Opinion
No. 106,732.
2012-11-9
Jaime SERDA, Appellant, v. Chuck G. MONROE, d/b/a Rental Management of Salina, Appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge. Larry G. Michel and Karen Q. Couch, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant. Ron D. Martinek, of Parker & Hay, LLP, of Topeka, for appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge.
Larry G. Michel and Karen Q. Couch, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant. Ron D. Martinek, of Parker & Hay, LLP, of Topeka, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jaime Serda brought this tort action to recover for his claimed personal injuries and damages sustained when he fell down the stairway in the apartment he rented from Chuck Monroe, the defendant and owner of the apartment. Following the close of discovery, the defendant moved for summary judgment on Serda's claims and his motion was granted. This appeal followed.
The standards for considering a motion for summary judgment are well known to the parties and to any reader we anticipate coming across this opinion. We need not repeat them here. For a refresher, they may be found in Osterhaus v. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011). On appeal, we review the defendant's summary judgment motion de novo. In doing so, it is helpful as a preliminary matter to examine the nature of the claims.
Claims and Defenses
In his petition Serda contends: “The accident was the result of Monroe's negligence in failing to properly maintain his property including, but not limited to, the failure to provide a handrail at the stairway and the failure to provide proper lighting in the stairway.” One of Monroe's uncontroverted facts set forth in support of his summary judgment motion, and conceded by Serda, is that Serda's negligence claim relates only to the lack of a handrail. On appeal, Serda asserts that Monroe was negligent per se for having violated the Salina Municipal Building Code by failing to install a handrail on the stairway. He makes no mention or argument that the district court should have preserved for trial his claim of inadequate lighting. Serda has abandoned any claim relating to the lighting in the stairway.
In opposing Monroe's summary judgment motion Serda argued that Monroe was negligent under two theories: (1) negligence per se in failing to comply with the Salina Municipal Building Code by installing a handrail, and (2) negligence in failing to comply with the Kansas Residential Landlord Tenant Act (KRLTA) by satisfying its requirement that Monroe as landlord comply with the local building code.
It is axiomatic that every claim of negligence must be predicated upon a showing of duty, breach, causation, and damages. Here, the central issue is whether Monroe had the duty to install a handrail in the apartment leased to Serda. Whether a duty is owed is not an issue for the jury. The existence of a duty is an issue of law to be determined by the court. See Herrell v. National Beef Packing Co., 292 Kan. 730, 736, 259 P.3d 663 (2011).
Uncontroverted Facts
We first turn to the uncontroverted facts that form the basis for a ruling on the motion.
Monroe owned a rental duplex in Salina. The property had been owned by his parents. The duplex was built in 1940, which was before Salina adopted its municipal building code.
When Monroe's father died in April 2008, Monroe served as a trustee for the property until his mother's death in May 2009. During that period Rental Management of Salina managed and maintained the property for Monroe. Monroe was never notified by the City of Salina that the property was in violation of any applicable building codes.
Serda signed a lease agreement to rent one of the duplex units in October 2008. The unit had three levels: an unfinished basement; a main floor with a living room, kitchen, small dining area, bedroom, and bathroom; and a second floor that apparently consisted of one large finished area.
Rental Management managed the property, collected the rent, and handled maintenance issues. Serda contacted Rental Management from time to time regarding maintenance issues, and Rental Management took care of them.
In March 2010, Serda moved his bedroom from the main floor to the second floor. He periodically had to go downstairs during the night to use the bathroom.
In the early morning hours of April 4, 2010, Serda slipped and fell while going down the stairway to use the bathroom. Serda contends that the presence of a handrail would have enabled him to avoid injury.
Before this event, and to the best of Monroe's knowledge, no tenant of or visitor to the property had claimed to have fallen on the steps due to the lack of a handrail.
