Eickhoff v. Gelbach

611 S.W.3d 834

Michelle EICKHOFF, et al., Appellants,

v.Douglas GELBACH, et al., Respondents.

WD 83433

Missouri Court of Appeals, Western District.

OPINION FILED: September 15, 2020

Application for Transfer Denied October 27, 2020

Application for Transfer Denied December 22, 2020

Richard S. Fisk, Overland Park, KS, for appellants.

Paul D. Cowing and Andrew S. Mendelson, Lee's Summit, MO, for respondents.

Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Thomas N. Chapman, Judge

Gary D. Witt, Judge

Michelle Eickhoff and John Eickhoff¹ (collectively "the Eickhoffs") appeal from the judgment of the Circuit Court of Johnson County entering summary judgment in favor of Douglas Gelbach and Rhonda Gelbach² (collectively "the Gelbachs") against the Eickhoffs on claims of general negligence, negligence per se , premises liability, and loss of consortium. We reverse and remand.

Factual and Procedural Background³

The Gelbachs own a significant number of residential rental properties, both homes and apartments, including the house that is the subject of this litigation, located at 117 West Russell in Warrensburg, Missouri ("Property"). On February 18, 2016, Tyler Eickhoff, Charles Bollmeyer, Austin May, and Calvin Rucker (collectively "the Tenants") entered into a lease of the Property for a term of August 1, 2016, through July 31, 2017. Between 2014 and 2016, the Gelbachs made extensive repairs, modifications, and improvements to the Property, which were completed before the lease term began. The Tenants took possession of the Property on August 1, 2016. On October 30, 2016, Michelle was visiting her son, Tyler, at the Property and fell down a flight of stairs located inside the Property causing injury.

The lease provided in relevant part:

10. Acceptance and Return of Premises: The Tenant's entry into possession of the premises shall be considered conclusive evidence that the premises and the building of which it forms a part are in good and satisfactory order and repair at such time. It is agreed that there have been no promises to decorate, alter, repair, or improve the premises, or representations as to the condition and repair of this premises, except as are set forth herein, and that the Tenant agrees unless otherwise stated herein to occupy the premises in its "as-is and clean" condition. The Tenant agrees that the premises are in a tenantable condition....

11. Entry of Premises: Landlord reserves the right to enter upon the leased premises at all reasonable hours for the purpose of inspecting the same, or of making repairs, additions or alterations to the building in which the leased premises are located....

12. Locks: Tenant understands and agrees that he shall not, in any event or circumstance, install or cause to be installed on the premises additional locks of whatever kind, nor make or cause to be made, any changes in or to the existing locks.

13. Rules and Regulations:

(b) Tenant ... shall not decorate, make repairs, structural alterations in or additions to the buildings or equipment on the leased premised [sic] without the prior, express and written consent of Landlord. Decorations include, but are not limited to painting, wallpapering, and hanging of murals or posters.

(c) Will give to the Landlord prompt written notice of ... any defects ... which come to Tenants notice in connection with said premises, so that such defects may be corrected and the Landlord shall have a reasonable time thereafter to make repairs.

When the Tenants took possession of the property from the Gelbachs, the staircase where Michelle fell did not have a handrail installed. Douglas and the Tenants had a conversation regarding the lack of a handrail and the installation of one, and it was agreed between them that a handrail would not be installed.

Prior to the lease between the Gelbachs and the Tenants, the City of Warrensburg adopted the 2012 International Residential Code ("Code"), which, regarding stairways, provided that "[h]andrails shall be provided on at least one side of each continuous run of treads or flight with four or more risers." INTERNATIONAL RESIDENTIAL CODE , R311.7.8 (2012); See Warrensburg Code of Ordinances Sec. 6-19 (2016) (adopting the Code). Michelle's fall occurred on a flight of stairs with more than four risers, on which no handrail had been installed on either side. Subsequent to the fall, on or about March 2018, Douglas installed a handrail on those stairs.

On March 5, 2018, the Eickhoffs filed a petition asserting four claims against the Gelbachs: (Count I) general negligence, (Count II) negligence per se , (Count III) premises liability, and (Count IV) loss of consortium. On March 1, 2019, the Gelbachs moved for summary judgment on all counts. After substantial briefing, the circuit court heard argument on September 3, 2019, and subsequently entered summary judgment in favor of the Gelbachs on December 12, 2019, dismissing the case with prejudice. This appeal followed.

Standard of Review

The Missouri Supreme Court has outlined our applicable standard of review for summary judgment:

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo.ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) ; Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party's motion are accepted "as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is one from which the right to judgment flows. Id.

A defending party ... may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant's claim; (2) "that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one" of the elements of the non-movant's claim; or (3) "that there is no genuine dispute as to the existence of the facts necessary to support movant's properly pleaded affirmative defense." Id. at 381. Each of these three methods individually "establishes the right to judgment as a matter of law." Id.

Goerlitz v. City of Maryville , 333 S.W.3d 450, 452-53 (Mo. banc 2011).

Discussion

The Eickhoffs raise two points on appeal. First, the Eickhoffs assert the circuit court erred in granting summary judgment to the Gelbachs because there was a material issue of fact regarding whether the Gelbachs retained partial or shared control of the house. Second, the Eickhoffs argue the circuit court erred in granting summary judgment because there was a genuine issue of material fact as to whether the Gelbachs had knowledge of the dangerous condition created by the handrail in that the Gelbachs "are held to have knowledge of a dangerous condition that is a violation of an ordinance, and that the [T]enants had no knowledge of the ordinance or the dangerous condition." We address each in turn.

Point One

In their first point on appeal, the Eickhoffs assert there is a genuine issue of material fact as to whether the Gelbachs retained partial or shared control of the property. "The general rule, pursuant to Missouri case law, is that a landlord does not owe a duty to his tenant, and is not liable for personal injuries, received by a tenant or by a tenant's invitee, caused by the dangerous conditions of the premises." Dean v. Gruber , 978 S.W.2d 501, 503 (Mo. App. W.D. 1998). There are three recognized exceptions to the general rule, which include: "(1) when the landlord had knowledge of a dangerous condition, which condition is not discoverable by the tenant, and the landlord fails to make disclosure; (2) when the injury occurs in a common area; and (3) when a landlord is responsible for making repairs, but negligently fails to do so." Id. (citing Newcomb v. St. Louis Office for Mental Retardation & Developmental Disabilities Res. , 871 S.W.2d 71, 74 (Mo. App. E.D. 1994) ).⁴ The Eickhoffs allege that the third exception is applicable to the first point in that the Gelbachs as landlord were responsible for making repairs and the Gelbachs had retained some level of control over the Property.

"[A] landlord is under no obligation to a tenant to repair unless there is a contract which creates a duty to repair[,]" but when the landlord retains partial control of the property to make repairs, then the landlord is obligated to make such repairs and keep the property in a reasonably safe condition for its intended use. Dean , 978 S.W.2d at 503. The dispositive issue in cases where tenants allege the landlord assumed a duty to make repairs is "whether the landlord did retain control of the particular portion of the premises under consideration. This is because the foundation of the landlord's duty is based upon his retention of control." Id. at 504. However, "[t]here must be something more—some additional fact or facts from which a jury could infer that under the agreement the tenant gave up and surrendered his right to exclusive possession and control and yielded to the landlord some degree or measure of control and dominion over the premises; some substantial evidence of a sharing of control as between landlord and tenant." Lemm v. Gould , 425 S.W.2d 190, 195 (Mo. 1968).⁵ A landlord is liable for damages if "he retained a general supervision...