MERRILL v. JANSMA No. 02-205.
86 P.3d 270 (2004)
Sue A. MERRILL, Appellant (Defendant), v. Alvina JANSMA, Appellee (Plaintiff).
Supreme Court of Wyoming.
March 18, 2004.
Representing Appellant: Colin M. Simpson of Simpson, Kepler & Edwards, LLC, Cody, Wyoming.
Representing Appellee: Jeffrey J. Gonda and Michael C. Steel of Lonabaugh & Riggs, Sheridan, Wyoming.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
[¶ 1] Sue A. Merrill appeals from a summary judgment dismissing her claims for personal injury resulting from a fall on rental property belonging to Alvina Jansma. She claims the district court erred in ruling that, as a matter of law, Ms. Jansma owed no duty to Ms. Merrill under the Residential Rental Property Act, Wyo. Stat. Ann. § 1-21-1202 (LexisNexis 2001) and no genuine issue of material fact existed under the common law as set forth in Restatement (Second) of Torts § 326 (1965). We reverse and hold the Residential Rental Property Act imposes a duty on landlords to maintain leased premises in a fit and habitable condition. We further hold that this duty establishes the standard of care applicable generally to personal injuries occurring on leased premises—a standard of reasonable care under the circumstances. Finally, we hold that the statutory duty and the standard arising from it replace the common law rule of landlord immunity and its exceptions.
[¶ 2] Ms. Merrill states the issues as follows:
[¶ 3] Ms. Jansma restates the issues as follows:
[¶ 4] The facts, viewed in the light most favorable to the party opposing the summary judgment motion, are that on February 19, 2000, Ms. Merrill injured her right shoulder when she fell as she was ascending the front steps leading to the porch and front door of the mobile home her daughter, Sherri Pritchard, rented from Ms. Jansma. The step became loose during the time Ms. Pritchard rented the home. Prior to the fall, Ms. Pritchard attempted to repair the step by securing it with nails. When that failed, she informed the manager of the property that the step was loose. The manager suggested Ms. Pritchard try using screws to secure the step. Ms. Pritchard told the manager she did not have a screw gun. The manager had one and said she would screw the step into place. Subsequently, and without Ms. Pritchard's knowledge, the manager attempted to repair the step. Apparently, that effort was unsuccessful and Ms. Merrill fell when the step separated from the porch as she stepped on it.
[¶ 5] Ms. Merrill filed a negligence claim against Ms. Jansma as the owner of the property alleging she knew or reasonably should have known the step was dangerous and failed to exercise reasonable care to alleviate the danger. She further alleged Ms. Jansma owed a duty of care to her as a visitor to the rental property. She sought damages for the injuries she sustained in the fall from the step, including medical expenses, lost earnings and damages for emotional distress and pain and suffering. Ms. Jansma answered the complaint and then filed a motion for summary judgment, claiming she owed no legal duty to Ms. Merrill. The district court granted Ms. Jansma's motion for summary judgment, holding that, as a matter of law, she had no legal duty to Ms. Merrill under either the Residential Rental Property Act or the common law as set forth in § 362 of the Restatement.
STANDARD OF REVIEW
[¶ 6] In reviewing summary judgment orders, we have the same duty, review the same materials, and follow the same standards as the district court. Hoblyn v. Johnson, 2002 WY 152, ¶ 11, 55 P.3d 1219, ¶ 11 (Wyo.2002). The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. Id. A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. Board of County Commissioners of Teton County v. Crow, 2003 WY 40, ¶ 17, 65 P.3d 720, ¶ 17 (Wyo.2003).
[¶ 7] We view the record from the standpoint most favorable to the party opposing the motion, giving to that party all favorable inferences that fairly may be drawn from the record. Id. We will uphold summary judgment on the basis of any proper legal theory appearing in the record. Id. We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling. Goglio v. Star Valley Ranch Association, 2002 WY 94, ¶ 12, 48 P.3d 1072, ¶ 12 (Wyo.2002). Summary judgment is not favored in negligence cases. Roitz v. Kidman, 913 P.2d 431, 432 (Wyo.1996). We, therefore, scrutinize orders granting summary judgment more carefully in such cases. Id.
