Opinion
No. C98-0066.
November 15, 1999.
ORDER
This matter comes before the court pursuant to the defendant Dennis Andresen's September 4, 1998 motion for summary judgment (docket number 14). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the defendant's motion for summary judgment is denied.
In this case, plaintiffs Greg and Denice Williamson, individually and as next friends of Nicholas Williamson, a minor plaintiff bring a personal injury claim against Rick Andresen, Denise Andresen, and Dennis Andresen, premised on a negligence theory. This diversity jurisdiction claim arises out of a personal injury sustained by Nicholas Williamson while on the farm owned by Dennis Andresen and rented by Rick and Denise Andresen, Dennis' son and daughter-in-law. Dennis Andresen claims that he is entitled to summary judgment.
Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)). In applying these standards, the court must give the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. Krause v. Perryman, 827 F.2d 346, 350 (8th Cir. 1987).
Statement of Material Facts Not in Dispute
During at least part of the summer of 1996, Nicholas Williamson lived with Rick and Denise Andresen, his aunt and uncle. During the summer, Nicholas Williamson also lived with both his maternal and paternal grandparents as part of a casual arrangement among family members. At no time did Nicholas live with Dennis Andresen, Rick Andresen's father.
Dennis Andresen owned the property upon which Nicholas Williamson sustained his injuries, but was leasing it to his son and daughter-in-law, Rick and Denise Andresen at the time. Under the terms of the lease, Rick and Denise Andresen, as tenants, bore the entire expense for farming the rented land. Dennis Andresen reserved no space to store his own grain crops on the leased farm. As further provided for by the lease, Rick and Dennis Andresen did not share the crops grown on the leased property. Likewise, they did not share any profits or risk of loss. Dennis Andresen did reserve the right to enter upon the property at any reasonable time to make repairs and did assume the responsibility to provide the necessary materials for repairs. Dennis Andresen maintains insurance on the property, including bodily injury liability coverage. On occasion, Rick and Dennis Andresen would assist one another in their farming operations.
On July 30, 1996 Dennis Andresen was present on the leased property helping Rick Andresen load grain into a grain crib. While Rick and Dennis Andresen were loading the grain, Nicholas Williamson entered the grain crib. Dennis Andresen observed Nicholas Williamson do this and glared at Nicholas Williamson. When Dennis Andresen looked away, Nicholas Williamson proceeded further into the grain crib to speak to Rick Andresen. Nicholas Williamson's shirt caught on a sprocket and pulled his hand into the elevator, causing him injury.
CONCLUSIONS OF LAW Negligence — A Landlord's Duty
Williamson claims that Dennis Andresen and the other defendants were negligent and that their negligence was the proximate cause of Nicholas Williamson's injuries and his parents' damages. Specifically, Williamson contends that defendants were negligent in their failure to properly instruct Nicholas, by allowing Nicholas to work with a dangerous device, in their failure to provide a safe work place, and in their failure to supervise Nicholas. Williamson further claims that the defendants failed to procure workers' compensation insurance, and are liable under Iowa Code § 87.21. Alternatively, Williamson argues that defendants are liable under Iowa common law. Williamson contends that Dennis Andresen is liable by virtue of the fact that he owned the property on which the accident occurred and had control over such property.
Dennis Andresen argues that although he owned the property on which Nicholas was injured, he did not exercise nor retain control over the property. Dennis Andresen points to several provisions in the lease to support his argument. Therefore, Dennis Andresen contends that he was under no duty to protect, warn, supervise, or control Nicholas, and was under no duty to maintain or repair the property. Dennis Andresen also argues that he cannot be liable for his negligence in allowing Nicholas to work with a dangerous devise or for failing to provide Nicholas a safe work place because Dennis was not the employer of Nicholas, and Nicholas was not performing work for Dennis when the accident occurred.
