Summary
The Nebraska Supreme Court reviewed a summary judgment in a negligence action arising from a tenant’s fall on allegedly defective entry steps. The court affirmed judgment for the landlord on the tenant’s failure-to-warn theory because the tenant knew or had reason to know of the condition and risk. It reversed and remanded on the failure-to-repair theory because the lease imposed responsibility for major repairs and genuine issues of material fact existed regarding the condition of the steps, the effectiveness of repairs, and the landlord’s notice.
Topics
Practice areas
Questions Presented
- Whether summary judgment was proper on Benard's claim that McDowall failed to warn her of the dangerous condition of the front steps.
- Whether genuine issues of material fact precluded summary judgment on Benard's claim that McDowall breached the lease-related duty to repair and maintain the property.
- Whether the district court improperly failed to address alleged willful and wanton conduct or contributory negligence.
Holdings
- Summary judgment for McDowall was proper because the undisputed evidence showed that Benard knew or had reason to know of the defective condition and the risk involved, so McDowall had no actionable duty to warn her under the applicable landlord-warning rule.
- Summary judgment for McDowall was improper because genuine issues of material fact existed regarding whether McDowall breached its contractual obligation to perform major repairs and exercise reasonable care in repairing and maintaining the leased property.
- The argument was properly rejected because Benard's complaint alleged negligence בלבד, and willful and wanton conduct was not properly before the district court on summary judgment.
Key quotations
“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 persons upon the land which the performance of the lessor’s agreement would have prevented; and (c) the lessor fails to exercise reasonable care to perform his contract.” (407-408)
“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 contracted to perform major repairs under the Lease.” (411)
Factual background
Danielle Benard was injured when the heel of her shoe became caught in a crack or gap between the front stoop and front step of the Omaha home she rented from McDowall, LLC. City housing inspections before and after the lease identified the front step as sunken and unsafe, while McDowall's representative testified that he had repaired the step before Benard's tenancy. Benard testified that the steps remained problematic, that relatives and visitors had tripped or experienced difficulty on them, and that McDowall's representative observed her navigating them cautiously. The lease assigned major maintenance and repairs not caused by the tenant's misuse, waste, or neglect to the landlord.
Procedural history
Benard sued McDowall for allegedly failing to repair and maintain the front steps of the leased home and failing to warn her about their dangerous condition. After discovery, the district court granted McDowall summary judgment and dismissed the complaint, concluding that the condition was open and obvious and that Benard knew of it. The Nebraska Supreme Court affirmed the judgment on the failure-to-warn theory but reversed the judgment on the failure-to-repair-and-maintain theory and remanded for further proceedings.
Remand instructions
The cause was remanded for further proceedings on Benard's theory that McDowall failed to exercise reasonable care to maintain and repair the property under the lease.