1. Residential Rental Property Act
[¶ 8] In its summary judgment order, the district court held Ms. Jansma owed no duty to Ms. Merrill under the Residential Rental Property Act, Wyo. Stat. Ann. § 1-21-1201, et seq. (LexisNexis 2001) because Ms. Merrill failed to give Ms. Jansma written notice of the loose step as required by the act. Ms. Merrill contends this holding is incorrect in two respects. First, she cites § 1-21-1202(a) of the act, which states: "[e]ach owner and his agent renting or leasing a residential rental unit shall maintain that unit in a safe and sanitary condition fit for human habitation." Ms. Merrill asserts that, by the enactment of this provision, the legislature abrogated the common law rule of landlord immunity and imposed a broad affirmative duty upon landlords and their agents to maintain rental properties in a reasonably safe condition. She claims Ms. Jansma breached this duty by failing to maintain, or have her manager maintain, the steps leading up to Ms. Pritchard's home. Ms. Merrill also contends the district court erred in holding that her failure to give written notice under § 1-21-1206 precludes her claim. She asserts the notice provision applies only when a landlord disputes a tenant's request for repair, which did not occur here.
[¶ 9] Citing the rule that legislative abrogation or modification of the common law will not be presumed absent explicit, unambiguous language demonstrating that intent, Ms. Jansma argues the Residential Rental Property Act does not abrogate the common law rule of landlord immunity. Ms. Jansma asserts the act does not explicitly repeal the common law and, when read as a whole, does not support the conclusion that the legislature intended to impose a general duty requiring a landlord to maintain rental premises, including steps, on a single-dwelling unit. Rather, she contends, it is clear the legislature intended only to set out minimum health and safety requirements—operational electricity, heating, plumbing and hot and cold water—and procedural mechanisms for enforcing them. In the event we find the legislature intended to abrogate the common law rule of immunity, Ms. Jansma argues alternatively that Ms. Pritchard did not comply with the notice requirements of the Residential Rental Property Act and Ms. Merrill's claim is precluded for that reason. We consider first the question of whether the act imposes a duty on landlords supplanting the common law rule of immunity. In addressing that issue, we find it helpful to review the development of landlord-tenant law from a historical perspective.
a. Historical Development
[¶ 10] For centuries, landlord immunity was the rule in landlord-tenant law.
Old Town Development Company v. Langford, 349 N.E.2d 744, 753-54 (Ind.App.1976) (footnotes omitted).
[¶ 11] With the transition from a mostly rural to a more urban society, however, the rule of landlord immunity gave way slightly to some judicially recognized exceptions.
Id. at 754-55. Five exceptions to the rule of landlord immunity emerged.
[¶ 12] Despite, or perhaps in part because of the exceptions, there was by the 1960s
Id. at 595, 111 N.W.2d 409. Pines was followed by Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969) and Javins v. First National Realty Corporation, 428 F.2d 1071 (D.C.Cir. 1970). The latter decision is frequently cited as the first all-out assault on traditional concepts of landlord-tenant law. Old Town, 349 N.E.2d at 756; Olin L. Browder, The Taming of a Duty—The Tort Liability of Landlords, 81 Michigan Law Review 99, 109 (1982). Like the court in Old Town, the courts in Lemle and Javins recognized that an implied warranty of habitability applied to rental property. Since then a number of other courts have followed the lead of Pines and its progeny.
