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Sauve v. Winfree (8/20/99) sp-5160


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

NANETTE SAUVE,                )
                              )    Supreme Court No. S-8626
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-93-7237 CI
                              )
DENNIS M. WINFREE and         )    O P I N I O N
BILL H. NIX,                  )
                              )    [No. 5160 - August 20, 1999]
             Appellees.       )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Karen L. Hunt, Judge.


          Appearances: James T. Brennan and Amy
Vaudreuil, Hedland, Brennan, Heideman & Cooke, Anchorage, for
Appellant.  Daniel T. Quinn, Richmond & Quinn, Anchorage, for
Appellees.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  


          FABE, Justice.


I.   INTRODUCTION
          After falling down a stairway at her place of employment,
Nanette Sauve sued the premises owners, Dennis Winfree and Bill
Nix, who were also the officers and sole shareholders of Sauve's
corporate employer.  The superior court granted summary judgment to
Winfree and Nix after concluding that their landlord duties were
inextricably intertwined with their corporate duties and, thus,
that they were immune as co-employees under the Workers'
Compensation Act.  Because Sauve raised a genuine issue of material
fact as to whether Winfree and Nix's negligence as landlords caused
her injury, we reverse the superior court's grant of summary
judgment and remand for trial. 
II.  FACTS AND PROCEEDINGS
          In 1989 Nanette Sauve began working as a retail clerk for
Alaska Seapac, Inc., d/b/a 10th & M Seafoods (10th & M), in a two-
story office building in Anchorage.  On August 17, 1992, Sauve fell
down a flight of stairs in the office building while working.  She
had undergone knee surgery twelve days before the accident as a
result of a non-work-related incident earlier that year, and the
fall aggravated her knee injury.  10th & M paid Sauve both medical
benefits and workers' compensation benefits for a period of missed
work due to disability after she fell.
          Dennis Winfree and Bill Nix are the sole shareholders,
board members, and officers of 10th & M.  Like Sauve, both Winfree
and Nix are salaried, full-time employees of 10th & M. Sauve
reported to Winfree and Nix, each of whom described himself as her
supervisor.
          Winfree and Nix also own the building housing 10th & M
and lease it in its entirety to 10th & M through a partnership they
created called ANW Investments.  According to ANW's accountant,
Russell Minkemann, ANW intended the lease to be a "triple net"
lease -- that is, a lease requiring the lessee, 10th & M, to pay
all insurance, taxes, and costs of maintenance and repair for the
leased premises.  According to Minkemann, ANW's sole income came
from the rent paid by 10th & M for the building.  ANW's partnership
tax returns through 1989 list the building at 10th & M as the
partnership's address.
          Minkemann also stated in his affidavit that, according to
10th & M's corporate tax returns, 10th & M has paid for all
maintenance, repair, and improvements to the building during the
course of the lease.  Such repairs include work on the freezers,
replacement of portions of ceilings and walls, and installment of
non-skid material on the floors.  Minkemann stated that all
significant leasehold improvements to the building have been
capitalized as assets of 10th & M and have been reflected in the
depreciation schedules filed with the corporation's tax returns.
          Rick Dawson, an Anchorage building contractor, stated in
an affidavit that the stairway in question is a winding stairway
prohibited in retail establishments under the Uniform Building
Code. [Fn. 1]  Dawson stated that the staircase also exceeds the
maximum rise allowed under the Code and that the width of portions
of the tapered and fan-shaped treads on the stairs is too narrow.
          In August 1993 Sauve sued Winfree and Nix in their
capacity as owners of the building, claiming that, as landlords,
they were liable for her injuries on the stairs.  Superior Court
Judge Milton M. Souter granted summary judgment to Winfree and Nix
on the ground that, because they were also Sauve's co-employees at
10th & M, they were immune from liability under the exclusive
remedy provision of the Alaska Workers' Compensation Act. [Fn. 2]
          In Sauve v. Winfree (Sauve I), [Fn. 3] we reversed and
remanded the case, concluding that Winfree and Nix's liability
turned on whether Sauve's injuries were caused by the structure of
the staircase or by negligent performance by Winfree and Nix of
their "corporate responsibility for the condition of the premises."
[Fn. 4]  If the injury was rooted in corporate, rather than
landlord, duties, then the exclusive remedy provision would apply
and Sauve could not  sue Winfree and Nix for her injuries. [Fn. 5]
          Following remand, Winfree and Nix again moved for summary
judgment, alleging that Sauve's injuries arose from negligently
performed corporate duties rather than landlord duties. [Fn. 6] 
Alternatively, Winfree and Nix argued that, as landlords, they owed
no legal duty to protect 10th & M's employees from injuries caused
by the building's condition. 
