Causes of Action: Torts, Premises Liability in landlord tenant context

From Mallipali v. Broaddus, COA, NPO, 2/18/2011

The ge|eral rule is that the tenant takes the premises as he finds them and a landlord is not liable for injuries to the tenant or his property because of defects in the leased premises in the absence of a contract or warranty as to the condition of the premises or to repair same, and where the landlord is guilty of no fraud or wilful wrong.

Clary v. Hayes, 300 Ky. 853, 190 S.W.2d 657, 659 (Ky. 1945), citing Lindsey v. Kentucky Dev. Co., 291 Ky. 253, 163 S.W.2d 499, 500 (Ky. 1942).

Malapelli offers no evidence of fraud or willful wrong on the part of Broaddus. The Kentucky Uniform Residential Landlord and Tenant Act defines “willful” as an action with “deliberate intention, not accidentally or inadvertently, and done according to a purpose.” Kentucky Revised Statute(s) (“KRS”) 383.545(17). While Broaddus admits he directed Malapelli not to remove the carpet runner, he did so only with the intent of keeping her or any guests from slipping on the staircase.

The law governing the landlord-tenant liability is further summarized in Lambert v. Franklin Real Estate Co., 37 S.W.3d 770 (Ky. App. 2000).

[A] landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection. However, [i]t has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein. [T]he landlord is under no implied obligation to repair the demised premises in the absence of a contract to that effect, nor is he responsible to a tenant for injuries to persons or property caused by defects therein, where there has been no reservation on the part of the landlord of any portion of the rented premises. In such cases the law applies to the contract or lease the doctrine of caveat emptor.
Id. at 775 (internal citations omitted).

When a tenant maintains complete control and possession over the premises
and the landlord has no contractual or statutory obligation to repair, the landlord is liable only for “the failure to disclose known latent defects at the time the tenant leases the premises.” Carver v. Howard, 280 S.W.2d 708, 711 (Ky. App. 1955). Only when a portion of the premises is retained by the landlord for the common use and benefit of numerous tenants, the landlord must exercise ordinary care to keep common areas in a reasonably safe condition. Id.

In this case, the defect was not latent. Malapelli testified she was aware of the defective carpet runner for more than two years prior to her fall. She and her boyfriend made repeated attempts to repair the carpet runner. Furthermore, the entirety of the premises was leased by Malapelli, and there were no shared
common areas. Thus, Broaddus did not retain control over a portion of the premises for the common use of numerous tenants. Absent a contractual or statutory duty to repair, Broaddus did not have a duty to repair, or even to remove, the carpet runner.

McIntosh Premises Liability Distinguished by COA relative to dangerous conditions

Gaines v. Diamond Pond Products, Inc.

2009-CA-000848 12/29/10 2010 WL 5343290

Opinion by Chief Judge Taylor; Judges Acree and Senior Judge Buckingham concurred.  The Court affirmed an order of the circuit court granting a directed verdict in favor of appellee and dismissing appellants’ negligence claim for injuries the minor appellant received while employed by appellee for an annual charitable activity.  The Court held that the trial court properly granted the directed verdict.  In reaching that conclusion, the Court first held that the trial court correctly concluded that appellee breached no duty of care owed to appellant as an employee.  The uncontroverted facts demonstrated that appellee provided appellant with a reasonably safe place to work and any injury he suffered was caused by his violation of appellee’s rules and occurred while he was engaged in activities outside the proper scope of his employment.  The Court next held that even if appellant was an invitee, appellee did not breach its duty of care by failing to warn of a dangerous condition on its premises.  While Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), modified the open and obvious doctrine, it did not abolish it.  Appellant’s injury was not a foreseeable harm that appellee could anticipate nor was it caused by a known or obvious condition and appellee had no duty to protect appellant from himself.

PROPERTY: Pendleton v. U.S. 60 Associates, LLC (COA 1/29/2010)

Pendleton v. U.S. 60 Associates, LLC
2008-CA-000744 01/29/2010 2010 WL 323143

Opinion by Judge Acree; Judge Lambert and Senior Judge Harris concurred. The Court affirmed a summary judgment in favor of appellees that ordered appellants to pay unpaid rent, unpaid property taxes and late fees for their failure to pay city and county property taxes as subtenants of commercial property. The Court first held that KRS 383.010(5) allowed the landowner to collect unpaid rent via direct action against the subtenants for rent accrued during their subtenancy. The Court then held that because the terms of the lease and sublease provided that payment of utilities, taxes and all other payments were deemed additional rent and could be collected the same as rent, the appellee could collect the unpaid rent, the unpaid property taxes and the late fees as rent.

