Posts Tagged Landlord Liability

New Case Further Solidifies That A Landlord Is Not Liable For Injuries Caused By A Tenant’s Dog

A recent Wisconsin Court of Appeals decision has been recommended for publication that will assist landlords in defending against any claims filed by a third party that was bitten by a tenant’s dog.

The case of Ladewig v. Tremmel, (2010AP1925) involved a claim for negligence against two landlords by a neighborhood boy that was bitten by the landlords’ tenant’s pit bull.

The Court of Appeals was reviewing the trial court decision to dismiss the plaintiffs’ claims against the landlords on a motion for summary judgment.  A motion for summary judgment is filed when a party believes that the court is able to make a decision as a matter of law (without the need for a trial) because no material facts are in dispute by the parties, so the court must merely apply the law to the undisputed facts.

The general liability rule in Wisconsin, is based on public policy grounds, and states that a landlord is not liable for injuries caused by a tenant’s dog, unless the landlord is an owner or a keeper of that dog.  This general rule was established in the seminal case of Smaxwell v. Bayard, 2004 WI 101, 274 Wis.2d 278, 682 N.W.2d 923.

The plaintiff in this case argued that the general liability rule should not apply to these landlords because these landlords voluntarily assumed a duty to his client, because their lease included a provision which prohibited a tenant from keeping “vicious” dogs on the leased property.

Plaintiffs argued that the landlords in this case assumed a duty which they otherwise did not have, by including a lease provision prohibiting a tenant from keeping any vicious dogs on the premises, and as such they were negligent when they did not enforce this provision against the tenants, thus resulting in the plaintiff’s injuries.

It should be noted that in the case of Malone v. Fons, 217 Wis. 2d 746, 580 N.W.2d 697 (Ct. App. 1998) the Wisconsin Court of Appeals had previously held that a landlord’s alleged knowledge that a tenant was keeping a dog with a history of bad behavior was not sufficient to create liability on the landlord even though the landlord had a “no pets” provision In his lease.

Essentially, the plaintiffs were arguing that this case was an exception to the general rule of non-liability by a landlord set forth in Smaxwell, and since Smaxwell does not apply, the landlords should be found liable for the plaintiff’s injuries.

The Wisconsin Court of Appeals disagreed with the plaintiffs’ argument and said that there was no need to even determine whether or not the landlords assumed a duty of care to the plaintiff which they otherwise did not have, because such a determination was irrelevant under Smaxwell.

It was determined that the holding in Smaxwell applied to the facts in this case as well, and since there was no evidence that the landlords were owners or keepers of the dog that injured the visiting child, that the landlords were not liable, regardless.

The Court explained that the Smaxwell case “explicitly forecloses landlord liability on a broad basis, regardless of a plaintiff’s theory of a landlord’s duty of care, unless the landlord has a role, separate from that of a landlord, which involves exercising control or custody over the dog so as to qualify as an owner or keeper of the dog.”

Here, the Court of Appeals held that there was nothing about the landlords’ alleged non-enforcement of the “no vicious dogs” lease provision that “logically transformed the landlords into ‘owners and keepers’ of the dog.

This is a sound decision and in keeping with prior Wisconsin law.  A landlord will not be held liable for the injuries of a tenant’s dog to a third party, unless the injured party can demonstrate that the landlord “acted in the additional role of owner or keeper of the dog and exercised dominion and control over the dog.”

The Court of Appeals also echoed the Smaxwell decision by adding that recovery against a landlord would not place liability where it belongs, because it is the tenant, not the landlord, who has direct control over the dog and that it is sound policy to ensure that liability is placed upon the person with whom it belongs – the owner of the dog – rather than promoting the practice of seeking out the defendant with the most affluence – which often happens to be the landlord.




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Wisconsin Supreme Court Rules Against Landlord in Maryland Arms Case and Chooses To Avoid Answering The Bigger Question

The Wisconsin Supreme Court filed its opinion in this very important case on July 7, 2010.  While the majority opinion ruled against the landlord it did not go so far as to say that a landlord and tenant could not allocate liability for damage (when neither party was negligent in causing the damage) in their rental agreement. 