          In December 1997 the superior court granted summary
judgment to Winfree and Nix.  Because the court concluded that
Winfree and Nix's landlord obligations were "inextricably
intertwined"with their corporate obligations, it declined to
resolve the issue of whether landlord liability would otherwise
attach.  Sauve appeals.
III. DISCUSSION
     A.   Standard of Review
          Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact and that any party is entitled to a
judgment as a matter of law."[Fn. 7]  We review a grant or denial
of summary judgment de novo. [Fn. 8]
          The interpretation of a statutory provision, such as the
exclusive remedy provision of the Workers' Compensation Act, is a
question of law. [Fn. 9]  We resolve questions of law by adopting
"the rule of law that is most persuasive in light of precedent,
reason, and policy."[Fn. 10]
     B.   Lessors of Commercial Property Generally Owe a Duty of
Care to Employees of a Business Tenant.
          Sauve argues that the traditional common law rule of
landlord immunity from tort liability [Fn. 11] no longer applies to
commercial leases and, thus, that Winfree and Nix are liable as
landlords for injuries caused by a defective or dangerous condition
on the 10th & M premises.  Winfree and Nix respond that this court
has only abrogated the common law rule with respect to residential
leases.  We agree with Sauve to the extent that commercial
landlords owe a general duty of care to employees of commercial
lessees.
          In Newton v. Magill, [Fn. 12] we abandoned the common law
rule with respect to residential leases:
               The courts of a number of jurisdictions
have begun to discard this common law rule . . . in favor of the
principle that landlords are liable for injuries caused by their
failure to exercise reasonable care to discover or remedy dangerous
conditions.  These courts have relied in part on statutory or
common law warranties of habitability and in part on a belief that
the rule of landlord immunity is inconsistent with modern needs and
conditions.[ [Fn. 13]]
We further noted in Newton that Alaska's adoption of the Uniform
Residential Landlord and Tenant Act (URLTA) [Fn. 14] in 1974
undermined the "theoretical foundation of the traditional rule of
caveat emptor."[Fn. 15]  Thus, we explicitly rejected the common
law rule in favor of a rule based on general tort law that a
landlord must act reasonably in view of all the circumstances. [Fn.
16]
          The harder question is whether such common law immunity
has been abrogated in Alaska with respect to commercial leases as
well.  Winfree and Nix argue that the holding in Newton applies
only to residential leases because the court justified its decision
in part on Alaska's adoption of URLTA, which does not apply to
commercial leases.  At first glance, many of the rationales cited
by the Newton court for abandoning the common law rule appear to
apply with greater force to a residential landlord-tenant
relationship:
          The legislature by adopting the URLTA has
accepted the policy reasons on which the warranty of habitability
is based.  These are the need for safe and adequate housing,
recognition of the inability of many tenants to make repairs, and
of their financial disincentives for doing so, since the value of
permanent repairs will not be fully realized by a short-term
occupant.[ [Fn. 17]]
          But many commentators have noted logical inconsistencies
in the residential/commercial lease distinction.  Most businesses,
like residential tenants, are not "equipped to conduct
sophisticated inspections of the mechanical and structural elements
of a large commercial or industrial building."[Fn. 18]  And many
small businesses have the same lack of bargaining power that gave
rise to protections for residential tenants. [Fn. 19]
          Still, courts in most other jurisdictions continue to
apply the common law rule of landlord immunity to commercial
leases. [Fn. 20]  "[A]lmost all the state legislatures that have
adopted statutes protecting residential tenants from uninhabitable
premises have refused to expand the protection to commercial
tenants."[Fn. 21]  Only a few states -- New Jersey, New York,
California, and Texas -- have moved toward recognizing an implied
warranty of fitness or suitability in commercial leases. [Fn. 22]
          Notwithstanding courts' and legislatures' general
hesitancy to make commercial landlords liable to their tenants,
most courts allow the employees of commercial tenants to sue the
landlord of the business premises on which the injury occurred.
[Fn. 23]  In Spence v. Citizens & Southern National Bank, [Fn. 24]
the Georgia Court of Appeals allowed an employee to sue his
employer's landlord based on the landlord's statutory duty to lease
a safe premises. [Fn. 25]  And in Mora v. Baker Commodities, Inc.,
[Fn. 26] the California Court of Appeal allowed a suit by a worker
against the premises owner despite a provision in the lease
requiring the tenant employer to make repairs:
          [A] commercial landowner[] cannot totally
abrogate its landowner responsibilities merely by signing a lease. 
As the owner of property, a lessor out of possession must exercise
due care and must act reasonably toward the tenant as well as to
unknown third persons.[ [Fn. 27]]

