Benard v. McDowall, LLC , 298 Neb. 398 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
BENARD v. McDOWALL, LLC
Cite as 298 Neb. 398
Danielle Benard, appellant, v.
McDowall, LLC, appellee.
___ N.W.2d ___
Filed December 15, 2017. No. S-16-946.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Negligence: Proof. In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff, a breach
of such duty, causation, and damages.
4. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particu-
lar situation.
5. Summary Judgment: Proof. The party moving for summary judgment
has the burden to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the moving party
is entitled to judgment as a matter of law.
6. ____: ____. A prima facie case for summary judgment is shown by pro-
ducing enough evidence to demonstrate that the movant is entitled to a
judgment in its favor if the evidence were uncontroverted at trial.
7. Summary Judgment: Evidence: Proof. After the movant for summary
judgment makes a prima facie case by producing enough evidence to
demonstrate that the movant is entitled to judgment if the evidence was
uncontroverted at trial, the burden to produce evidence showing the
existence of a material issue of fact that prevents judgment as a matter
of law shifts to the party opposing the motion.
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BENARD v. McDOWALL, LLC
Cite as 298 Neb. 398
8. Landlord and Tenant: Liability. In Nebraska, the obligation of a land-
lord to warn of a dangerous condition on leased premises is based on the
Restatement (Second) of Torts § 358 (1965).
9. ____: ____. As a general rule, in the absence of statute, covenant, fraud,
or concealment, a landlord who gives a tenant full control and posses-
sion of the leased property will not be liable for personal injuries sus-
tained by the tenant or other persons lawfully upon the leased property.
10. Landlord and Tenant: Contracts. In the absence of an express agree-
ment to the contrary, a lessor does not warrant the fitness or safety of the
premises and the lessee takes them as he or she finds them.
11. Landlord and Tenant: Liability: Contracts. A lessor of land is sub-
ject to liability for physical harm caused to his lessee and others upon
the land with the consent of the lessee or his sublessee by a condition
of disrepair existing before or arising after the lessee has taken pos-
session if (1) the lessor, as such, has contracted by a covenant in the
lease or otherwise to keep the land in repair, (2) the disrepair creates an
unreasonable risk to persons upon the land which the performance of
the lessor’s agreement would have prevented; and (3) the lessor fails to
exercise reasonable care to perform his contract.
12. Negligence: Liability: Contracts. Liability in negligence based on con-
tract is dependent on the terms of the agreement.
13. Landlord and Tenant: Words and Phrases. The word “repair” means
to restore to a sound or good state after decay, injury, dilapidation, or
partial destruction.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Eric R. Chandler, of Law Office of Eric R. Chandler, P.C.,
L.L.O., for appellant.
Michael T. Gibbons, Aimee C. Bataillon, and Raymond E.
Walden, of Woodke & Gibbons, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Danielle Benard sustained injuries when she fell on the
entry step of the single-family home (Property) she rented. She
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BENARD v. McDOWALL, LLC
Cite as 298 Neb. 398
brought a negligence action against her landlord, McDowall,
LLC. The district court for Douglas County granted sum-
mary judgment in favor of McDowall, and Benard appeals.
Although the district court did not err in the portion of the
ruling in the summary judgment order with regard to Benard’s
theory that McDowall was obligated to warn her of a dan-
gerous condition on the Property, due to genuine issues of
material fact, the district court erred with respect to Benard’s
allegation that McDowall failed to repair and maintain the
Property as required by the November 1, 2011, lease (Lease).
We affirm in part, and in part reverse and remand for fur-
ther proceedings.
STATEMENT OF FACTS
Benard seeks damages for injuries she suffered after fall-
ing on the steps leading to the front entryway of the Property,
which she leased from McDowall. The Property was located in
Omaha, Nebraska.
Benard’s complaint alleged that on September 23, 2012, she
fell on the front concrete step of the Property and seriously
injured her ankle and sustained damages. In her deposition,
she testified that shortly before midnight, she was standing
on the front step, concluding a telephone call, and when she
stepped off the step, the heel of her shoe became stuck in a
crack or gap between the front stoop and the front step and she
lost her balance and fell to the ground. She gathered her cell
phone and keys and reentered the Property. Her fall resulted
in torn ligaments in her ankle, for which she ultimately under-
went surgery.