PROPERTY – Foreclosures, Master commissioner: Arterburn v. First Community Bank (COA 11/20/2009)

Arterburn v. First Community Bank
2008-CA-002018 11/20/09 2009 WL 3878090

Opinion by Judge Clayton; Judge Acree and Senior Judge Harris concurred.

The Court affirmed in part, and reversed and remanded in part, an order of the circuit court denying appellants’ post-judgment motion to alter, amend or vacate orders of confirmation ordering payment to the master commissioner of fees and costs, appraiser’s fees and newspaper advertisement costs.

The Court held that the trial court did not err in determining that five separate tracts were named for foreclosure, resulting in five withdrawn sales.

The Court next held that the fees for the withdrawn sales of four of the tracts were correctly calculated under The Administrative Procedures for the Court of Justice, Part IV, Section 6(2). However, the Court held that the language of the regulation prohibited the commissioner’s fee on a withdrawn sale from exceeding $2,500. Therefore, the Court limited the fees for the withdrawn sale of one of the tracts to that amount.

TORTS : Goodman v. Goldberg & Simpson, P.S.C. (COA 10/16/2009)

Goodman v. Goldberg & Simpson, P.S.C.
2008-CA-000921 10/16/09 2009 WL 3321024 Rehearing Pending
Opinion by Senior Judge Harris; Judges Acree and Lambert concurred.

The Court affirmed a summary judgment granted in favor of lawyers (including appellant’s brother) and a law firm and dismissed appellant’s tort claims against them related to the distribution of assets from two estates. The Court held that the trial court correctly concluded that there were no genuine issues of material fact. First, even if appellant’s brother made alleged representations as to the division of their father’s estate, appellant provided no evidence that he relied upon the representations to his detriment other than to state that he would have initiated criminal proceedings against the father. The court next held that there was no evidence of a contract between appellant and the father so that his claim of intentional interference with contract must fail. The Court next held that the father did not owe appellant a fiduciary duty as an intended beneficiary of the mother’s estate so that his claim for aiding and abetting breach of fiduciary duty failed as a matter of law. The Court next held that there was no concrete evidence to establish that the brother committed any wrongdoing against appellant and it was the father’s prerogative to dispose of his estate as he saw fit. Therefore, the claim for the tort of outrage must fail. The Court next held that because there was no attorney-client relationship between the brothers, the claim of legal malpractice must fail. The Court next held that there was no evidence that the law firm or the attorney who drafted the father’s will had any knowledge of any purported agreement as to the distribution of assets and moreover, they owed a fiduciary duty to the father and therefore, the claim for breach of fiduciary duty and malpractice as to them must fail. The Court next held that the law firm did not owe a duty to appellant as an intended third-party beneficiary of the father’s will. The Court finally held that the trial court did not prematurely enter summary judgment. Appellees moved for summary judgment after two years after which the trial court allowed another six months of discovery, the record was voluminous, appellant had the opportunity to and did supplement the record, and appellant did not specify what significant information he was not able to obtain through discovery.

PROPERTY – Equitable subrogation, liens: Roberts v. Mortgage Electronic Registration Systems, Inc. (COA 10/30/2009)

Roberts v. Mortgage Electronic Registration Systems, Inc.
2008-CA-000262 10/30/09 2009 WL 3486594
Opinion by Judge Thompson; Chief Judge Combs concurred; Senior Judge Buckingham dissented by separate opinion.

The Court reversed and remanded an order of the circuit court granting a motion for default and summary judgment. The circuit court applied the doctrine of equitable subrogation and found that appellee’s lien had priority over appellant’s lien in a foreclosure action. The Court held that the trial court erred in applying the doctrine of equitable subrogation in reordering lien priorities to appellant’s detriment and that the liens should have been prioritized in accordance with KRS 382.280. The Court distinguished the narrow holding in Louisville Joint Stock Land Bank v. Bank of Pembroke, 225 Ky. 375, 9 S.W.2d 113 (1928), and held that the facts did not justify the relief sought when appellee lacked diligence in discovering appellant’s lien and appellant’s interest could be entirely or partially defeated if the property was sold for an amount insufficient to repay both appellant and appellee.