The West Virginia Supreme Court held in Pack v. Van Meter [Fn. 28]
that an employee could sue both her employer and her employer's
landlord for an injury caused by falling down a stairway that
lacked a handrail. [Fn. 29]  The court concluded that both the
employer and the landlord owed a duty of care to the employee:
          [T]he failure to maintain the stairway with
handrails and the steps with a safe tread is a responsibility
reasonably shared by the employer and the owner of the place of
employment. . . . Courts in other jurisdictions have held that a
tenant's employee, who is injured at his place of employment as a
result of the landlord's violation of a safety statute or other
applicable law, can maintain an action against the landlord to
recover damages. . . . Furthermore, even in the landlord-tenant
law, we have recognized that a landlord is not insulated from all
liability with regard to injuries suffered by a third party on the
leased premises.[ [Fn. 30]]

          Courts have allowed suits by employees against commercial
landlords even when the landlord is also the employer.  In Tanguay
v. Marston, [Fn. 31] the New Hampshire Supreme Court concluded that
an employee could bring a slip-and-fall suit against his employer's
president and principal shareholder, who was also the lessor of the
employer's business premises where the injury occurred. [Fn. 32] 
And in Perkins v. Scott, [Fn. 33] a Florida opinion that we quoted
with approval in Sauve I, [Fn. 34] the court held that an employee
injured on the job could sue the premises owner, who was also the
owner and manager of the corporate employer. [Fn. 35]
          Although we do believe that many of the policy reasons
for protecting tenants in the context of residential leases apply
with equal force to the commercial setting, this case does not
require us to resolve the broad question of whether commercial
landlords generally owe a duty of reasonable care to commercial
tenants.  Rather, we are faced with the narrower issue of whether
third parties, specifically employees of a commercial tenant, may
sue commercial landlords in tort.  Because we acknowledge the need
to protect injured third parties in both the residential and
commercial lease contexts, we agree with the general trend in the
case law allowing such suits and conclude that commercial landlords
in Alaska owe a duty of reasonable care under the circumstances to
employees of their commercial lessees. [Fn. 36]
     C.   A Genuine Issue of Material Fact Exists as to Whether
Sauve's Injuries Stemmed from Winfree and Nix's Negligence as
Landlords.

          Our stated reason in Sauve I for remanding this case was
to conduct "further inquiry into the cause of Sauve's injuries."
[Fn. 37]  While we cautioned that Winfree and Nix should not be
able to reap the benefits of their chosen business organization
structure without facing the parallel consequences, [Fn. 38] we
recognized that if an employer's corporate and landlord duties were
"inextricably intertwined,"then the exclusive remedy provision
would apply and Winfree and Nix would not be liable as landlords:
[Fn. 39]
          If . . . it was the structure of the staircase
that caused her injuries and landlord liability would normally
attach in such a case, then Winfree and Nix should be held liable
to the extent of landlords that were not otherwise involved with
Sauve's employment. . . . However, if the cause of her injury is
rooted in corporate duties negligently performed by Winfree and Nix
in terms of their supervision of Sauve, or their corporate
responsibility for the condition of the premises, then the
exclusive remedy provision would bar payment of further damages
resulting from duties performed "incident"to employment.[ [Fn. 40]]