Benard presented evidence of ongoing disrepair of the front
entryway despite orders from a city housing code inspec-
tor to make repairs. Seven months prior to the execution of
the Lease, in March 2011, a housing code inspector for the
city of Omaha’s planning department (Planning Department)
had inspected the Property and, on April 5, 2011, notified
McDowall that occupancy of the Property was prohibited until
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BENARD v. McDOWALL, LLC
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repairs were made, because numerous violations made the
dwelling “unfit for human occupancy.” These violations for
“unsafe structure[s]” included the sinking front step, which
needed to be “mud jacked,” or lifted, leveled, and stabi-
lized. Benard claims that McDowall never notified her of the
safety code violations or completed the repairs ordered by the
Planning Department.
The record also contains a “Section 8” Omaha Housing
Authority inspection checklist completed prior to Benard’s fall,
dated July 31, 2012. The checklist indicates that the property
passed the Section 8 inspection for “Condition of Stairs, Rails,
and Porches.”
McDowall’s designated representative testified in his depo-
sition that prior to renting the house to Benard, he completed
all repairs required by the April 2011 Planning Department’s
list of violations. He testified that he jacked up the step using
a pry bar and some boards, reached underneath, and packed in
dirt and gravel to bolster the step.
In 2013, subsequent to Benard’s injury, the Planning
Department again inspected the Property and concluded that
no repairs had been made to the front steps and found that
the front steps were still in an unsafe condition. The Planning
Department housing inspector who conducted both the 2011
and 2013 inspections stated in an affidavit that “[d]uring
my inspection on April 5, 2013, I found that the previous
violations noted in the March 2011 inspection, including
the sunken front steps, had not been remedied, and that the
property had been unlawfully occupied.” On April 8, 2013,
the housing inspector issued an “Order to Vacate” regarding
the Property.
Benard testified at her deposition that she viewed the
Property once or twice prior to entering into the residential
Lease with McDowall. During her walk throughs, a McDowall
representative named “Chris” informed her that he “still had
to fix stuff on the house” and that he “was still working on
the house.” Benard could not recall whether “Chris” informed
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her of particular repairs. However, she denied seeing any “big,
glaring, red flags” at that time and she wanted to “hurry up
and move.”
The Lease contained provisions pertaining to safety and
maintenance, excerpted below:
9. Condition of Premises. Lessee stipulates that he has
examined the demised premises, including the grounds
and all buildings and improvements, and that they are,
at the time of the lease, in good order, repair, and a safe,
clean, and tenantable condition.
....
20. Maintenance and Repair. Lessee will, at his sole
expense, keep and maintain the leased premises and
appurtenances in good and sanitary condition and repair
during the term of this lease and any renewal thereof.
In particular, Lessee shall keep the fixtures in the house
or on or about the leased premises in good order and
repair; keep the furnace clean; keep the electric bills in
order; keep the walks free from dirt and debris; and, at
his sole expense, shall make all requested repairs to the
plumbing, range, heating[] apparatus, and electric and
gas fixtures whenever damage thereto shall have resulted
from Lessee’s misuse, waste, or neglect or that of his
employee, family, agent, or visitor. Major maintenance
and repair of the leased premises, not due to Lessee’s
misuse, waste, or neglect or that of his employee, family,
agent, or visitor, shall be the responsibility of Lessor or
his assigns.
(Emphasis supplied.)
Benard testified that at some point after she moved in,
she noticed that the front steps of the Property were sinking
in and shifting. Because of the condition of the steps, she
began to turn to the side and descend hip first. Benard testi-
fied that during the year she resided at the Property before she
was injured, several other friends and family members either
tripped on or expressed difficulty navigating the steps. During
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BENARD v. McDOWALL, LLC
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the year between her move-in date and her injury, Benard’s
niece and twin nephews had tripped on the step, and her niece
advised her that the step needed to be fixed. She testified that
when a representative of McDowall would come to collect
her rent, she would step outside her house and he would see
her navigate the steps sideways, inferring that McDowall was
on notice. Benard stated, however, that she did not explicitly
notify McDowall of her ongoing issues with the step and land-
ing or of any worsening of the condition.
On February 17, 2014, Benard filed this negligence action
to recover damages for the injuries she sustained in her fall.
She alleged that McDowall was negligent in failing to prop-
erly maintain and repair the front steps of the Property and for
failing to notify Benard of the defect in the front steps. In its
answer, McDowall alleged, inter alia, that Benard was negli-
gent to a degree sufficient to bar or reduce her recovery.