[¶ 13] In addition to the courts that rejected the common law in favor of recognition of an implied warranty of habitability, other courts cast aside landlord immunity on the basis of general negligence principles. In Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, 530 (1973), the court said:
General principles of tort law ordinarily impose liability upon persons for injuries caused by their failure to exercise reasonable care under all the circumstances. A person is generally negligent for exposing another to an unreasonable risk of harm which foreseeably results in an injury. But, except in certain instances, landlords are immune from these simple rules of reasonable conduct which govern other persons in their daily activities. This "quasisovereignty of the landowner" (2 F. Harper and F. James, Law of Torts 1495 (1956)) finds its source in agrarian England of the dark ages. Due to the untoward favoritism of the law for landlords, it has been justly stated that "the law in this area is a scandal." Quinn and Phillips, The Law of Landlord Tenant: A Critical Evaluation of the Past with Guidelines for the Future, 38 Ford L.Rev. 225 (1969). "For decades the courts persistently refused to pierce the hardened wall that preserved the landlord-tenant relationship in its agrarian state." Note, 59 Geo. L.J. 1153, 1163 (1971). But courts and legislatures alike are beginning to reevaluate the rigid rules of landlord-tenant law in light of current needs and principles of law from related areas. "Justifiable dissatisfaction
On this basis, the court discarded the common law rule and held:
Id. at 534 (some citations omitted). Citing the New Hampshire court's decision in Sargent, the Nevada Supreme Court likewise removed the landlord's cloak of immunity in Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290, 1293 (1985), holding:
[¶ 14] As mentioned in Sargent, the re-evaluation of landlord-tenant law has not been confined to the judiciary. In the past thirty years, legislatures in nearly every state have enacted statutes imposing new duties on landlords. The Uniform Residential Landlord and Tenant Act (URLTA) likely played a role in this development and served as a model for similar legislation, with varying degrees of amendment, in many states. 7B Uniform Laws Annotated (West Group 2000), Uniform Residential Landlord and Tenant Act, 527 (1972); Browder, supra, at 113. Although the URLTA differs in many respects from Wyoming's Residential Rental Property Act, both acts contain provisions requiring landlords to maintain the premises in a fit, safe and habitable condition. Both acts are also illustrative of the overwhelming movement nationwide away from landlord immunity and toward landlord responsibility for known dangers and those which ought to be known with the exercise of reasonable care. For that reason, we briefly discuss the URLTA.
[¶ 15] The purposes of the URLTA as stated in § 1.102 are generally to modernize the law and the rights and obligations of landlords and tenants, encourage both lessor and lessee to maintain rental premises, and make uniform the laws among those states that adopt it. Uniform Laws Annotated, supra, at 534. Among other things, the URLTA provides:
(2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
(4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, airconditioning, and other facilities and appliances... supplied or required to be supplied by him[.]
* * *
Id. at 566. Section 4.101(a) of the URLTA authorizes the tenant to provide written notice to a landlord who is not in noncompliance with the preceding section that the lease will terminate if the condition is not corrected. Id. at 609. Section 4.101(b) allows the tenant to recover actual damages for the landlord's
[¶ 16] Altogether, over forty states have discarded the common law rule of landlord immunity and recognize a duty in some form, either through legislation, judicial declaration, or both.
[¶ 17] In Thompson v. Crownover, 259 Ga. 126, 381 S.E.2d 283, 284-85 (1989), for example, after noting the Georgia legislature's early rejection of the common law in favor of a duty of reasonable care, the court said:
The Massachusetts court held a landlord is required to exercise reasonable care to correct unsafe conditions of which he has notice and if he fails to make the repairs, the tenant or any person rightfully on the premises may bring a tort action against him for any injuries sustained. The court found this result
[¶ 18] Similarly, in Newton v. Magill, 872 P.2d 1213 (Alaska 1994), the Alaska Supreme Court held a landlord has a duty of reasonable care in light of all the circumstances. The court stated:
Id. at 1217. The court further stated:
Id. at 1218.
