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Newton v. Magill's Trailer Park (4/29/94), 872 P 2d 1213
Notice: This opinion is subject to formal 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,
THE SUPREME COURT OF THE STATE OF ALASKA
DARLINE NEWTON )
and STAN NEWTON, ) Supreme Court No. S-5219
Appellants, ) Superior Court No.
) 1PE-90-50 CI
) O P I N I O N
ENID MAGILL and ESTATE OF )
FRED MAGILL, DBA ) [No. 4075 - April 29, 1994]
MAGILL'S TRAILER PARK, )
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Larry C. Zervos, Judge.
Appearances: Fred W. Triem, Sharon A.
Kornman, and Michael P. Ledden, Petersburg,
for Appellants. T.G. Batchelor, Batchelor,
Brinkman & Pearson, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating.]
This is a slip and fall case brought by a tenant
against her landlord. The superior court granted summary
judgment in favor of the landlord based on the traditional common
law rule that a landlord is generally not liable for dangerous
conditions in leased premises. We hold that this rule no longer
applies in view of the legislature's enactment of the Uniform
Residential Landlord and Tenant Act, and therefore reverse.
I. FACTS AND PROCEEDINGS
In the summer of 1988, Darline Newton moved from Idaho
to Petersburg to join her husband, Stan, who had moved to Alaska
a few months earlier. In Petersburg, Stan Newton had leased a
house in a trailer park owned by Enid and Fred Magill.
The front door of the house opened onto a wooden
walkway about six feet long and five feet wide. This walkway
served the Newtons' house. It was partly covered by an
overhanging roof, had no hand railing, and no "anti-slip"
material on its surface.
On November 20, 1988, Darline Newton slipped and fell
on the walkway, breaking her ankle. The Newtons filed suit
against the Magills claiming that the walkway had been slippery
and hazardous for a considerable period of time prior to the
accident, that the Magills had a duty to remedy its condition,
and that they negligently failed to do so.
The Magills moved for summary judgment on the ground
that the tenants were responsible for "any slippery conditions
resulting from rain"under both the common law and the Uniform
Residential Landlord and Tenant Act (URLTA) as adopted in Alaska,
AS 34.03.010-380. The Magills argued, further, that they could
not be liable under a latent defect theory because the walkway
was not defective; further, even assuming that it had a tendency
to become dangerously slippery when wet, this hazard should have
been obvious to the tenants. The superior court granted the
motion. The court ruled:
Plaintiff's . . . claim is barred
by Alaska's interpretation of the Uniform
Residential Landlord [and] Tenant Act; AS
34.03.010-380. In Coburn v. Burton, 790 P.2d
1355, 1357 (Alaska 1990), the Supreme Court
held that the landlord had the duty to keep
common areas in a safe and clean condition,
while at the same time, the tenant had a
correlative duty to keep areas occupied and
used solely by the tenant in a clean and safe
condition. Here, the injury did not occur in
a common area. The plaintiff states that she
slipped and fell on the entryway, which was
for the sole use of the plaintiff to enter
the single-family residence. Pursuant to
Coburn, the plaintiff had the duty to keep
the entryway in a clean and safe condition.
The defendant could not have breached the
Additionally, there is no evidence
that the entryway was latently defective.
The plaintiff even admits that no complaints
were made to the defendant about the
The Newtons moved to reconsider. The court denied the
motion in a written order which stated, after noting that the
accident occurred in an area which the Newtons had a duty to main
Nevertheless, the Newtons argue
that other circumstances involved here should
require the burden to remain with the
Magills. They argue that the entryway had
latent or design defects. The fact that the
entryway did not have a handrail, a gutter on
the roof, or anti-slip material on the boards
are not latent defects. These conditions
existed in plain view and the Newtons knew
these conditions existed. This is not a case
involving a guest unfamiliar with the house
or entryway. Mrs. Newton lived in the house
for nearly five months before the fall. The
Newtons used the entryway daily and it rained
on numerous days before [the accident].
Even if the lack of a gutter and a
handrail could be considered design defects,
given the width of the entryway and its out
side location, it is difficult to see, and
the Newtons have offered no evidence to
suggest, how these fixtures would have played
any role in preventing the accident.