Analysis
Serda asserts that Monroe violated Sec. 8–12.6.8 of the Salina Municipal Code by not installing a handrail in the interior stairwell, or in the alternative, Monroe was negligent pursuant to the KRLTA. In construing Salina's municipal ordinances we apply the same standards we use in construing statutes, such as the KRLTA. See Weeks v. City of Bonner Springs, 213 Kan. 622, 629, 518 P.2d 427 (1974).
“Under those rules, when a statute or municipal ordinance is plain and unambiguous, the court must give effect to express language, rather than determine what the law should or should not be. This court will not speculate on legislative intent and will not read the provision to add something not readily found in it. If the provision's language is clear, there is no need to resort to statutory construction.” Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 272–73, 241 P.3d 15 (2010).
Negligence Per Se for Code Violation
To establish his claim of negligence per se for failure to install a handrail as required by the Code, Serda must show: “(1) A violation of a statute, ordinance or regulation, and (2) the violation must be the cause of the damages resulting therefrom.” Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 25, 578 P.2d 1095 (1978).
The pertinent portions of the Salina Municipal Code are as follows:
“Sec. 8–1. International Building Code adopted.
“There is hereby adopted, by reference, by the city for the purpose of providing minimum standards to safeguard life or limb, health, property, and public welfare by regulating and controlling the design ... of all buildings and structures within the city ... that certain building code known as the International Building Code....
....
“Sec. 8–4. Amendment to Section 102.6 of the International Building Code.
....
“102.6 Existing Structures. The legal occupancy of any structure existing on the date of adoption of this code shall be permitted to continue without change, except as is specifically covered in this code, Chapter 18 of the Salina Municipal Code or the International Fire Code, or as is deemed necessary by the building official for the general safety and welfare of the occupants and the public.
....
“Sec. 8–12.6.8. Amendment to Section 1009.10 of the International Building Code “1009.10 Handrails. Stairways shall have handrails on each side and shall comply with Section 1012.”
Serda argues that the exemption for preexisting buildings found in Section 8–4 of the code does not apply to any code requirement specifically enumerated in Section 8, and handrails are specifically required in Section 8–12.6.8. In other words: (1) Section 8–4 exempts preexisting buildings; (2) but the code does not exempt preexisting buildings from a requirement specifically covered in this code; (3) the code specifically requires handrails in Section 8–12.6.8; (4) therefore, handrails are required under the code in preexisting buildings.
Serda also points to Section 8–1 of the code which expresses the public policy of “providing minimum standards to safeguard life or limb, health, property, and public welfare by regulating and controlling the design ... of all buildings and structures within the city.” He argues that it would be poor public policy for the City to enact health and safety regulations such as this and exempt all preexisting structures, and we should not construe the ordinance in such a way.
With regard to Serda's first argument against any handrail exemption for preexisting buildings, Serda's position, as argued before the district court at the hearing on Monroe's motion, is that
“the existing structure provision under Section [8–4] does not exclude existing structures from the provisions that have been specifically adopted by the Salina Commissioners from the International Building Code, the IBC. In fact, it's important to note, when you look through Chapter 8 of the Salina Code, there's actually references to parts and chapters of the IBC that have specifically not been adopted by the Salina City Commission. Therefore, it's saying in terms of what has been specifically covered, those provisions that it has methodically gone through and chosen to apply to buildings and structures within Salina.”
The problem with this theory is that it renders the exemption provision in Section 8–4 totally meaningless. The City could have simply stated in the code that its provisions apply to all preexisting buildings and could have made provision for retrofitting preexisting buildings to bring them into code compliance. But it did not. Rather, it declared: “The legal occupancy of any structure existing on the date of adoption of this code shall be permitted to continue without change, except as is specifically covered in this code.”
Serda construes this to mean: a preexisting building does not have to be brought into compliance with the code unless the code has some building requirement that a preexisting building fails to satisfy, in which case the preexisting building must be brought into compliance with the code. Such a circular argument makes no sense to us. It renders meaningless the code provision that preexisting buildings are “permitted to continue without change.” We presume that the City's governing body did not add this language to the code as a meaningless and useless gesture. See Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1269, 221 P.3d 588 (2009).