[¶ 19] In accord with these cases, the court in New Haverford Partnership v. Stroot, 772 A.2d 792 (Del.2001) held:
In reaching this result, the court said:
Id. at 798. Like the courts in Georgia, Massachusetts, Alaska and Delaware, courts in the following states have applied negligence principles to landlord tenant relations on the basis of either legislative or judicial pronouncement: Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27, 31 (1963); Stephens v.
[¶ 20] Even in states sometimes cited as having neither a statute nor court decision imposing liability on landlords,
[¶ 21] In contrast to the forty-plus states that have done away with landlord immunity, a few states have retained the common law except as explicitly provided in their particular landlord-tenant act. Nebraska, for example, enacted the URLTA but has since substantially modified it, including adding a provision that states: "The obligations imposed by this section are not intended to change existing tort law in the state." Neb. Rev.Stat. § 76-1419 (1974). The Nebraska Supreme Court has interpreted this provision to mean that the act does not change the common law, thus a landlord owes no duty to a tenant to repair leased premises absent a contractual provision to that effect or retention of control of the area where an injury occurs. Tighe v. Cedar Lawn, Inc., 11 Neb.App. 250, 649 N.W.2d 520 (2002). It bears repeating, however, that Nebraska is one of only a very few states that adheres strictly to the common law "no duty" rule.
[¶ 22] Unlike Nebraska, other states that continue to apply the common law allow personal injury claims against a landlord on the basis of various legal theories. In Ohio, for example, despite the courts' continued adherence to the common-law rule, a landlord may be liable in tort for failing to maintain leased premises in a fit and habitable condition as required under Ohio's Landlords and Tenants Act. Ohio Rev.Code Ann. 5321.04 (1974); Shump, 644 N.E.2d at 296. The Ohio statute is viewed as an exception to a landlord's common-law immunity and as expanding the duties a landlord owes to those using rental property. Id.
[¶ 23] Along similar lines, the Oregon Supreme Court has held that the common law exists alongside the Oregon Residential Landlord and Tenant Act (ORLTA). Davis v. Campbell, 327 Or. 584, 965 P.2d 1017,1021 (1998). Thus, a tenant may bring a statutory claim under the ORLTA, a common-law negligence claim, or both. Id. With respect to the statutory claim, the court held the fact that the legislature did not incorporate elements of common-law negligence into the statute indicated its intent that a tenants' remedies under the act not be conditioned upon proof of such elements (thus, the court would not read into the act a requirement that the landlord have actual or constructive knowledge of an unsafe condition). Id. at 1019. Of further interest in terms of the issue before us, the Oregon Supreme Court has broadened the standard applicable to common-law negligence claims by rejecting previously adopted principles of obvious danger and actual or constructive knowledge in favor of more general comparative negligence principles. Coulter Property Management, Inc. v. James, 328 Or. 164, 970 P.2d 209 (1998). Citing the rule that the court would "reconsider a court-created rule or doctrine if `surrounding statutory law or regulations have altered some essential legal element assumed in the earlier
[¶ 24] The Washington courts also continue to recognize common law principles governing personal injury claims arising out of the landlord-tenant relationship while simultaneously allowing claims for personal injuries by tenants based upon the Washington Residential Landlord-Tenant Act. Tucker v. Hayford, 118 Wn.App. 246, 75 P.3d 980 (2003). In reaching this result, the court has emphasized the provision of the Washington act taken from the URLTA authorizing the tenant to bring an action in an appropriate court for any remedy provided under the act or otherwise provided by law. Id. at 985.