Furthermore, the parties have not argued that
the handrail or the rain gutters are required
by any building code, ordinance or statute.
The anti-slip material is not a
design problem, but is a maintenance problem.
As noted above, the duty to maintain the
entryway rests with the Newtons.
From this order the Newtons have appealed.
II. STANDARD OF REVIEW
The Magills argue that the Newtons can only appeal the
superior court's denial of their motion for reconsideration and
that denial is reviewed under the abuse of discretion standard.
Conversely, the Newtons claim that they are entitled to challenge
the merits of the underlying summary judgment. The Newtons are
Alaska Appellate Rule 204(a)(3) terminates the running
of the appellate clock upon the timely filing of motions for
reconsideration. After the superior court's disposition of a
motion for reconsideration, Appellate Rule 204(a)(3)[e] sets the
appellate clock back to zero and starts it again. Consequently,
a litigant may appeal "from a judgment or order sought to be
reconsidered" within thirty days from the denial of the motion
for reconsideration under Alaska Civil Rule 77(k)(4). Thus, the
Newtons' appeal from the superior court's denial of the motion
for reconsideration presents the merits of the superior court's
grant of summary judgment.
The Magills also argue that the lack of opposition to
their motion for summary judgment reduces the standard of review
before this court. The text of Civil Rule 56 contradicts this
When a motion for summary judgment is
made and supported as provided in this rule,
an adverse party may not rest upon the mere
allegations or denials of his pleading, but
his response, by affidavits or as otherwise
provided in this rule, must set forth
specific facts showing that there is a
genuine issue for trial. If he does not so
respond, summary judgment, if appropriate,
shall be entered against him.
Alaska R. Civ. P. 56(e) (emphasis added). Thus, even if a
litigant does not oppose summary judgment, the superior court may
grant the motion only if otherwise "appropriate"under Rule 56.
Weaver Bros., Inc. v. Chappel, 684 P.2d 123, 126 (Alaska 1984).
For this reason, this court should review the superior court's
grant of summary judgment under the usual standard of review.
This court will uphold a summary judgment only if the
record presents no genuine issues of material fact and "the
moving party was entitled to judgment on the law applicable to
the established facts." Wassink v. Hawkins, 763 P.2d 971, 973
(Alaska 1988). When the court makes this determination, "[a]ll
reasonable inferences of fact from proffered materials must be
drawn against the moving party . . . and in favor of the non-
moving party." Sea Lion Corp. v. Air Logistics of Alaska, Inc.,
787 P.2d 109, 116 (Alaska 1990). If in reviewing the summary
judgment this court must answer questions of law, this court will
"adopt the rule of law which is most persuasive in light of
precedent, reason and policy." Ford v. Municipality of
Anchorage, 813 P.2d 654, 655 (Alaska 1991).
The Newtons describe Petersburg as a city where
"constant drizzle"is "prevalent"except in the summer "when the
rainfall is broken by periods of sun." They contend that the wet
climate fosters the growth of a plant organism on exposed wooden
boards, causing them to become dangerously slippery when wet. To
guard against this tendency, the Newtons contend that permanent
installation of some sort of anti-slip device is necessary. They
argue that the general community standard in Petersburg is to
install such devices.
Under the traditional common law rule governing the
liability of a landlord, failure by the Magills to meet the
community standard, assuming it exists, would be irrelevant. The
traditional rule is that real property lessors are not liable to
their tenants for injuries caused by dangerous conditions on the
property. City of Fairbanks v. Schaible, 375 P.2d 201, 205
(Alaska 1962); Restatement (Second) of Torts 355, 356 (1965).
There are exceptions to this rule of non-liability. If the
dangerous condition is not reasonably apparent or disclosed,1 if
it exists on a part of the premises which remains subject to the
landlord's control,2 if the landlord has undertaken to repair the
condition,3 or if the property is leased for a purpose which
involves admission of the public,4 the landlord is subject to
liability for negligence. None of these exceptions applies to
The general rule of landlord immunity follows from the
conception of a lease as a conveyance of an estate in land under
which the lessee becomes, in effect, the owner for the term of
the lease. As such, the lease was subject to the principle of
caveat emptor. The tenant had to "inspect the land for himself
and take it as he finds it, for better or for worse." William L.