REAL PROPERTY – Easement: Jones v. Sparks (COA 10/16/2009)

Jones v. Sparks
2008-CA-002006 10/16/09 2009 WL 3321370
Opinion by Judge Lambert; Judge Stumbo and Senior Judge Henry concurred.

The Court affirmed a judgment of the circuit court finding that appellants did not have an easement to use a road on appellees’ property. The Court first held that because there was no written contract establishing an easement, legal title was barred by the statute of frauds, KRS 371.010. The Court then held that the trial court properly found that appellants were not entitled to equitable relief. There was no evidence that the deceased owner of the property conveyed a false impression or concealed a material fact related to the road, nor believed that appellants would rely on his conduct, so as to estop the owners of the property from denying the existence of an easement. Appellants’ claim for a quasi-easement failed as a matter of law, as there was no common ownership of the property. Appellants’ claim for an easement by way of necessity failed as they had another means of access to their property. Appellees were not unjustly enriched as appellant did not confer any benefit. The Court finally held that the trial court did not improperly admit statements made by the deceased as they were properly admitted under KRE 803(1) as an exception to the hearsay rule.

PROPERTY – KRS 67.0802 exchanges w/federal gov’t: Southside Real Estate Developers, Inc. v. Pike County Fiscal Court (COA 9/4/2009)

Southside Real Estate Developers, Inc. v. Pike County Fiscal Court
2008-CA-001534 9/4/09 2009 WL 2835138 Released for pub.

Opinion by Judge VanMeter; Judges Lambert and Moore concurred. The Court affirmed an order of the circuit court finding that a county fiscal court’s failure to comply with the requirements of KRS 67.0802 in its decision to exchange property conveyed to it from the federal government, after completion of a flood control project prevented appellant from maintaining an action to compel conveyance of the property from the fiscal court.

The Court first held that the trial court properly concluded that the decision to exchange the property did not comply with statute, which required either a transfer to another governmental agency or a public sale by auction or sealed bid. The Court then held that the requirements of the statute were not preempted by federal law so that the only requirement for transfer of the property would be the approval of the federal government. The Energy and Water Development Appropriation Act, under

which the flood control project was initiated, did not manifest Congressional intent to preempt state requirements on the transfer of real estate owned by counties; no express preemption existed; and compliance with both federal and state requirements concerning the transfer of real property was not physically impossible.

PROPERTY – Prescriptive easement, injunction: Little v. Hall (COA 9/25/2009)

Little v. Hall
2008-CA-001702 9/25/09 2009 WL 304764

Opinion by Judge VanMeter; Chief Judge Combs and Senior Judge Lambert concurred. The Court affirmed an order of the circuit court granting permanent injunctive relief barring appellants from obstructing a road across their property.

The Court held that after remand from the Court of Appeals, the trial court did not err in finding that appellees used the road under a claim of right and acquired a prescriptive easement across the property. Appellants offered no affirmative evidence to meet their burden of proving that appellees used the road by permission rather than under a claim of right and appellees satisfied the “very slight evidence” standard by producing evidence that they continued using the road in a manner consistent with a belief that they were entitled to do so indefinitely.

PROPERTY – Foreclosure, right of redemption: Eagle Cliff Resort, LLC v. KHBBJB, LLC (COA 9/4/2009)

Eagle Cliff Resort, LLC v. KHBBJB, LLC
2008-CA-000676 9/4/09 2009 WL 2835020 Released for pub.

Opinion by Judge Acree; Judge Dixon and Senior Judge Graves concurred. The Court affirmed an order of the circuit court confirming a judicial sale of commercial property following foreclosure by the mortgage holder.

The Court held that the trial court did not err by failing to protect appellant’s right of redemption under KRS 426.530(1). The trial court conducted a hearing to determine whether the appraisal was irregular, fraudulent or so erroneous as to be unconscionable. The trial court’s order set out, and the record substantiated, that the appraisal was sufficient to protect redemption rights. Despite the large gap between the appraisals by the court-appointed appraisers and the appraisal privately obtained, appellant failed to demonstrate any abuse of discretion by the circuit court.