[¶ 25] As this discussion illustrates, landlord-tenant law has evolved considerably from the days when the common law rule was established. Today, the vast majority of states recognize that a landlord has a duty to maintain rental property in a safe, habitable condition. With this overview in mind, we turn to a discussion of the law in Wyoming.
b. The law in Wyoming
[¶ 26] Despite the overwhelming movement in other states to replace the rule of landlord immunity, Wyoming up to now has continued to apply the common law rule — absent a contractual provision to repair, a landlord generally owes no duty to a tenant or a tenant's guests for dangerous or defective conditions of the premises. Hefferin v. Scott Realty Co., 71 Wyo. 114, 254 P.2d 194, 197 (1953). The only exceptions we have recognized to this general rule are where:
1. Hidden or latently dangerous conditions known to the landlord and unknown to the tenant cause an injury.
2. The premises are leased for public use and a member of the public is injured.
3. An injury occurs on a part of the premises retained under the control of the landlord but open to the tenant's use.
Ortega v. Flaim, 902 P.2d 199, 202 (Wyo. 1995). In all but the five limited circumstances listed above, we have held to the common law rule that a landlord owes no duty to a tenant and have declined on several occasions to join the majority of states by judicially adopting landlord liability. Id., Pavuk v. Rogers, 2001 WY 75, 30 P.3d 19 (Wyo. 2001). Such a change in the common law, we have said, is best left to the legislature. Id. Most notably, in Ortega, we said:
Where this court has considered whether a duty should be imposed based on a particular relationship, numerous factors have been balanced to aid in determining whether a duty should be imposed. Social guest Ortega does not analyze these factors or provide a record for our analysis, but offers only the decision of Sargent [v.
Ortega, 902 P.2d at 202-04 (some citations omitted).
[¶ 27] Presumably with Ortega in mind, the legislature in short order took up the matter of landlord-tenant law. Just over a year after the decision, during the 1997 legislative session, a bill addressing landlord-tenant relations was introduced and assigned to committee where it was defeated without reaching the floor of either chamber. Two years later, during the 1999 legislative session, it was modified, reintroduced, amended, and passed into law as the Wyoming Residential Rental Property Act, § 1-21-1201, et seq. The provisions of the act pertinent to this appeal are quoted below. Those set out in bold and italicized are central to the issues before us.
(i) Intentionally or negligently destroy, deface, damage, impair or remove any part of the residential rental unit or knowingly permit any person to do so;
(ii) Interfere with another person's peaceful enjoyment of the residential property; or
(iii) Unreasonably deny access to, refuse entry to or withhold consent to enter the residential rental unit to the owner, agent or manager for the purpose of making repairs to or inspecting the unit, and showing the unit for rent or sale.
Sections 1-21-1207 through 1211 of the act address matters arising after termination of a rental agreement, such as the disposition of any deposit, prepaid rent, or personal property left behind by the renter, damage to the premises, refusal to vacate and owner's remedies, and are not relevant to the issues presented for our review. Having considered the language of our statute, as well as the law in other states, we turn to the question before us—the effect, if any, of Wyoming's landlord-tenant statute on the common law rule of landlord immunity.
[¶ 28] In considering the pertinent provisions, we are bound by well-established rules for interpreting and construing statutes.
Albertson's, Inc. v. City of Sheridan, 2001 WY 98, ¶ 7, 33 P.3d 161, ¶ 7 (Wyo.2001) (citations omitted). When the legislature has spoken in unambiguous terms, however, "we are bound to the results so expressed." Id. A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. Rawlinson v. Greer, 2003 WY 28, ¶ 14, 64 P.3d 120, ¶ 14 (Wyo.2003). A statute is ambiguous only if it is found to be
McClean v. State, 2003 WY 17, ¶ 6, 62 P.3d 595, ¶ 6 (Wyo.2003) (citations omitted).
[¶ 29] We will not insert language into the statutes that the legislature omitted. Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 9, 61 P.3d 1229, ¶ 9 (Wyo.2003). A basic tenet of statutory construction is that omission of words from a statute is considered to be an intentional act by the legislature, and this court will not read words into a statute when the legislature has chosen not to include them. Id.