To survive summary judgment, then, Sauve must raise a genuine issue
of material fact both with respect to whether the structure of the
staircase -- and not negligent supervision -- caused her injury,
and whether Winfree and Nix would be liable solely as landlords for
failure to repair such a structural defect.
          We believe Sauve has met her burden.  First, Sauve has
presented credible evidence that the faulty structure of the
staircase caused her injury.  For example, she submitted an
affidavit from a contractor explaining that the width of the treads
on the stairs on which Sauve tripped was so narrow as to violate
applicable building codes.  As a point of comparison, if Sauve had
fallen on the staircase because it was slippery from a work-related
by-product, we would most likely conclude that the injury was
"rooted in corporate duties negligently performed by Winfree and
Nix in terms of their supervision"of Sauve. [Fn. 41]
          Second, a genuine factual issue exists as to whether
Winfree and Nix are responsible for repair of structural defects on
the 10th & M premises solely in their capacity as landlords.  We
have already concluded that Winfree and Nix did have a duty to
Sauve as commercial landlords.  But Winfree and Nix maintain that
they also had a duty to Sauve in their capacity as corporate
officers of 10th & M, based on the terms of their oral lease with
10th & M and on 10th & M's history of voluntary repairs. 
Specifically, Winfree and Nix assert that their partnership, ANW
Investments, has been in an oral "triple net"lease with 10th & M
for over seventeen years, under which 10th & M was "exclusively
responsible for insurance, taxes, and all maintenance, repairs, and
improvements."[Fn. 42]  But such boilerplate terms do not
necessarily signify that a tenant voluntarily agrees to be
responsible for structural repairs, such as the faulty staircase at
issue here, for which a landlord normally assumes liability.
          Furthermore, as Sauve argues, Winfree and Nix have
interpreted the terms of the oral lease "in the manner which best
suits their business purposes at any given moment."  Although Sauve
cannot avoid summary judgment merely by "conclusorily attacking"
Winfree and Nix's credibility, [Fn. 43] other factors exist that,
taken in the aggregate, cast "sufficient doubt on [Winfree and
Nix's] credibility to create a genuine issue of material fact."
[Fn. 44]  These factors include the lack of a written lease, the
fact that Winfree and Nix are the parties on both sides of the
lease, the uncertain scope of the term "maintenance and repair"in
the affidavits, and the fact that Winfree and Nix revealed the
terms of the lease in a piecemeal fashion throughout discovery.
[Fn. 45]  Moreover, such questions of credibility should generally
be determined at trial rather than resolved at the summary judgment
stage. [Fn. 46]
          In the Tanguay case, the New Hampshire Supreme Court
reversed a grant of summary judgment against a plaintiff-employee
under a similar set of facts.  The employee in Tanguay brought a
slip-and-fall suit against his employer's landlord, who was also
the president and principal shareholder of the employer
corporation.  The court determined that a genuine issue of material
fact existed as to whether the defendant was acting in his
corporate capacity, notwithstanding a provision in the lease
relieving the landlord of the duty to repair. [Fn. 47]  The court
emphasized that the question of whether the employer is acting in
a corporate capacity with respect to the employee's injury "is a
question for the jury, unless the evidence would support only one
finding as a matter of law."[Fn. 48]
          As for 10th & M's history of maintenance and repair, we
agree with Winfree and Nix that such voluntary acts are relevant to
the question of their assumed duty of repair. [Fn. 49]  But the
repairs that 10th & M has undertaken have been traditional
commercial tenant improvements rather than major structural repairs
such as the faulty staircase at issue here.  The improvements made
by 10th & M -- freezer repair, ceiling replacement, installation of
skid-resistant surfaces, "structural"bracing, painting, new
signage, and new lighting -- serve to maintain a safe working
environment rather than to alter the structure of the building.  A
change in the style, nature, or dimension of the staircase made to
comply with municipal building codes is a structural change that
would typically not be the responsibility of a commercial tenant.
[Fn. 50]
IV.  CONCLUSION
          A commercial landlord owes a duty of reasonable care
under the circumstances to its lessee's employees.  Because Sauve
raised a genuine issue of material fact as to whether Winfree and
Nix were acting in their capacity as landlords by failing to repair
the structural defect in the staircase that caused her injury, we
VACATE the superior court's grant of summary judgment to Winfree
and Nix and REMAND for trial.


                            FOOTNOTES


Footnote 1:

     Anchorage has adopted every chapter of the Uniform Building
Code except 1 (Accessibility), 29 (Plumbing), and 30 (Elevators). 
See Anchorage Munic. Code sec.sec. 23.05.010, 23.15.010.


Footnote 2:

     See AS 23.30.055.


Footnote 3:

     907 P.2d 7 (Alaska 1995).


Footnote 4:

     Id. at 13.


