POSTED: Monday, May 25th, 2009 at 1:00 am

BY: dmc-admin

Residential tenants can’t be held liable for actions that damage the property, unless the damage is the result of negligence.

On May 19, a divided Wisconsin Court of Appeals held that the “clear implication” of sec. 704.07(3) is that the landlord is responsible for damages that are not the result of negligence by either the landlord or tenant.

In an opinion written by Judge Patricia S. Curley and joined by Judge Kitty K. Brennan, the court voided a lease provision which made the tenant liable for all damages she caused, even in the absence of negligence.

Judge Ralph Adam Fine dissented, however, concluding that the statute only required the landlord to make the repairs, but did not prohibit apportioning responsibility via contract to the tenant.

Cari M. Connell rented an apartment in Milwaukee from Maryland Arms Limited Partnership. One night as she slept, a hair dryer that had been left plugged in caused a fire, resulting in $8,000 worth of damage to the apartment.

Maryland Arms filed suit against Connell, seeking reimbursement, pursuant to the following clause in the lease:

“Lessee shall be responsible for all intentional and negligent acts or breaches of this Lease by Lessee, Lessee’s occupants, guests and invitees. Lessee shall be liable for all damage to the premises and appliances and equipment belonging thereto, in any way caused by the acts of Lessee, Lessee’s occupants, guests and invitees.”

The parties stipulated that Connell was not negligent, and on cross-motions for summary judgment, Milwaukee County Circuit Court Judge Michael B. Brennan ruled in favor of Maryland Arms.

Connell appealed, and the Court of Appeals reversed.

The court held that the lease provision is contrary to sec. 704.07, and therefore void.

Subsec. (2)(a) of the statute provides that the landlord is required to make repairs unless the repairs were made necessary by the negligence of the tenant.

Subsec. (3)(a) provides that the tenant must repair any damages that are the result of his negligence.

Framing the question, “Who is responsible for damage caused by a fire started in a tenant’s apartment that was not due to the negligence or improper use of the premises by either the landlord or the tenant?” the court answered, “The clear implication of the statute is that the landlord is responsible for such damages.”

While the statute does not explicitly dictate who is responsible when a fire is caused by neither party’s negligence, the court concluded that the “only logical conclusion” is that the landlord is liable.

The court also found that the notes of the Judicial Council Committee supported this result.

The note provides, “Sub. (2) imposes on the landlord the duty to make certain types of repairs. It does not apply if the need for the repair was caused by misuse of the premises by the tenant, which would fall under sub. (3) or if the premises are damaged by fire or other casualty within sub. (4). Under this subsection the landlord is expected to make types of repairs of major proportions, which it is not reasonable to expect a tenant to make.”

Because subsec. (1) of the statute provides that any agreement to waive the requirements of the statute is void, the court struck the provision placing responsibility for the fire on Connell, and reversed the trial court.

Judge Fine dissented, concluding that while the landlord has the duty to repair fire damage, nothing in the statute requires the landlord to be ultimately responsible for the repair costs, if the parties agree otherwise.

James B. Connell, of Crooks, Low & Connell, S.C., in Wausau, who represented the defendants, said the court reached the correct decision, in line with both the letter and the spirit of the statute.

Connell noted that the landlord initially alleged negligence for leaving the hair dryer plugged in, but abandoned that theory. If it were negligent to leave a hair dryer plugged in, Connell noted, tenants could be just as liable for leaving a toaster plugged in.

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