After the parties exchanged written discovery and took depo-
sitions, McDowall moved for summary judgment. Following a
hearing, the district court took the matter under advisement. In
its written order, filed July 13, 2016, the district court deter-
mined that there was no evidence that McDowall concealed or
failed to disclose the condition of the steps and that the condi-
tion was open and obvious. The court further found that the
undisputed evidence showed that Benard was aware of the con-
dition of the steps at the time she fell. Based on these reasons,
the court granted summary judgment in favor of McDowall
and dismissed the complaint.
This appeal followed.
ASSIGNMENT OF ERROR
On appeal, restated, Benard claims generally that the
district court erred when it granted summary judgment in
McDowall’s favor.
STANDARDS OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
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Cite as 298 Neb. 398
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Midland Properties v. Wells Fargo, 296 Neb.
407, 893 N.W.2d 460 (2017). In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted
and gives that party the benefit of all reasonable inferences
deducible from the evidence. Id.
ANALYSIS
In this negligence action, Benard alleged that McDowall
was liable because, as landlord of her rental home, McDowall
failed to maintain and repair the front steps and failed to notify
her of the defect in the front steps. McDowall denied the sub-
stantive allegations and alleged that Benard was contributorily
negligent. At the summary judgment hearing, McDowall pre-
sented evidence that Benard was aware of the condition of the
steps and the district court granted summary judgment in favor
of McDowall generally based on its reasoning that McDowall
had not concealed the danger.
Although the district court did not err in the portion of
the ruling in the summary judgment order with regard to
Benard’s theory that McDowall was obligated to warn her of
a dangerous condition, due to genuine issues of material fact,
the district court erred with respect to Benard’s allegation
that McDowall failed to repair and maintain the property as
required by the Lease. We affirm in part, and in part reverse
and remand for further proceedings.
A pplicable Law
[3,4] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plain-
tiff, a breach of such duty, causation, and damages. A.W. v.
Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010). The question whether a legal duty exists for actionable
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negligence is a question of law dependent on the facts in a
particular situation. Id.
[5-7] The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that
the moving party is entitled to judgment as a matter of law.
Tolbert v. Jamison, 281 Neb. 206, 794 N.W.2d 877 (2011).
A prima facie case for summary judgment is shown by pro-
ducing enough evidence to demonstrate that the movant is
entitled to a judgment in its favor if the evidence were uncon-
troverted at trial. Id. After the movant for summary judgment
makes a prima facie case by producing enough evidence to
demonstrate that the movant is entitled to judgment if the
evidence was uncontroverted at trial, the burden to produce
evidence showing the existence of a material issue of fact
that prevents judgment as a matter of law shifts to the party
opposing the motion. Id. In reviewing a summary judgment,
we give the party against whom the judgment was entered
all reasonable inferences deducible from the evidence. Id.
(citing Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d
707 (2010)).
This case involves a dangerous condition on the Property
governed by the Lease. The parties argue many theories not
repeated here which are not dispositive. The centerpiece of our
analysis are the long-established obligations between a land-
lord and a tenant with regard to (1) warning and (2) repairing
dangerous conditions on leased premises.
Landlord’s A lleged Failure to Notify
Tenant of Dangerous Condition
[8] In Nebraska, the obligation of a landlord to warn of
a dangerous condition on leased premises is based on the
Restatement (Second) of Torts § 358 (1965). The district
court’s analysis was guided by a summary of the law reflected
in a jury instruction, NJI2d Civ. 8.31, which, adjusted to this
case, provides as follows:
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Before [Benard] can recover against [McDowall on
her claim of failure to warn of the dangerous condition,
Benard] must prove, by the greater weight of the evi-
dence, each and all of the following:
1. That there was a condition on the [Property] that
involved an unreasonable risk of harm to [Benard];
2. That [Benard] was the lessee . . . ;
3. That [McDowall] knew or had reason to know of
this condition and realized or should have realized the
risk involved;
4. That [McDowall] concealed or failed to disclose the
condition to [Benard];
5. That [Benard] did not know or have reason to know
of the condition or the risk involved;
6. That [McDowall] had reason to expect that [Benard]
would not discover the condition or realize the risk;
7. That the condition was a proximate cause of some
damage to [Benard after she had taken possession of the
Property]; and
8. The nature and extent of that damage.
At the hearing on summary judgment, McDowall produced
evidence to show that it had no reason to expect that Benard
would not discover the condition or realize the risk. In this
regard, Benard’s testimony reflected that the condition of the
step and landing were known to her family and friends, includ-
ing young children; that she took precautionary measures due
to the settling of the entryway; and that she understood that
McDowall observed the worsening of the condition based
on the viewing of the property’s exterior by representatives
of McDowall.