Footnote 5:

     See id.


Footnote 6:

     Winfree and Nix do not concede that their actions were
negligent in this case.  For purposes of summary judgment, we treat
Sauve's allegations of negligence as true.  See Sonneman v. State,
969 P.2d 632, 635 (Alaska 1998) (viewing evidence in the light most
favorable to the non-moving party for purposes of summary
judgment).


Footnote 7:

     Alaska R. Civ. P. 56(c).


Footnote 8:

     See Sonneman, 969 P.2d at 635.


Footnote 9:

     See Borg-Warner v. Avco Corp., 850 P.2d 628, 631 n.8 (Alaska
1993).


Footnote 10:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 11:

     See City of Fairbanks v. Schaible, 375 P.2d 201, 205 (Alaska
1962); Restatement (Second) of Torts sec. 356 (1965). 


Footnote 12:

     872 P.2d 1213 (Alaska 1994).


Footnote 13:

     Id. at 1216.


Footnote 14:

     See AS 34.03.010-.380.


Footnote 15:

     Newton, 872 P.2d at 1217.


Footnote 16:

     See id.  We do not agree with Sauve's contention that we
effectively abrogated the common law rule in a series of cases
beginning with Webb v. City & Borough of Sitka, 561 P.2d 731
(Alaska 1977).  In Webb, we held that a landlord's liability would
no longer turn on the status of the plaintiff as trespasser,
licensee, or invitee.  See id. at 732.  But as the superior court
points out, the abandonment of the common law classifications of
injured parties does not aid in the determination of who has the
duty of care to such parties.  At least one court has noted the
fallacy in assuming that a partial retreat from common law
distinctions signals a willingness to impose on landlords a duty of
care to tenants.  See Bellemare v. Gateway Bldgs., Inc., 420 N.W.2d
733, 740-41 (N.D. 1988) (noting that abandonment of common law
distinctions between licensees and invitees had no bearing on a
landowner's duty to a tenant).


Footnote 17:

     Newton, 872 P.2d at 1217.


Footnote 18:

     Paula C. Murray, The Evolution of Implied Warranties in
Commercial Real Estate Leases, 28 U. Rich. L. Rev. 145, 172 (1994)
(citation omitted); see also id. at 172-73 ("Over ninety percent of
American corporations have assets of under one million dollars.  In
fact, more than fifty percent of American corporations have less
than $100,000 in assets.").  But see Fred William Bopp III, The
Unwarranted Implication of a Warranty of Fitness in Commercial
Leases -- An Alternative Approach, 41 Vand. L. Rev. 1057, 1081-82
(1988) (noting that businesses, due to profit motive, can afford to
pay certain repair costs that residential tenants could not justify
financially).


Footnote 19:

     See Murray, supra note 18, at 172 ("[T]he vast majority of
commercial tenants are not corporate giants that have the financial
clout to bargain on equal footing with the landlord or to
adequately inspect premises for suitability and habitability.");
Todd D. Ruggiero, Brown v. Green and Hadian v. Schwartz:
Determining Who Is Responsible for Major Structural Repairs in
Commercial Leases, 28 Pac. L.J. 417, 424 (1997).


Footnote 20:

     See Ruggiero, supra note 19, at 423; Murray, supra note 18, at
162-63.


Footnote 21:

     Murray, supra note 18, at 163.


Footnote 22:

     See id. at 146, 164, 166-69.


Footnote 23:

     See Arthur Larson, Third-Party Action[-]Over Against Workers'
Compensation Employer, 1982 Duke L.J. 483, 500-01.  Of those courts
that have barred an employee's suit against an employer's landlord,
most have done so not out of a recognition that the landlord
generally has immunity with respect to commercial leases but rather
because the injuries did not involve structural defects.  See
Chausse v. Coz, 540 N.E.2d 667, 667-68 (Mass. 1989) (holding that
the failure to provide a low-humidity environment to avoid an
explosion was not a structural defect that the landlord was under
a duty to repair); Regensdorfer v. Central Buffalo Project Corp.,
668 N.Y.S.2d 291, 292 (App. Div. 1998) (stating that a clause
obligating the lessor to make structural repairs would have been
applicable had loose stairway treads been a structural defect). 
But see O'Brien v. Island Corp., 596 A.2d 1295, 1298 (Vt. 1991)
("[A] tenant having control of the premises is, so far as third
persons are concerned, the owner and . . . such persons must seek
redress from the tenant.").


