellant.
Schrempp, Lathrop Rosenthal, for appellee.
Heard before WHITE, C.J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action for damages brought by Violette A. Zuroski, the plaintiff, against W. R. Strickland. Strickland died during the pendency of the action and it was revived against The Omaha National Bank of Omaha, Nebraska, as executor of the estate of W. R. Strickland, deceased.
The jury returned a verdict in favor of the plaintiff in the amount of $4,500. The defendant's motion for judgment notwithstanding the verdict was overruled and it has appealed.
The record shows that on February 15, 1952, the plaintiff and her husband entered into an oral lease with Strickland for a residence property located at 4112 LaFayette Avenue in Omaha, Nebraska. The plaintiff produced evidence that as a part of the lease agreement Strickland agreed to take care of the repairs on the premises; that sometime in 1959 the guttering and downspout near the back door of the house became defective and allowed water to fall from the roof and collect on the concrete walk immediately outside of the rear door of the house; that Strickland was notified that the downspout was defective and needed repair but that the repairs were not made; that on February 11, 1961, water from melting snow and ice on the roof of the house had collecting on the walk outside the rear door of the house and ice had formed; and that the plaintiff was injured when she slipped and fell on the ice when she stepped out of the rear door of the house.
The defendant's assignments of error relate to the sufficiency of the evidence to sustain the verdict and whether a lessor is liable for damages for personal injuries resulting from the breach of a covenant to repair.
The defendant contends that the evidence failed to show that Strickland agreed to make the repairs to the premises, that he failed to keep the premises in repair, and that the failure to repair was a proximate cause of the plaintiff's injuries.
The word "repair" means to restore to a sound or good state after decay, injury, dilapidation, or partial destruction. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481. There was direct evidence that Strickland agreed to "take care of all the repair work on the house"; that repairs which were made on the premises were made at the direction of Strickland and at his expense; that the downspout leading from the roof above the rear door of the house had fallen down and that water coming from the roof was discharged directly onto the walk outside of the rear door of the house; that Strickland had been notified of the defective condition of the downspout on a number of occasions but no repairs had been made; that at the time of the accident water was dripping down from the roof in front of the doorway and ice had formed on the walk; and that the plaintiff fell on the ice as she stepped out of the back door of the house.
The defendant argues that the evidence as to proximate cause is insufficient because the ice near the rear door might have been formed in part from water draining from other areas. There was evidence that on the day of the accident there was snow and ice in other places on the ground around the house, but there was no evidence that water drained from these areas toward the back door and collected on the walk outside the rear door. As we view the record, the jury could find that ice had formed near the rear door of the house as the result of the defective guttering and downspout.
The remaining question is whether a lessor is liable for personal injuries which result from the breach of a covenant to repair. The authorities disagree as to whether a lessor can be held liable for personal injuries under such circumstances.
In Fried v. Buhrmann, 128 Neb. 590, 259 N.W. 512, a lessor was held liable when the stand upon which a gas plate rested collapsed and spilled hot water upon a child of the tenant. In that case the lessor had warranted that the furniture was safe and had agreed to keep it in repair. This court held that where a lessor leases a furnished apartment, warrants the safety of the furniture, and agrees to keep it in repair, it fixes his duty and he is liable to members of the tenant's family for injuries resulting from his negligence in failing to perform this duty.
In several subsequent cases this court has indicated that it did not consider the Fried case to be decisive of the question which we are now considering and that the question had not yet been determined in this jurisdiction. See, Van Avery v. Platte Valley Land Investment Co., 133 Neb. 314, 275 N.W. 288; Quist v. Duda, supra; Sipprell v. Merner Motors, 164 Neb. 447, 82 N.W.2d 648.
Although a majority of the early cases appears to have adopted the rule that the lessor cannot be held liable, it has been suggested that there is a modern trend toward the view that the breach of a lessor's agreement to make repairs constitutes a ground of liability for personal injuries suffered by the lessee or one of his family, and that the decisions appear to be about equally divided on the question. See Annotations, 78 A.L.R. 2d 1238 and 163 A.L.R. 300. In at least one jurisdiction an earlier case which adopted the rule of nonliability has been overruled. See Williams v. Davis, 188 Kan. 385, 362 P.2d 641.
As was pointed out in the Van Avery case, the American Law Institute adopted the view that the landlord is liable. Restatement, Torts, 357, p. 967, provides as follows:
"A lessor of land is subject to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after the lessee has taken possession, if
"(a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and
"(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented." The rule as stated is qualified under the heading of "Comment: * * * Nature of lessor's duty:" in part as follows: "Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Unless the contract stipulates that the lessor shall inspect the premises to ascertain the need of repairs, a contract to keep the interior in safe condition subjects the lessor to liability if, but only if, reasonable care is not exercised after the lessee has given him notice of the need of repairs."
It is our opinion that the rule as stated in the Restatement is the better view and it is the rule which we adopt as the law of this state. The reasoning which supported, the decision in the Fried case supports the decision which we have reached in this case.
The judgment of the district court is affirmed.
AFFIRMED.