The essential elements of a negligence claim are: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a breach of that duty; (3) proximate causation; and (4) damages. Bockelman v. State Dep't of Transp., 366 N.W.2d 550, 552 (Iowa 1985). Generally speaking, a landlord is not liable for injuries to the tenant occurring on the premises. Wright v. Peterson, 146 N.W.2d 617, 620 (Iowa 1966). The law presumptively regards the tenant of the property as the "owner for the time-being and subject to all the responsibilities of one in possession to one who enters upon it by invitation." Boyer v. Iowa High School Athletic Ass'n, 152 N.W.2d 293, 298 (Iowa 1967); Hull v. Bishop-Stoddard Cafeteria, 26 N.W.2d 429, 445 (Iowa 1946). However, this general rule is subject to exceptions. A landlord who retains control over the premises or agrees to repair the premises owes a duty of care to an invitee. Poyzer v. McGraw, 360 N.W.2d 748, 751 (Iowa 1985); Byers v. Evans, 436 N.W.2d 654, 655 (Iowa Ct.App. 1988). Absent retention of control or an agreement to repair, unless the landlord actively conceals or conceals by failing to disclose hidden or latent defects of which the landlord has knowledge (actual or constructive), the tenant assumes the risk of safe occupancy for himself and those entering by his invitation. Casey v. Valley Sav. Bank, 300 N.W. 733, 736 (Iowa 1941); Wright, 146 N.W.2d at 620.
The duties and liabilities of a landlord to persons present on the leased premises at the invitation of the tenant are the same as those owed to the tenant himself. Casey v. Valley Sav. Bank, 300 N.W. 733, 736 (Iowa 1941).
Retention of Control
Both sides of this dispute point to provisions in the lease to further their argument that Dennis Andresen either did or did not retain control over the premises upon which the accident occurred. In support of his argument that Dennis Andresen retained control over the premises, Williamson points to ¶ 15 of the lease which provides, in relevant part: "Landlord may enter upon the Real Estate at any reasonable time for the purpose of viewing or seeking and making repairs, or for other reasonable purposes." Williamson also points to ¶ 20 of the lease, which provides:
20. REPAIRS. Tenant agrees to maintain the Real Estate, including hedges and fences, in good and proper repair. Landlord agrees to furnish necessary materials for repairs that Landlord deems necessary, and shall furnish the materials within a reasonable time after being notified of the need for repairs. Tenant agrees to haul the materials to the repair site without charge to Landlord.
Williamson also argues that Dennis Andresen's act of procuring insurance for the property shows that he retained control over the property.
Dennis Andresen argues that this accident occurred in the grain crib and involved an elevator, neither of which he retained any control over. In support of this argument, Dennis points to ¶ 18 of the lease which provides, "Landlord reserves 0% of all crib and granary space for storage of the rent share crops."
This court has reviewed the lease agreement at issue. It appears that Dennis Andresen and Rick Andresen intended to keep their farming operations separate, with Dennis bearing none of the expenses and none of the risk of loss for farming the acres leased to Rick. It also appears, as several provisions in the lease illustrate, that Dennis intended to retain a certain level of control over the farm he rented to his son, Rick. For example, as set forth in ¶ 3 the landlord reserves the right to designate and direct the preparation of the land for the planting of the crops, and the planting itself. Furthermore, according to ¶ 3, the "[t]enant shall only be entitled to pasture or plow those portions of the Real Estate designated by the Landlord." Under ¶ 5, if the tenant fails to properly care for the crops, the landlord reserves the right to enter upon the property and do so. Furthermore, under ¶ 15, as pointed out by Williamson, the landlord reserved the right to enter upon the land "at any reasonable time for the purpose of viewing or seeding and making repairs, or for other reasonable purposes." Under ¶ 22, the tenant is forbidden from incurring any expense "for or on account of the Landlord without first obtaining Landlord's written authorization." Under ¶ 32, "ADDITIONAL PROVISIONS," the lease further provided that,
A. No corn sileage (sic) will be removed.
B. Any oats ground will be sowed with alfalfa or clover.
C. Landlord and tenant will take soil samples at beginning of lease and tenant will maintain fertility of soil at least at that level.
D. No seed corn allowed on land.
Dennis retained sufficient control over his farm to preclude summary judgment. Further, he was present and working with the instrument of injury owned by him on his farm when the accident occurred.
Failure to Warn
Dennis Andresen argues that the grain elevator which caused Nicholas Williamson's injury does not constitute a hidden danger requiring remedy or warning from him at the commencement of the lease. Dennis further argues that because of Rick Andresen's familiarity with the piece of equipment at issue, no further warning or notice to Nicholas Williamson was required.
Williamson contends that the elevator does, in fact, constitute a hidden danger due to the fact that neither Dennis nor Rick Andresen considered the exposed sprocket to be dangerous. Williamson argues that a 13-year-old child could not be expected to be aware of a danger that two adults did not prevent him from approaching.