Section 8–12.6.8 of the code requires handrails on each side of a stairway. If the City had intended this provision to apply to preexisting buildings, it could have excepted nonconforming preexisting buildings from the exemption found in Section 8–4, but it did not. The only reasonable reading of these code provisions is that a nonconforming preexisting building does not have to comply with the code's handrail requirement.
With regard to Serda's argument based upon public policy, our task is not to second-guess the City's governing body on how to promote the public policy of protecting and enhancing public health and safety in Salina. Our analysis ends with the clearly expressed intention of the City to exempt preexisting buildings from its building code handrail requirement.
There is no genuine issue of material fact regarding Serda's claim that Monroe is negligent per se for having failed to comply with the City's handrail requirement, and Monroe is entitled to judgment as a matter of law on this claim.
Negligence for Violation of the Kansas Residential Landlord Tenant Act
Serda also proceeded on an alternative theory “[i]n lieu of negligence per se.” He stated:
“In the event that this Court finds that the Salina Code does not provide a private cause of action or should this Court otherwise dispose of Jim's negligence per se claim, then Jim hereby submits that his claim of negligence should be taken to the trier of fact under the theory that the Kansas Residential Landlord Tenant Act (‘KRLTA’) required Monroe to comply with Salina's building codes.”
The relevant portion of the KRLTA, K.S.A. 58–2553, provides:
“(a) Except when prevented by an act of God, the failure of public utility services or other conditions beyond the landlord's control, the landlord shall:
“(1) Comply with the requirements of applicable building and housing codes materially affecting health and safety.”
Serda relies on Jackson v. Wood, 11 Kan.App.2d 478, 726 P.2d 796,rev. denied 240 Kan. 804 (1986), and O'Neill v. Dunham, 41 Kan.App.2d 540, 203 P.3d 68 (2009), and contends that “residential landlords bear the burden of complying with building and housing codes affecting health and safety so long as they know or reasonably should have know of the condition of the property that led to the injury.”
Jackson v. Wood
In Jackson, Birdia Jackson died from carbon monoxide poisoning due to a faulty heater in a duplex owned by the defendant and rented to John Hollingsworth, Jackson's host. Jackson's children sued for the wrongful death of their mother, asserting several theories of liability, including the contention that the landlord was liable “in failing to maintain all heating and ventilating appliances in good and safe working order and condition in violation of K.S.A. 58–2553(a).” 11 Kan.App.2d at 479.
Jackson's children appealed the district court's order of summary judgment disposing of their claims. On appeal, the court noted one of several exceptions to the general rule found in Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975), of nonliability for injuries to a visitor caused by conditions on the leased premises. That exception was when the landlord contracts to repair the leased premises.
Hollingsworth and his landlord had a written lease, but Jackson's children had no evidence that the lease contained a repair clause. Instead, the children relied on K.S.A. 58–2553(a), which requires the landlord to “(3) maintain in good and safe working order and condition all ... heating, ventilating and air-conditioning appliances ... supplied or required to be supplied by such landlord.” The appellate court determined that the provisions of K .S.A. 58–2553(a) should be incorporated into the lease, thereby imposing on the defendant the duty to repair the faulty heater. Thus,
“if the landlord knew or reasonably should have known of a defective condition in the heating stove or ventilation, then the landlord owed a duty of reasonable care to repair so as to maintain the heating stove and ventilation in good and safe working order and condition.” Jackson, 11 Kan.App.2d at 483–84.
The problem for Serda is that Jackson is premised on the uncontested principle that the landlord owed a duty to maintain in safe operating condition the heater in the leased premises. That is not the situation before us in Serda's case. Here, the Salina building code exempts preexisting buildings from its code requirements. Monroe had no duty to install a handrail in the stairwell of his duplex.
O'Neill v. Dunham
In O'Neill, the plaintiff fell on a stairway, which had no handrail, while attending a party (to which he was not invited) at an apartment in Manhattan owned by the defendants. The defendants purchased the apartment building in 1990.