If you would like to review the specific facts of the case and the arguments made by both sides please revisit my posts of May 29, 2009 and October 15, 2009.

The Court was split, so there is a majority opinion, a concurring opinion, and a dissenting opinion.  So if you are brave enough you can read all three opinions which encompass 37 pages and can be read here.  The Wisconsin Law Journal provides a very good summary of the decision if  you are not feeling ambitious enough to read all 37 pages.

As an attorney who primarily represents landlords, I must admit that I had a mix of emotions after I finished reading the opinion.  I was upset that the majority opinion held that the landlord should be responsible for damage to his rental property that was caused by the tenant leaving her hair dryer plugged in overnight.  I was also frustrated by the fact that the major issue in the case — whether or not a landlord and tenant can allocate liability through the language of the rental agreement — was not addressed by the majority opinion, thus providing little guidance to landlords in the future.  On the other hand I was also grateful that the majority decided to “pass the buck” and not address this issue becasue, quite frankly, if the majority had addressed that issue, I believe they would have said “no” a landlord cannot allocate liability on a tenant for damage that was not casued by the negligence of the tenant.

The majority opinion held that the landlord should be held responsible for the damage because the rental agreement (which was drafted by the landlord) was ambiguous when it came to who would be held liable for damage in a situation where neither the tenant not the landlord were negligent in causing the damage.  The majority rested its decision on a very well established principle of contract law that any ambiguity in a contract  should be construed against the drafter of the contract.  The majority said that since the contract terms did not unambiguously state that the tenant would be liable for the damage under the specific fact situation in this case, then the landlord should be liable for the damage.

The majority declined to address the very important issue that the AASEW and other landlord associations were concerned about in this case — whether a landlord can add a lease provision assigning liability to a tenant for damages (when the damages is not caused by the tenant’s negligence) or whether doing so would be a violation of Wis. Stat. sec. 704.07.  So essentially the “Supremes” chose to dodge the issue, which in effect means that nothing prevetns a landlord from allocating liability to a tenant for such damage in a rental agreement under similar facts.  What this also means is that should a landlord make such an allocation and hold a tenant responsible for similar damage, the tenant can argue that such contract language violates sec. 704.07, and the courts will have no guidance as to how to rule. 

It was a missed opportunity by the Supremes to add to Wisconsin Landlord-Tenant law.  However, based, on the tortured analysis (my view) of the majority opinion, if the court had addressed the allocation of liability issue it would have most likely resulted in a holding that would not allow a landlord and tenant to allocate liability — which would have been even worse.  So in the end maybe it was best that the issue was not addressed.

Justice Ziegler, who agreed with the majority opinion, wrote a concurring opinion to add that  her view of Wisconsin law is that a landlord and tenant are not prohibited from allocating liability by contract as long as it is done clearly (i.e. no ambiguity) and is otherwise enforceable by law.

The dissenting opinion, which begins on page 18 and is authored by Justice Prosser, stated that not only are a landlord and tenant allowed to allocate liability in a rental agreement but that that is exactly what the parties to this lawsuit did and that the majority opinion is ignoring the clear meanign of the language in the rental agreement.  The dissent did not find the lease to be ambiguous at all.  The dissent, quite correctly in my opinion, points out the absurd nature of the majority opinion by saying that “imposing responsibility on the landlord for damage caused by a tenant, when the landlord cannot control risks created by the tenant” (like keeping a hair dryer plugged in overnight) defies economic logic.

The dissent, being very pragmatic, actually takes the time to address what the practical effect the majority decision will have on landlords by stating, “When the landlord is made responsible for abnormal damages that is actually caused by tenants, the landlord must spread the resulting expense among all tenants by charging higher rent.  When a tenant is made liable for damage that is caused by that tenant, the landlord is better able to control rent and the tenant has an economic incentive for prudent stewardship of the premises.” 

Which of the three opinions seem more reasonable and logical to you?

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