The Court of Appeals just published Miller v. Cundiff, which again discussed the liability a landlord has for defects on leased premises. The Court of Appeals agreed with the trial court that a landlord is ordinarily not liable for personal injuries caused by an open and obvious condition on the leased premises.
When Miller moved into her apartment, there was a three-inch gap in the carpet. Miller admitted that she noticed the condition when she first walked through the apartment, but claimed that she asked Cundiff to repair it. Miller stated that she made several additional requests for repairs. Cundiff denied receiving any such requests. Miller later tripped and fell over the gap in the carpet. Thereafter, she sought damages for her injuries under the common law and (URLTA), KRS 383.500 et seq. The Court of Appeals again set forth a landlord's liability in Kentucky with respect to known or discoverable defects on the premises.
Miller argued that this common law did not apply for two reasons. First, she argued that Cundiff undertook a duty to make repairs by making promises. However, the Court reiterated the rule set down in Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188 (Ky.App. 2006), “that a landlord is not liable for injuries caused by breach of a covenant to make repairs to a leased premises. Rather, the remedy for breach of an agreement to repair is the cost of repair." Second, Miller argued that under the URLTA, a landlord has a duty to “[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition[.]” KRS 383.595(1)(b). Because a separate section grants an aggrieved party the right to recover damages, Miller contended that the URLTA, when read as a whole, abrogated the common-law rule.
The Court noted that the legislature’s intention to abrogate the common law must be clearly apparent, and is not to be presumed. KRS 383.510 states that “[u]nless displaced by provisions of [the URLTA], the principles of law and equity . . . supplement [the URLTA’s] provisions.” This language clearly indicates that the URLTA was intended to supplement, not replace the common law. Therefore, Kentucky’s version of the URLTA does not demonstrate a clear intention on the part of the legislature to depart from the common-law standard for landlord liability. Moreover, unlike other jurisdictions which have enacted the URLTA on a state-wide basis, Kentucky merely authorizes individual counties and cities to adopt the provisions of the URLTA. KRS 383.500. Such a limited and local adoption of the URLTA does not lend itself to a conclusion that the legislature intended a sweeping modification of the common law. To the contrary, such a piecemeal abrogation of the common law would likely violate the constitutional provisions against local or special legislation.
Notice the difference between this ruling and the one in my post Landlord Tenant Liability Part II. Here the premises were in the complete control of the tenant, which implicates the defense of open and obvious. In areas where the landlord maintains some control, the open and obvious nature of the condition is only one element of reasonableness in the landlord's failure to repair. The duty of course is higher and extends from the landlord's refusal or inability to cede all control to the tenant. Where the landlord relinquishes control but agrees to or does maintain the premises, the breach of that contractual duty to repair implicates a contractual remedy, i.e., the cost of repair, not a tort one, i.e., personal injury damages. The duties imposed by the URLTA do not extend beyond the common law for breach of contractual duty to repair.