Rachel Tennell v. Midtown Apartments Limited Partnership
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DIVISION II
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUDGE DAVID M. GLOVER
CA06-127
November 15, 2006
RACHEL TENNELL
APPELLANT
AN APPEAL FROM SEBASTIAN COUNTY
CIRCUIT COURT
[No. CV-04-1330]
v.
MIDTOWN APARTMENTS
LIMITED PARTNERSHIP
APPELLEE
HONORABLE J. MICHAEL FITZHUGH,
CIRCUIT JUDGE
REVERSED and REMANDED
The Sebastian County Circuit Court granted summary judgment to appellee Midtown
Apartments Limited Partnership (Midtown) on appellant Rachel Tennell’s claim for personal
injuries allegedly caused by her tripping on a steel plate on Midtown’s parking lot. On
appeal, Tennell contends that the trial court erred in granting summary judgment because
Midtown assumed a duty to make repairs and that Arkansas should abandon the doctrine of
caveat lessee. We reverse and remand the trial court’s grant of summary judgment.
Tennell entered into a lease agreement for an apartment with Midtown on March 24,
1997. Midtown was subsidized and funded by the Department of Housing and Urban
Development (HUD) and specifically catered to elderly and handicapped tenants. On
August 13, 2002, Tennell was waiting under the breezeway for a ride from her daughter. She
saw a vehicle resembling her daughter’s car and started walking across the parking lot.
There was a large steel plate, approximately six to eight inches in diameter that was
approximately two inches high protruding from the driveway. Tennell fell and was taken to
a hospital where she was treated for her injuries.
On October 11, 2004, Tennell filed suit, alleging that she fell over the steel plate and
that Midtown was negligent in maintaining the premises. One of the specific allegations of
negligence was that Midtown attempted to make alterations or repairs to a post or pole but
did not completely remove all of the post and that the plate covered this area. Midtown
denied the material allegations of the complaint.
On August 5, 2005, Midtown filed a motion for summary judgment, arguing that a
landlord is not responsible for a tenant’s injuries in the common area of the apartment
complex. Tennell responded, arguing that Midtown had assumed a duty to make repairs to
the premises, thereby precluding summary judgment. Excerpts of deposition testimony were
submitted for the trial court’s consideration. On September 9, 2005, the trial court entered
an order granting Midtown’s motion, based on the doctrine of caveat lessee. The trial court
also found that Midtown did not agree in the lease to assume any duty. Tennell now appeals.
In her first point, Tennell argues that the trial court erred in granting summary
judgment to Midtown because, in the lease, Midtown assumed a duty to maintain the
premises and to make repairs. Arkansas follows the common-law rule that a landlord owes
no duty to his tenant to repair the premises. Wheeler v. Phillips Dev. Corp., 329 Ark. 354,
947 S.W.2d 380 (1997); Denton v. Pennington, 82 Ark. App. 179, 119 S.W.3d 519 (2003).
2
However, we have recognized that a duty can arise in certain circumstances under the terms
of a lease. See Denton, supra.
The question of duty owed by one person to another is ordinarily one of law. Elkins
v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993). However, when the matter of duty is
the subject of a contract that is ambiguous as to the parties’ intent, a question of fact is
presented. Id.; Denton, supra. Language in a contract is ambiguous when there is doubt or
uncertainty as to its meaning or it is fairly susceptible of two interpretations. Denton, supra.
On motion for summary judgment, the court, viewing the evidence in the light most favorable
to the nonmoving party, ascertains the plain and ordinary meaning of the language in the
written instrument, and if there is any doubt about the meaning, there is an issue of fact to
be litigated. Id.
The lease contained the following provisions:
1. [Midtown] leases to [Tennell], and [Tennell] leases from [Midtown]
dwelling unit in the project known as, Mid Town Apartments, for a term . . . .
....
15. [Tennell] for [herself] and [her] heirs, executors and administrators agrees
as follows:
....
(b) To keep the premises in a safe and sanitary condition, and to comply with
all obligations imposed upon TENANTS under applicable provisions of building and
housing codes materially affecting health and safety with respect to said premises and
appurtenances, and to save [Midtown] harmless from all fines, penalties and costs for
violations or noncompliance by [Tennell] with any of said laws, requirements or
regulations, and from all liability arising out of any such violations or
noncompliance.
....
3
17. [Midtown] agrees to comply with the requirement of all applicable
Federal, State, and local laws, including health, housing and building codes and to
deliver and maintain the premises in safe, sanitary and decent condition.
18. [Tennell], by the execution of this Agreement, admits that the dwelling
unit described herein has been inspected by [her] and meets with [her] approval.
[Tennell] acknowledges hereby that said premises have been satisfactorily completed
and that [Midtown] will not be required to repaint, replaster, or otherwise perform
any other work, labor, or service which it has already performed for [Tennell].
[Tennell] admits that [she] has inspected the unit and found it to be in good and
tenantable condition, and agrees that at the end of the occupancy hereunder to deliver
up and surrender said premises to [Midtown] in as good condition as when received,
reasonable wear and tear excepted.
(Emphasis added.)
The word “premises” makes the lease ambiguous because it is susceptible to more
than one interpretation in that, in addition to Tennell’s apartment, it may or may not
encompass the common areas such as the breezeway and parking lot. During oral argument,
Midtown’s counsel, in a refreshing display of candor, acknowledged that “dwelling unit” and
“premises” were not synonymous, which comports with the dictionary definition of
“premises” as “[a] house or building, along with its grounds.” 1 Although the lease seems to
place similar duties on both Tennell and Midtown to maintain the “premises,” it would not
make sense for Tennell to be obligated to maintain the common areas because Midtown is
the party in control of the common areas. A material question of fact remained; therefore,
the trial court erred when it granted Midtown’s motion for summary judgment.2
1
B LACK’S L AW D ICTIONARY 1219 (8th ed. 2004).
2
In light of our disposition of this point, we need not address Tennell’s argument that,
by its conduct, Midtown assumed a duty.
4
For her second point, Tennell argues that the doctrine of caveat lessee is outdated and
should be abandoned in Arkansas. The Arkansas Supreme Court was asked to overrule the
doctrine in Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996), and in Thomas v.
Stewart, 347 Ark. 33, 60 S.W.3d 415 (2001). The court declined to do so, stating that the
issue was best suited for determination by the legislature.
Act 928 of 2005, codified as Ark. Code Ann. § 18-16-110 (Supp. 2005), was the
legislature’s response to Propst and Thomas. The Act codified the common law rule that a
landlord is not liable to a tenant, the tenant’s licensees, or the tenant’s guests for death or
injury that was proximately caused by defects or disrepair on the premises. Tennell
recognizes that section 18-16-110 is in effect but still asks this court to overrule the doctrine
of caveat lessee. However, the legislature, rather than the courts, is empowered to declare
public policy, Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997), and whether a law is
good or bad, wise or unwise, is a question for the legislature, rather than the courts.
Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433 (1949). Further, this court is bound to
follow the precedents of our supreme court. See Gause v. Shelter Gen. Ins., 81 Ark. App.
133, 98 S.W.3d 854 (2003).
Reversed and remanded.
P ITTMAN, C.J., and G RIFFEN, J., agree.
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