“The defendants conceded that apartment 2 had no handrail from 1990 until July 2004, the date of plaintiff's injury. They also admitted in their depositions that it was their responsibility, not the tenant's, to install and maintain a handrail on the stairs of apartment 2 according to the language of the rental agreement as well as the Code of Ordinances of the City of Manhattan, Kansas.” 41 Kan.App.2d at 544.
From the court's analysis that followed, we take this admission to relate to the defendants' acknowledgement that their apartment building was subject to the local building code, rather than an acknowledgement that they knew the stairway was dangerous because of the lack of a handrail. In any event, there was no issue in O'Neill regarding the application of the Manhattan code to preexisting structures. There is no indication that the Manhattan code even had an exemption for preexisting buildings.
The O'Neill court discussed Joe v. Spangler, 6 Kan.App.2d 630, 631 P.2d 1243 (1981), a case involving wiring and ventilation conditions that violated the Kansas City, Kansas, Housing Code. The landlord had been cited by a city housing inspector. There was no claim in Spangler that the landlord was not required to comply with the city housing code. The sole issue was whether the code violations rendered the premises uninhabitable. Citing Jackson and Spangler, the O'Neill court stated:
“When Jackson and Spangler are read together, it is clear that both courts recognized that it was important to determine whether a landlord knew or should have known of a violation of the applicable building code. In Jackson, the panel remanded the case to the district court to make such a determination. In Spangler, the trial court had already found as true the facts that the building inspector had sent notice to the landlord who therefore had knowledge of the violation of the building codes. We think this comports with traditional views of fairness in cases arising from premises liability.” O'Neill, 41 Kan.App.2d at 551.
The O'Neill court reversed the district court's order of summary judgment on this issue, apparently because there remained a genuine issue of material fact as to whether the defendants knew or should have known that the condition of their apartment building violated the local building code.
None of the cases Serda relies on presents a situation in which liability was imposed on a landlord based on a condition for which the landlord was exempted under the applicable building code because the landlord's nonconforming building predated enactment of the building code.
Serda argues that the evidence here establishes that Monroe knew or should have known there was no handrail in the stairway of his duplex because Monroe owned the building, he inspected the property before Serda moved in, and Monroe or his agents were in the apartment thereafter to make periodic repairs. (He also claims that Monroe was aware of the building code provisions because the code was referred to in the lease between the parties in various provisions that prohibited Serda from engaging in activities that would violate the code. But the code provisions cited in the lease apparently are not building code provisions but other city ordinances regulating parking, keeping sidewalks clear, and the like .)
Monroe argues strenuously that he had no notice regarding the condition of the stairway. He asserts that it is uncontroverted that he was never notified by a city code enforcement official that his building was not in compliance, and there is no evidence that some earlier fall on the stairway put him on notice that the stairway was dangerous. Regardless, it is clear to us that Monroe, the longtime owner of this property, had actual notice that the stairway in his duplex had no handrail.
But Serda's negligence claim is predicated upon Monroe having violated the provisions of K.S.A. 58–2553(a)(1), which imposes upon Monroe the duty to “comply with the requirements of applicable building and housing codes materially affecting health and safety.” At the oral argument before the district court on Monroe's summary judgment motion, the district court judge asked Serda's counsel, “How do you get to your ‘B’ argument if ... [Section 8–4] applies to this situation?” (Serda's “B” argument is his claim based on a violation of the KRLTA.) Serda's counsel responded, “We do have to have this Court find that existing structures had to comply with the handrail provision in order to get there.”
This comment reveals the link that is missing for Serda to succeed on his claim based on a violation of the KRLTA. Looking back on our analysis of Serda's negligence per se claim, it is clear that the building code handrail requirement does not apply to buildings that predate enactment of the code. Without this link, Serda conceded that his claim under the KRLTA fails.
Accordingly, we conclude that there is no genuine issue of any material fact, and Monroe is entitled to summary judgment on Serda's claim that Monroe is liable for negligence for failure to comply with the KRLTA.
Affirmed.