A landlord can be liable for a tenant's injuries caused by a leaky roof the Kentucky Court of Appeals ruled recently in Warren v. Winkle, No 2012-366 (May 24, 2013). The decision reversed a summary judgment granted the landlord by Judge Susan Schultz Gibson of the Jefferson Circuit Court.
Roslyn Warren rented a one-bedroom apartment from the Warrens in a seven-unit apartment complex. All seven units were in a one-story building and shared a common roof. Each unit had ceiling tiles suspended by wires hung from the rafters, which meant, as the court pointed out, "the area between the ceiling and roof ... consisted only of rafters and was not a space usable by tenants." The parties disputed whether Warren informed the Winkles that the roof appeared to be leaking because the ceiling tiles appeared to sag when it rained. In any event, part of the bedroom ceiling in Warren's unit collapsed while she was in bed and caused her serious injuries. She filed suit claiming that the Winkles had negligently failed to maintain the roof in reasonably safe condition causing moisture to accumulate between the roof and ceiling resulting in the collapse of the ceiling and her injuries. The circuit court granted summary judgment to the Winkles "holding that, as a matter of law, the Winkles had no duty to maintain the roof or the area between it and the ceiling."
The general rule in Kentucky is that a landlord is "not liable for to the tenant of his property because of defects in the leased premises," that the "tenant takes the premises for better or worse." But there is an exception where the property had multiple tenants and with regard to its common areas. As to such properties and their common areas, "the landlord must exercise ordinary care to keep common areas in a reasonably safe condition." "A landlord is presumed to have retained control over premises used in common by different tenants."
Warren claimed that her injuries were caused by the landlord's failure to maintain the roof. The Court of Appeals reviewed cases from other states and concluded that the "prevailing view is that a 'roof is necessary for all the tenants; and, no provision being made for a transfer of its possession to any tenant, the control over it remained in the owner.'" Accordingly, the Court held that "a landlord can be responsible for dangerous conditions in areas not demised to a tenant and that remain in the landlord's exclusive control. In this case, Warren did not have the right to use or enjoy the roof and had no responsibility to maintain it in a reasonably safe condition. Furthermore, the area between the roof and ceiling was not useable and was, in fact, merely a part of the roof structure."
The Court also rejected the landlord's argument that it could not be liable for the tenant's injuries under the "open and obvious doctrine", because the tenant had testified in deposition that she had noticed the ceiling sagging before it fell on her. The open and obvious doctrine does not preclude the landlord's liability, whose actions are subject to a reasonableness test the relevant factors including the landlord's actual or constructive notice of the defect, the landlord's opportunity to remedy it and the reasonableness of the tenant's actions as well. Davis v Coleman Management Co, 765 SW2d 37 (Ky App 1989).
Finally, the Court rejected the landlord's argument that it could be liable to the tenant only for the cost of repairs, noting that the tenant's action was for negligence not breach of contract or warranty.
The Court of Appeals' opinion was authored by Judge Kelly Thompson and joined by Judge Irv Maze and Judge Janet Stumbo.