Benard argues on appeal that McDowall did not have reason
to expect that she would realize the risk created by the steps.
However, Benard is unable to point to any material fact in
the record which shows the risk was concealed or difficult to
appreciate that would prevent summary judgment in favor of
McDowall on this theory. The district court did not err when
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it ruled in favor of McDowall on this theory, and we turn to
Benard’s remaining theory that McDowall breached its obliga-
tion to exercise reasonable care in repairing and maintaining
the leased Property.
Landlord’s Failure to R epair and M aintain
Property: Lease Provisions
[9,10] Regarding a single-family unit, the law may be sum-
marized as follows: “‘“As a general rule, in the absence of
statute, covenant, fraud or concealment, a landlord who gives
a tenant full control and possession of the leased property will
not be liable for personal injuries sustained by the tenant or
other persons lawfully upon the leased property.”’” Tolbert v.
Jamison, 281 Neb. 206, 215, 794 N.W.2d 877, 885 (2011). This
proposition is consistent with the Restatement, supra, § 356.
We have also stated that “[i]n the absence of an express agree-
ment to the contrary, a lessor does not warrant the fitness or
safety of the premises and the lessee takes them as he or she
finds them.” Tolbert v. Jamison, 281 Neb. at 216, 794 N.W.2d
at 885. See Roan v. Bruckner, 180 Neb. 399, 143 N.W.2d 108
(1966), abrogated, Heins v. Webster County, 250 Neb. 750, 552
N.W.2d 51 (1996).
[11] Section 356 of the Restatement notes that there are
several exceptions to the nonobligation of the landlord. One
exception is contained in the Restatement (Second) of Torts
§ 357 at 241 (1965), which provides:
A lessor of land is subject to liability for physical harm
caused to his lessee and others upon the land with the
consent of the lessee or his sublessee by a condition of
disrepair existing before or arising after the lessee has
taken possession if
(a) the lessor, as such, has contracted by a covenant in
the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to per-
sons upon the land which the performance of the lessor’s
agreement would have prevented; and
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(c) the lessor fails to exercise reasonable care to per-
form his contract.
The landlord’s duty under a contract to make repairs as reflected
in § 357 of the Restatement has been adopted in Nebraska.
Zuroski v. Estate of Strickland, 176 Neb. 633, 126 N.W.2d 888
(1964). See, also, Gehrke v. General Theatre Corp., 207 Neb.
301, 298 N.W.2d 773 (1980); Reicheneker v. Seward, 203 Neb.
68, 277 N.W.2d 539 (1979); Quist v. Duda, 159 Neb. 393, 67
N.W.2d 481 (1954).
[12] Liability in negligence based on contract is dependent
on the terms of the agreement. The Restatement, supra, § 357,
comment d. at 242-43, provides:
Since the duty arises out of the existence of the contract
to repair, the contract defines the extent of the duty.
Unless it provides that the lessor shall inspect the land to
ascertain the need of repairs, a contract to keep the prem-
ises in safe condition subjects the lessor to liability only
if he does not exercise reasonable care after he has had
notice of the need of repairs. In any case his obligation is
only one of reasonable care.
See, also, Gehrke v. General Theatre Corp., supra; Reicheneker
v. Seward, supra; Zuroski v. Estate of Strickland, supra; Quist
v. Duda, supra.
As noted above, paragraph 20 of the Lease between the
parties provided that “[m]ajor maintenance and repair of the
leased premises, not due to Lessee’s misuse, waste, or neglect
or that of his employee, family, agent, or visitor, shall be
the responsibility of Lessor or his assigns.” Thus, McDowall
contracted to make major repairs under the Lease. Further,
the record contains some evidence that McDowall made addi-
tional oral promises to Benard regarding future repairs on
the Property. According to Benard’s testimony, during her
visits with a McDowall representative to tour the Property,
the representative indicated that he “was still working on the
house” and “still had to fix stuff on the house,” from which
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we infer McDowall’s intention to make repairs consistent with
the Lease.
[13] “The word ‘repair’ means to restore to a sound or good
state after decay, injury, dilapidation, or partial destruction.”