Prosser, Law of Torts 63 at 400 (4th ed. 1971).
The courts of a number of jurisdictions have begun to
discard this common law rule, however, 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.
The decision which began the trend imposing a general
duty of care upon landlords was Sargent v. Ross, 308 A.2d 528
(N.H. 1973). Sargent involved the death of a tenant's four-year-
old daughter in a fall from an outdoor stairway attached to an
apartment house. The tenant brought a wrongful-death action
against the landlord, alleging negligence in the construction and
maintenance of the stairway. Evidence indicated that the stairs
were dangerously steep and the railing was insufficient to
prevent the child from falling over the side. The jury returned
a verdict for plaintiff. Id. at 529-30.
In affirming, the New Hampshire Supreme Court indicated
that it might have analyzed the case as falling within an
exception to the common law rule of landlord immunity, but
declined to do so. Although the stairway was not a common
passageway, the court might have strained to find that the
landlord still retained some control over it; the court might
also have found a hidden defect, at least as to the infant
decedent; or the court might have found that the landlord had
been negligent in making repairs to the stairway. Instead, the
court stated: "We think that now is the time for the landlord's
limited tort immunity to be relegated to the history books where
it more properly belongs." Id. at 533. The court held that
"landlords as other persons must exercise reasonable care not to
subject others to an unreasonable risk of harm,"id. at 534, and,
more fully, "[a] landlord must act as a reasonable person under
all of the circumstances including the likelihood of injury to
others, the probable seriousness of such injuries, and the burden
of reducing or avoiding the risk." Id. The court noted that
this was a natural extension of a prior holding which had
recognized an implied warranty of habitability in the landlord-
tenant relationship. Id. at 533; Kline v. Burns, 276 A.2d 248
Among the cases which have followed Sargent are Mansur
v. Eubanks, 401 So.2d 1328 (Fla. 1981); Thompson v. Crownover,
381 S.E.2d 283 (Ga. 1989) (duty of care based on statutory
warranty of habitability); Stephens v. Stearns, 678 P.2d 41
(Idaho 1984) (statutory implied warranty of habitability cited);
Old Town Dev. Co. v. Langford, 349 N.E.2d 744, 762 (Ind. Ct. App.
1976); Young v. Garwacki, 402 N.E.2d 1045 (Mass. 1980) (reliance
in part on warranty of habitability); Turpel v. Sayles, 692 P.2d
1290 (Nev. 1985); Humbert v. Sellars, 708 P.2d 344 (Or. 1985)
(relying on implied warranty of habitability in Oregon's URLTA);
Mariorenzi v. DiPonte, 333 A.2d 127, 132 (R.I. 1975); Favreau v.
Miller, 591 A.2d 68 (Vt. 1991); and Pagelsdorf v. Safeco Ins. Co.
of America, 284 N.W.2d 55 (Wis. 1979) (relying on implied
warranty of habitability).
With the 1974 adoption in Alaska of the URLTA, the
theoretical foundation of the traditional rule of caveat emptor
has been undermined in this state as well.5 Landlords subject to
the act have a continuing duty to "make all repairs and do
whatever is necessary to put and keep the premises in a fit and
habitable condition." AS 34.03.100(a)(1). This means that
landlords retain responsibility for dangerous conditions on
The duty of a tenant is to "keep that part of the
premises occupied and used by the tenant as clean and safe as the
condition of the premises permit[s]." AS 34.03.120(1). This
obligation exists as part of the same statute which defines the
landlord's obligation to "make all repairs and do whatever is
necessary to put and keep the premises in a fit and habitable
condition." AS 34.03.100(a)(1). It follows that the legislature
intended these obligations to be reconcilable. Reconciliation
can be accomplished by interpreting the tenant's duty to pertain
to activities such as cleaning, ice and snow removal, and other
light maintenance activities pertaining to the safety of the
premises which do not involve an alteration of the premises,
whereas the landlord's duty relates to the physical state of the
premises. This distinction is suggested by the phrase "as the
condition of the premises permit[s]"in section 120(1). In
context this must refer to the inherent physical qualities of the
Our case law has also reflected the trend toward a more
general duty of care for landlords. In Webb v. City & Borough of
Sitka, 561 P.2d 731 (Alaska 1977), we rejected the prevailing
common law view that a landlord's duty was controlled by the
rigid classification of the person seeking compensation as a
trespasser, licensee or invitee. Instead, we adopted a rule
based on general tort law that an owner "must act as a reasonable
person in maintaining his property in a reasonably safe condition
in view of all the circumstances, including the likelihood of
injury to others, the seriousness of the injury, and the burden
on the respective parties of avoiding the risk." Id. at 733.
