Harrison v. Roberts

800 S.W.2d 40, 1990 Mo. App. LEXIS 1537, 1990 WL 159215
CourtMissouri Court of Appeals
DecidedOctober 23, 1990
DocketNo. WD 42524
StatusPublished
Cited by11 cases

This text of 800 S.W.2d 40 (Harrison v. Roberts) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison v. Roberts, 800 S.W.2d 40, 1990 Mo. App. LEXIS 1537, 1990 WL 159215 (Mo. Ct. App. 1990).

Opinion

GAITAN, Judge.

This case involves a suit for personal injuries and loss of consortium as a consequence of injuries which occurred on leased premises occupied by appellants. The plaintiffs-appellants, Kim and Katrina Harrison, appeal the judgment of the trial court which set aside the jury verdict [41]*41against defendants-respondents, Richard and Dinah Jo Roberts. The appellants allege the trial court erred by granting a judgment notwithstanding the verdict and by denying appellants the opportunity to present evidence which they believe supported their theory that respondent maintained control over the leased premises. We reverse.

In May of 1983, the plaintiffs, Kim Harrison and his wife Katrina Harrison, entered into a written rental agreement with the defendants, Richard Roberts and his wife Dinah Jo Roberts. The subject of the lease was a two bedroom house owned by the defendants. The rental agreement provided that the nature of the lease would be month-to-month and stated that the rent would be two-hundred and twenty-five dollars per month. The rental agreement further obligated the Harrisons to “maintain and return the premises in as good condition as when rented” and predicated the return of the security deposit on the appellants repairing any damages, beyond normal wear and tear, before vacating the premises. Aside from this language, the rental agreement was silent concerning who bore the responsibility of making repairs on the property.

On the evening of July 16, 1984, Mr. Harrison was changing a light bulb over the porch and steps that led into the backyard. After installing the bulb, Mr. Harrison stepped back and fell over the side to the ground below. Although there was a guardrail surrounding the porch, it collapsed and permitted Mr. Harrison to fall. As a result of the fall, Mr. Harrison sustained a severely broken leg.

The Harrisons filed the present action against the Robertses in an effort to recover for the injuries sustained by Mr. Harrison and for a loss of' consortium sustained by Mrs. Harrison. The theory of negligence submitted to the jury was that the Robertses, as landlords, had retained control of the premises and they were liable for failing to keep the stairs, porch, and guardrail in a reasonably safe condition. Appellants contend that actions by the Rob-ertses, such as retention of keys, inspection of the premises, promises to make repairs and actually making repairs on the premises, indicate a retention of control by the respondents.

At trial, the appellants sought, and were denied, introduction of evidence relating to insurance coverage held by the Robertses on the leased premises, the lack of a building permit for the stairs in question, and violations of the Kansas City Building Code. It was the appellants’ contention that the evidence was relevant and admissible to show control of the premises by the Robertses and knowledge of the dangerous condition.

The jury found that “defendants retained partial control of the house for the purpose of making repairs,” and returned a verdict for the plaintiffs. The jury found that Mr. Harrison had sustained $175,000 in damages and was 25% at fault, while Katrina’s damages were $100,000 and her fault was assessed at 90%. The trial court granted defendants’ motion for a judgment notwithstanding the verdict stating that the plaintiffs had failed to make a submissible case to the jury. Specifically, the court determined that the plaintiffs had failed to present evidence that the defendants owed a duty of care to the plaintiffs.

I.

Sustaining a motion for judgment notwithstanding the verdict is tantamount to directing a verdict at the close of all the evidence. Commerce Bank of Lebanon, N.A. v. Berry, 692 S.W.2d 830 (Mo.App.1985). Such a motion is properly granted only if plaintiff failed to make a submissi-ble case, that is, when all the evidence and reasonable inferences to be drawn therefrom are so strongly against plaintiff’s case that there is no room for reasonable minds to differ. McCulley v. State Farm Mut. Auto. Ins. Co., 668 S.W.2d 121 (Mo.App.1984); Bizzle v. Enterprise Leasing, 741 S.W.2d 84 (Mo.App.1987). The court must grant every reasonable inference the evidence provides to the appellants. Commerce Bank of Lebanon, N.A., 692 S.W.2d at 831.

[42]*42Plaintiffs’ case was based on the long standing rule in Missouri that when a landlord retains partial control of the leased premises for the purpose of making repairs, then the landlord is obligated to make such repairs and to keep the premises in a reasonably safe condition for the use intended. Tucker v. Taksel, 345 S.W.2d 385 (Mo.App.1961); Peterson v. Brune, 273 S.W.2d 278 (Mo.1954). The Tucker case, which crystalized this rule in Missouri, was cited and approved by the Missouri Supreme Court in the case of Lemm v. Gould, 425 S.W.2d 190 (Mo.1968). In a clear and cogent analysis of the type of control necessary to impose liability on the landlord, the Supreme Court stated:

In order to be bound to keep the premises in a reasonably safe condition the landlord need not have reserved such a degree of control as to be entitled to admit or exclude others from the premises. It is sufficient that he retained a general supervision over the premises for a limited purpose such as the making of repairs or alterations, and the right to enter the premises and make repairs upon his own initiative and responsibility.

Id. at 195.

Initially, we were somewhat persuaded by the respondents’ oral argument that the contract between the appellant and respondent limited maintenance responsibilities to appellants. However, that agreement was expanded by parol evidence at trial without objection. Thereafter, the contract between these parties was expanded with evidence to permit the trial court and jury to understand the intention of these parties. We find there is sufficient consideration for this modified contract to exist.

Taking the evidence in the light most favorable to the plaintiffs, the Roberts retained the right to control the premises for the purpose of making repairs. Not only were promises made at the outset of the lease concerning repairs and maintenance, but the landlords made periodic inspections of the property, entered the house for the purpose of making repairs and actually did make repairs to a portion of the porch in question. All of this occurred before the accident. Furthermore, the landlords took their actions both on their own initiative and in response to requests by the tenants. However, there was no prerequisite that the tenants consent. As Lemm held:

In addition to the agreement to repair and replace, the landlords retained a key to the apartment not only for emergency uses but also to use to enter the apartment “to do any repairs that they might think necessary.” This gave them the right to make repairs, on their own initiative and responsibility, without obtaining the consent of the tenants.

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Bluebook (online)
800 S.W.2d 40, 1990 Mo. App. LEXIS 1537, 1990 WL 159215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-roberts-moctapp-1990.