Landlord’s Tort Liability
Under the common law the landlord had no duty to make the premises safe for the tenant and his or her guests. This doctrine was known as the doctrine of “caveat lessee” or, “let the lessee beware”. If there were dangerous aspects to the premises, it was the lessee that had the duty to fix them and it was only the lessee who would be liable for injuries that occurred on the premises. For example:
Jack leases an apartment from Roper. In the middle of the kitchen floor is a huge hole. On his first morning in the apartment, Jack, half asleep, wanders into the kitchen to make himself a pot of coffee and he promptly falls through the hole and gets severely injured. Under the common law rule, Roper bears no liability because it was Jack’s job to check out the condition of the apartment before he agreed to the lease.
However, as the theory of tort law has leaned more and more toward the direction of allowing the burden of tort liability to be borne by all those involved in causing the injury, the liability of landlords for injuries that occur on leased land has increased dramatically in modern times. Under the modern rules, a landlord can be liable for injuries that occur on the property in the following ways:
- Common Areas: The modern rule is that it is the duty of the landlord to keep safe the common areas that are shared by all the tenants of a building. Of course, this includes hallways in an apartment building as well as parking lots, etc. If, through the negligence of the landlord in failing to maintain the safety of one of these common areas, a tenant or a guest of a tenant gets hurt, the landlord will be liable.
- Latent Defects: If there is an unsafe condition within the tenant’s property that the landlord knows about but that would not be obvious to the tenant, the landlord has a duty to warn the tenant of the unsafe condition. Failure to issue such a warning will result in the landlord being liable for injuries caused by the dangerous condition. For example:
Jack leases an apartment from Roper. In the middle of the kitchen floor is a huge hole but the hole is covered by a carpet so that Jack cannot see the hole. One day, as Jack is walking across the kitchen to get to the refrigerator, he steps on the part of the carpet that has the hole underneath and he falls through the carpet and gets injured. Under the latent defects rule, Roper would be liable for Jack’s injuries.
- Assumption of Repairs: A landlord generally has no duty to repair conditions that arise during the lease term, unless the lease agreement states otherwise. However, if the landlord does undertake to do some repairs, he or she must do those repairs in a competent manner. If the repairs are done negligently, the landlord can be liable for any injuries that result from the negligent repairs. For example:
Jack leases an apartment from Roper. One day, the pipe beneath Jack’s sink bursts, turning the floor of Jack’s kitchen into Lake Superior. Jack calls Roper and informs him of the problem. Roper sends Josh, the superintendent, to fix the problem. Josh negligently fixes the plumbing. The next time Jack turns on his faucet, hot water shoots up and scalds Jack’s face. Jack can sue Roper for his injuries. Even though Roper did not have to repair the sink in the first place, once he agreed to do the repairs, he must do them competently.
- Statutory or Contractual Duty to make Repairs: Although a landlord is not generally obligated to repair the premises by virtue of the existence of the lease, a duty to repair can be imposed by a contract between the landlord and the tenant. In addition, laws in various jurisdictions attach certain general "duties to repair" on the landlord. If there is a duty to repair on the landlord from either of these sources, then the landlord will be liable if his or her failure to competently carry out these repairs causes damage or injury.
- The “Public Use” Rule: If the lease is for a very short term and the premises will be open for a public event, then it is obvious that the tenant will not inspect and repair any defects in the premises. Therefore, the landlord has a responsibility to assure that the premises are in a state of proper repair. Any injuries that result from a failure of the landlord to do so will subject the landlord to tort liability. For example:
The New York State Bar Association rents out the Jacob K. Javitz Convention Center in New York for their bi-annual administration of the Bar Exam. Steve is a law school graduate who is taking the exam. During the test, after using the restroom, Steve is hurrying back to his seat so as not to waste precious time. He promptly trips over a wide crack in the floor tiling and sustains injuries. Even though the Bar Association administers the exam, the Javitz Center’s owner will be liable for Steve’s injuries (assuming it was their negligence that caused the crack to be there). Since it should have been obvious that the Bar Association would not have time to inspect the premises, it is the Convention Center’s responsibility to make sure that the premises are not dangerous for the tenants and the tenants’ guests.
- Short Term Lease of a Public Dwelling: This exception covers hotels, motels and the like. The rule states that the owner of a public dwelling that is used for short periods of time by guests (ie. hotels) is liable for guests’ injuries if they come as a result of the negligence of the owner in allowing the dwelling to degenerate into a state of disrepair or if the owner’s negligence results in a dangerous condition that causes an injury to a guest.
The rationale behind this rule is the same as with regard to the “public use” rule. That is, a hotel guest obviously does not inspect his or her room before agreeing to lease it. Since the guest will only be there for a short period of time, it is unreasonable to expect the guest to inspect the entire room for dangerous conditions before he or she rents the room. Instead, the law shifts the responsibility to the owner of the hotel to make sure that the guest rooms are in safe condition.
One more point worth mentioning about the landlord’s tort liability is that all these rules are effective only in the absence of a contrary agreement between the landlord and the tenant. If the landlord includes an “exculpatory clause” in the lease (a clause that protects the landlord from tort liability for the tenant’s injuries), the landlord can protect himself from tort liability.
However, some courts will not enforce exculpatory clauses when it comes to residential leases. The reason for this is a supposed imbalance in bargaining power between a landlord and tenant. Also, some courts look at these clauses with disfavor because the courts assume that the relieving of the landlord from tort liability will cause him or her to be less careful about the safety of the premises, thus increasing the risk of personal injury to the tenants. See