Footnote 24:

     393 S.E.2d 1 (Ga. App. 1990).


Footnote 25:

     See id. at 2, 3 n.2.


Footnote 26:

     258 Cal. Rptr. 669 (App. 1989).


Footnote 27:

     Id. at 675.


Footnote 28:

     354 S.E.2d 581 (W. Va. 1986).


Footnote 29:

     See id. at 586-87.


Footnote 30:

     Id. at 586 (citations omitted).  The court also recognized a
commercial landlord's duty of reasonable care to employees of an
independent contractor who are working on the premises.  See id. at
587.


Footnote 31:

     503 A.2d 834 (N.H. 1986).


Footnote 32:

     See id. at 837-38.  The Tanguay court relied on the seminal
case Sargent v. Ross, [Fn. 51] 308 A.2d 528 (N.H. 1973), in which
the New Hampshire Supreme Court emphasized the need to impose
"ordinary principles of tort liability"on landlords and did not
limit its discussion to residential leases. [Fn. 52]  See id. at
531.  In Newton v. Magill, we "further expand[ed] the landlord's
duty of care in aligning Alaska with the jurisdictions following
Sargent."  See Newton, 872 P.2d at 1217.


Footnote 33:

     554 So. 2d 1220 (Fla. Dist. App. 1990).


Footnote 34:

     See Sauve I, 907 P.2d 7, 10 n.1, 12-13 (Alaska 1995).


Footnote 35:

     See Perkins, 554 So. 2d at 1221-22.


Footnote 36:

     Because we conclude that commercial landlords owe a duty to
employees of their commercial tenants, we need not address Sauve's
argument that this case falls under the "retained control"and
"public use"exceptions to the common law rule.


Footnote 37:

     Sauve I, 907 P.2d at 13.  The parties do not dispute that
Sauve's injury was "caused"by the staircase fall.  Here, when
referring to the cause of Sauve's injuries, we refer more
specifically to the question of whose negligence, if anyone's,
caused the fall -- Winfree and Nix as landlords or Winfree and Nix
as 10th & M supervisors.


Footnote 38:

     See id. at 10.


Footnote 39:

     Id. at 13-14.


Footnote 40:

     Id.


Footnote 41:

     See id. at 13.


Footnote 42:

     Sauve argues that the statute of frauds renders the triple-net
lease unenforceable because it is an oral lease of more than one
year.  But neither party to the lease in this case seeks to contest
the enforceability of its terms.  A lease that would otherwise fall
under the statute of frauds is enforceable if all parties admit to
the making of an agreement.  See AS 09.25.020(4).


Footnote 43:

     Arctic Tug & Barge, Inc. v. Raleigh, Schwarz, & Powell, 956
P.2d 1199, 1201 (Alaska 1998).


Footnote 44:

     Turnbull v. LaRose, 702 P.2d 1331, 1335 (Alaska 1985), quoted
with approval in Arctic Tug, 956 P.2d at 1201.


Footnote 45:

     When asked in interrogatories to state "the rental terms,
including the rental price"under the lease, Winfree and Nix merely
listed the annual rent and stated that "[t]he terms have not
changed except to reflect adjustments and reserve requirements
attached to the mortgage."  Although Winfree and Nix could
reasonably have read the question as referring solely to the
payment terms of the lease, Sauve correctly points out the brevity
of their response and the lack of discussion about the "triple-net"
lease in the later affidavits.


Footnote 46:

     See Griffin v. Taylor, 937 P.2d 297, 304 (Alaska 1997).


Footnote 47:

     See Tanguay v. Marston, 503 A.2d 834, 836-37 (N.H. 1986).


Footnote 48:

     Id. at 836.


Footnote 49:

     See, e.g., Stemple v. Phillips Petroleum Co., 430 F.2d 178,
182 (10th Cir. 1970) (holding that employees could recover in tort
against a company that sublet premises to employer because the
company voluntarily undertook 11 major repairs during the period of
ownership).


Footnote 50:

     For example, such a structural improvement is not the type of
repair easily reflected in a business's depreciation schedules for
tax purposes.


Footnote 51:

     308 P.2d 528 (N.H. 1973).


Footnote 52:

     Id. at 531.