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Duplex not governed by safe place statute

What the court held

Case: Raymaker v. American Family Mut. Ins. Co., No. 2005AP1557

Issue: Can a tenant injured by a defective attic ladder in a duplex recover tort damages from the landlord, where the landlord was not negligent?

Holding: No. A duplex is not included within the definition of "public building" in the safe place statute, and neither the landlord-tenant code nor the lease authorizes recovery in tort.

Counsel: Burnett, R. George, Green Bay, for appellant; Pless, Erik J., Green Bay, for respondent.

The safe place statute does not apply to duplexes, the Wisconsin Court of Appeals held on May 2. The court also held that a landlord’s breach of a lease or violation of the landlord-tenant code does not give rise to a tort action.

In 1992, Mark Thomson bought a duplex in Green Bay that had been built in 1972. In 1999, Christopher L. Raymaker rented one of the two units. Included in the lease was a provision that the “Landlord shall have the responsibility to maintain the Premises in good repair at all times.”

The attic was accessible through a pull-down, fold-out ladder, that the parties presume was part of the original 1972 construction. Thomson never had a problem with the ladder. However, in 2000, Raymaker attempted to access the attic for the first time. He pulled the ladder down and inspected it for several minutes. After his inspection, Raymaker climbed the ladder.

One of the rungs broke, and Raymaker fell, injuring himself and requiring back surgery.

Raymaker filed suit, alleging negligence, violation of the safe place statute, breach of the lease, and violation of the landlord-tenant code (Chapter 704). An expert witness hired by Raymaker concluded that the ladder was negligently designed and manufactured, but could not determine whether any defects existed that could have been discovered by inspection prior to the accident.

Brown County Circuit Court Judge Kendall M. Kelley granted summary judgment in favor of Thomson. The court held as follows: Raymaker failed to prove negligence; Chapter 704 does not establish a private cause of action for its breach; Thomson had no notice of any defects and Raymaker therefore would be unable to meet his burden of proof on foreseeability, a prerequisite to contract damages; and the lease did not allow for tort damages in the event of its breach.

Raymaker appealed all but the negligence ruling, but the court of appeals affirmed in a decision by Judge Michael W. Hoover.

Safe Place Statute

The court first held that the safe place statute does not apply.

Section 101.11(1) requires, in relevant part, that “every owner of … a public building now or hereafter constructed shall so construct, repair or maintain such … public building as to render the same safe.” Section 101.01(12) defines a “public building” as “any structure … used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use[d] by the public or by 3 or more tenants.”

“Tenants” does not refer to the number of individuals living in the building, however, but to the number of units.

Raymaker argued that, because the duplex is used for “lodging” and “occupancy,” it is covered by the statute, even though it does not have three or more units.

Rejecting the interpretation as absurd, the court wrote, “If we subscribed to his interpretation, the safe place statute would apply not only to public buildings but to all private residences, including single family homes occupied by their owners.”

The court also found that such an interpretation would render superfluous that part of the definition that refers to the minimum number of tenants. Accordingly the court held that the duplex was not a public building to which the statute applies.

Raymaker also argued that the statute applies to structural defects in non-public parts of a building, citing Lealiou v. Quat-soe, 15 Wis. 2d 128, 112 N.W.2d 193 (1961), and Frion v. Coren, 13 Wis. 2d 300, 108 N.W.2d 563 (1961).

However, both cases involved buildings that were included within the definition of “public building.” Thus, even though the cases held that the statute applies to defects in non-public areas, the court found them distinguishable.

Landlord-Tenant Code

The court next held that a violation of sec. 704.07(2) does not authorize a private action for a structural defect.

The statute requires a landlord to “make all necessary structural repairs.” Ray-maker argued that, therefore, Thomson’s failure to repair the attic ladder is negligence per se.

However, the court found that Ray-maker provided no explanation why fixing the ladder was a “necessary” repair. The court concluded that, to be a “necessary” repair, a landlord must first have “some notice of the defect — latent or obvious — so that he or she can evaluate whether a repair is, in fact, a necessary repair.”

Even if there was a violation of the code, however, the court held that a violation of it does not create a private action. For negligence per se to arise, there must be some expression of legislative intent that the statute be a basis for imposition of civil liability.

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Case Analysis

However, the court found that the only purpose of the statute was to alter the common law rule that a landlord has no duty to repair leased premises. Thus, the only remedy the court found was rent abatement, not a private cause of action.

Breach

Finally, the court concluded that permitting a tort action would “obliterate the distinction between contract claims and tort claims.”

Assuming without deciding that Thom-son did breach the lease, the court nevertheless found that the damages were not foreseeable, given that Thomson had no prior problems with the ladder, Raymaker inspected it before using it, but found nothing wrong, and Raymaker’s own expert could not testify that a visual inspection would indicate needed repairs.

The court concluded, “Allowing personal injury damages for a breach of contract, at least on the facts before us, would, in our view, expand contract law so far as to ‘drown it in a sea of tort.’ (citing Grams v. Milk Prods., Inc., 2005 WI 112, par. 14, 283 Wis.2d 511, 699 N.W.2d 167).”

Because Raymaker’s only tenable basis for suit was negligence, for which his claim was dismissed without appeal, the court affirmed.

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David Ziemer can be reached by email.

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