Zuroski v. Estate of Strickland, 176 Neb. at 634, 126 N.W.2d at
890. McDowall does not contest that the work required to lift
and support the exterior concrete step and landing is a major
repair to the property and that major repairs are covered in
paragraph 20 of the Lease.
In the underlying complaint, Bernard pled, inter alia, theo-
ries of negligence based on McDowall’s alleged failure to
repair and maintain the steps. We consider the evidence regard-
ing initial repairs first. Through the Planning Department’s
2011 notice, Benard’s evidence showed that the step was in
need of repair at that time. And the affidavit from the hous-
ing code inspector from the Planning Department stated that
in 2013, he “found that the previous violations noted in the
March 2011 inspection, including the sunken front steps, had
not been remedied, and that the property had been unlawfully
occupied.” Benard also testified that the step was problematic
throughout her tenancy.
But the record is disputed regarding whether the steps were
repaired, and if so, whether the repairs were made before
or during Benard’s occupancy. Paragraph 9 of the Lease
provides that the tenant has “examined the demised prem-
ises, including the grounds and all buildings and improve-
ments, and that they are, at the time of the lease, in good
order, repair, and a safe, clean, and tenantable condition.”
The deposition testimony by a representative of McDowall
claimed that he repaired the step by raising it up and packing
additional dirt and sand underneath prior to Benard’s tenancy,
which he claims was done to remedy the housing code viola-
tion in 2011. As noted, the Section 8 inspection approved of
the condition of the steps. In contrast, Benard’s testimony
indicated that repairs, if made, were not effective during
her tenancy.
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In addition to the issue of whether McDowall exercised rea-
sonable care after it had notice of the initial need of repairs,
there is the further issue of whether McDowall had notice of
any worsening of the step or landing triggering its obligation
under the Lease to maintain the steps. Even if McDowall
performed repairs to the steps at some point, the record
contains additional issues of fact as to whether the repairs
were initially effective at eliminating unreasonable danger and
whether McDowall was aware thereafter of the worsening of
the condition. To this question, Benard testified that a repre-
sentative of McDowall routinely observed her negotiating the
steps in a cautious way when she met the representative in
front of the Property to pay her rent. Thus, if McDowall was
aware of the worsening or further settling, there is a question
of whether it exercised reasonable care after it had such notice
of the need of additional repairs. In sum, there are material
questions of fact regarding whether McDowall breached its
obligations to Benard. As such, McDowall failed to carry its
burden to show it was entitled to judgment as a matter of law.
The district court erred when it granted summary judgment
in favor of McDowall on the theory of McDowall’s failure
to repair.
Contributory Negligence
For completeness, we note that Benard seems to contend on
appeal that the district court erred by basing its decision on
her alleged contributory negligence. Because we do not read
the district court’s order as suggested by Benard, we reject
this argument.
Heins v. Webster County
On appeal, Benard claims that the district court erred
because it neglected to decide whether there was a material
issue of fact as to whether McDowall’s conduct was willful or
wanton. Benard cites our decision in Heins v. Webster County,
250 Neb. 750, 552 N.W.2d 51 (1996). Even reading Benard’s
complaint liberally, she alleges only negligence and the issue
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of willful and wanton conduct was not properly before the
district court on summary judgment. Further, Benard’s reli-
ance on Heins is not appropriate, because our holding did
not abolish the relationship between a landlord and tenant;
in Heins, we abolished the distinction between invitees and
licensees. See Warner v. Simmons, 288 Neb. 472, 849 N.W.2d
475 (2014). Benard’s argument is without merit. We reject
this argument.
CONCLUSION
Because the undisputed evidence shows that Benard knew
or had reason to know of the dangerous condition of the steps
and the risk involved, it was not unreasonable for McDowall
not to warn Benard of the defective steps. McDowall was enti-
tled to judgment on Benard’s theory based on failure to warn.
However, genuine issues of material fact preclude an award
of summary judgment in favor of McDowall on Benard’s
theory that McDowall failed to exercise reasonable care to
maintain and repair the Property where McDowall had con-
tracted to perform major repairs under the Lease. Accordingly,
the district court’s order of July 13, 2017, is affirmed in
part and in part reversed, and the cause is remanded for fur-
ther proceedings.
A ffirmed in part, and in part reversed and
remanded for further proceedings.
Wright, J., not participating in the decision.