We now further expand the landlord's duty of care in
aligning Alaska with the jurisdictions following Sargent, and
thus reject the traditional rule of landlord immunity reflected
in Schaible. We do this because it would be inconsistent with a
landlord's continuing duty to repair premises imposed under the
URLTA to exempt from tort liability a landlord who fails in this
duty. 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. The traditional rule of landlord tort immunity cannot
be squared with these policies.
What we said in Webb concerning the nature of change in
the common law is equally relevant to today's decision:
The common law is not a rigid and
arbitrary code, crystallized and immutable.
Rather, it is flexible and adapts itself to
changing conditions. After all, the common
law "is but the accumulated expressions of
the various judicial tribunals in their
efforts to ascertain what is right and just
between individuals with respect to private
disputes." What may be considered a just
disposition of a dispute at one stage of
history may not be the same at another stage,
considering changing social, economic and
other conditions of society.
Webb, (quoting State v. Morris, 555 P.2d 1216, 1223 (Alaska 1976)
(Boochever, C.J., dissenting)).
Our rejection of the general rule of landlord immunity
does not make landlords liable as insurers.6 Their duty is to
use reasonable care to discover and remedy conditions which
present an unreasonable risk of harm under the circumstances.
Nor does our ruling mean that questions as to whether a dangerous
condition existed in an area occupied solely by the tenant or in
a common area, or whether the condition was apparent or hidden,
are irrelevant. These are circumstances which must be accounted
for in customary negligence analysis. They may pertain to the
reasonableness of the landlord's or the tenant's conduct and to
the foreseeability and magnitude of the risk. In particular, a
landlord ordinarily gives up the right to enter premises under
the exclusive control of the tenant without the tenant's
permission. The landlord's ability to inspect or repair tenant
areas is therefore limited. In such cases "a landlord should not
be liable in negligence unless he knew or reasonably should have
known of the defect and had a reasonable opportunity to repair
it." Young v. Garwacki, 402 N.E.2d 1045, 1050 (Mass. 1980).
The trial court observed in this case that slipperiness
can be regarded as a hazard which comes within the tenant's
maintenance duties rather than the duties of the landlord to keep
the premises safe. A tenant can throw sand onto wet and slippery
boards. On the other hand, this method has limitations,
especially in an area of near constant rainfall.7 A jury could
find that a landlord in such an area should take any one of a
number of steps relating to the physical condition of the
premises which would prevent a board walkway from becoming
dangerously slippery when wet.
In our view genuine issues of material fact exist as to
whether the appellees breached their duty to Darline Newton to
exercise reasonable care in light of all the circumstances with
respect to the condition of the walkway. Determination of
whether that duty was breached should be left for the trier of
fact. We therefore REVERSE the trial court's grant of summary
judgment in favor of the Magills and REMAND this case for further
1 Schaible, 375 P.2d at 205; Restatement (Second) of
2 Schaible, 375 P.2d at 205; Restatement, supra 360,
3 Restatement, supra 362.
4 Id. at 359.
5 The commentary to the URLTA explicitly recognizes that
the common law antecedents of existing landlord-tenant law are
"inappropriate to modern urban conditions and inexpressive of the
vital interests of the parties and the public which the law must
protect." URLTA 1.102 cmt. 7B, U.L.A. 434 (1985).
6 We do not accept the Newtons' argument that a rule of
strict liability should govern this case.
7 For example, the constant application of sand to a
board walkway may be seen as defeating one of the purposes of a
walkway, which is to minimize tracking substances into the house.