As stated above, the law in this area is clear. Absent retention of control or an agreement to repair, a landlord is generally not liable for injuries to the tenant or the tenant's invitee occurring on the premises. Wright, 146 N.W.2d at 620. However, an exception to this rule exists "in regard to hidden or latent defects which existed at the time the lease was consummated and where the defect was known to the lessor (or through the exercise of reasonable care the lessor should have known of it) and he actively concealed it from the tenant or failed to call it to his attention." Id.
Dennis Andresen's argument that he cannot be liable on a failure to warn theory due to his Rick Andresen's familiarity with the piece of machinery involved in the accident is misplaced. While it is true that Dennis Andresen was under no duty to warn Rick Andresen of a danger when Rick Andresen had actual knowledge of the same, it is also true that Dennis had a duty to warn his tenant's invitees of any hidden or latent defects which existed prior to the commencement of the lease. See Casey, 300 N.W. at 736 (the duties and liabilities of a landlord to persons present on the leased premises at the invitation of the tenant are the same as those owed to the tenant himself). Here, Dennis knew that Nicholas had entered a dangerous area, a danger arguably not quickly perceived by a 13-year-old boy.
There is no allegation that Dennis Andresen actively concealed the supposed hidden or latent defect. Furthermore, the plaintiff admits that Dennis did not consider the exposed sprocket to be dangerous, so no claim of actual knowledge can be made. The relevant question, therefore, is whether Dennis failed to disclose a hidden or latent defect of which he had constructive knowledge (should have known).
Dennis Andresen claims that he instructed Nicholas Williamson to stay out of the corn crib. Nicholas denies that. Assessing credibility is for the jury. Likewise, whether Dennis Andresen's "glare" constituted sufficient warning is also for the jury. Therefore, summary judgment on this ground is inappropriate.
Failure to Supervise
Andresen argues that a duty to supervise or protect arises only from a voluntary assumption of control or from the existence of a special relationship, neither of which existed at the time of the accident. Therefore, Andresen claims that he is entitled to summary judgment on this claim.
Williamson argues that there exists a genuine issue of material fact as to whether Dennis Andresen owed Nicholas a duty of care due to his voluntary assumption of control over Nicholas. Williamson claims that Dennis voluntarily assumed control over Nicholas by "glaring" at him when he entered the corn crib directly before the accident. Williamson claims that the purpose of Andresen's "glare" was to instruct Nicholas to get out of the corn crib. Williamson also points out that Dennis Andresen had instructed Nicholas in the past as to what Nicholas should or should not be doing. Finally, Williamson contends that Dennis Andresen voluntarily assumed control over Nicholas when he expressly instructed Nicholas not to enter the corn crib. Nicholas Williamson denies that Dennis Andresen ever instructed him to stay out of the corn crib, but argues that Dennis' claim regarding the express instruction is further evidence of his voluntary assumption of control.
There is no claim that a special relationship existed between Dennis Andresen and Nicholas Williamson. Moreover, even assuming as true that Dennis Andresen had instructed Nicholas in the past as to what things Nicholas should and should not be doing, and that he did "glare" at Nicholas as Nicholas entered the corn crib, and that Dennis expressly told Nicholas not to enter the corn crib, summary judgment is appropriate on this claim. A question of fact does not exist which would permit a jury to find or infer that Dennis assumed control over Nicholas.
Employer Liability
Dennis Andresen claims that he is entitled to summary judgment on Williamson's claims that he was negligent in allowing Nicholas to work with a dangerous device and for failing to provide a safe work place because no employment relationship existed between Dennis and Nicholas. Dennis Andresen claims that Nicholas was not an employee of his, and that Williamson has not alleged differently. Williamson admits that Dennis Andresen was not Nicholas' employer, and that Nicholas was not performing work for Dennis when the accident occurred. Therefore, this court finds that Dennis Andresen is entitled to summary judgment on all claims of negligence arising from an employment relationship. Likewise, Dennis Andresen cannot be held liable, as a matter of law, under Iowa Code § 87.21 for failing to procure workers' compensation insurance as he was not Nicholas Williamson's employer.
Upon the foregoing,
IT IS ORDERED
Defendant's September 4, 1998 motion for summary judgment (docket number 14) is granted on plaintiff's claim that Dennis Andresen voluntarily assumed control over Nicholas Williamson and thereby became responsible for the injury. It is further granted on the claim that Dennis Andresen failed to provide plaintiff with a safe place to work. It is denied with respect to plaintiff's premises liability claims.