[¶ 30] Applying these rules of statutory interpretation to the provisions quoted above, we note first the absence of explicit language stating that the act is intended to abrogate, preserve, or modify the general common-law rule of landlord immunity. The act does not contain a statement of purpose nor does it reference in any manner the common law rule of landlord immunity. It likewise makes no reference to personal injury claims arising from unsafe conditions on rental premises.
[¶ 31] The act does, however, clearly and expressly impose a duty on landlords not previously recognized in Wyoming law. Section 1-21-1202(a) requires landlords to maintain rental units in a safe, sanitary and habitable condition. Section 1-21-1203(a)(i) prohibits landlords from renting premises that are not reasonably safe, sanitary and fit for human occupancy. Ms. Merrill asserts the imposition of the duty is itself sufficient evidence of legislative intent and that an express statement of intent to abrogate the common law is unnecessary—no duty existed before, a duty clearly exists now, therefore, the act abrogated, or at least modified, the common-law rule of landlord immunity.
[¶ 32] In contrast, Ms. Jansma contends the language is insufficient to change the common law of immunity. She argues the act must contain explicit language stating that the common law is abrogated, repealed or modified in order for this court to conclude the legislature intended to change the common law. As examples of statutory enactments containing such express language, Ms. Jansma cites Wyo. Stat. Ann. § 1-39-102(b) of the Wyoming Governmental Claims Act (abolishing judicially created categories for determining governmental immunity or liability), Wyo. Stat. Ann. § 6-1-102 of the Wyoming Criminal Code (abolishing common law crimes), Wyo. Stat. Ann. § 27-14-101(b) of the Wyoming Worker's Compensation Act (providing the common law rule of liberal construction does not apply) and Wyo. Stat. Ann. § 34-20-104(c) of the Condominium Ownership Act (providing common law rules do not apply).
[¶ 33] It is well-established that legislative intent to repeal the common law will not be inferred absent clear language evidencing that intent. However, effectuation of such repeal does not require the use of some particular word or words. It requires instead plain, unambiguous language making it clear that is what was intended. This Court recognized long ago that "when a common-law procedure or a precedence in the court of common law has prevailed for centuries the statute which abrogates it should be so plainly expressed that nothing is left to disputable inference." McBride v. Union Pacific Railway Co., 3 Wyo. 247, 21 P. 687, 690 (1889). More recently we said:
Kaycee Land and Livestock v. Flahive, 2002 WY 73, ¶ 9, 46 P.3d 323, ¶ 9 (Wyo.2002) (citation omitted).
[¶ 34] Absent a manifestation of legislative intent to repeal a common-law rule, statutes should be construed as consistent
[¶ 35] On the basis of these standards, we have held that legislative intent to abrogate, change or retain common law rules was clear even in the absence of particular words to the effect that the common law was abrogated. The right to sue for wrongful death, for example, did not exist at common law but was purely a creature of statute. Robinson v. Pacificorp, 10 P.3d 1133, 1139 (Wyo.2000). The right was recognized as abrogating the common law even though the act did not contain words to that effect. In O'Donnell v. City of Casper, 696 P.2d 1278, 1282 (Wyo. 1985), we held the common law rule that a known and obvious danger barred recovery was not compatible with the comparative negligence statute. Although we concluded the common law rule was not completely abrogated by statutory comparative negligence, we indicated the statute modified the known and obvious danger rule—even though the statute did not expressly say it was intended to have that effect. Likewise, the Wyoming legislature has enacted several statutes impacting the common law rules governing livestock running at large, which we have applied in derogation of the common law even though the statutes did not expressly state they repealed the common law. Andersen, 49 P.3d at 1020.
[¶ 36] The need for change in the common law pertaining to landlord-tenant relations has been recognized in most other states. This Court likewise acknowledged that change was warranted but declined to act judicially, believing it was a matter for the legislature. Our legislature subsequently acted with the adoption of the Residential Rental Property Act. It acted with plain language that leaves no room for disputable inference. The language of the act does not require us to presume the legislature intended to modify the common law. Nor does it suggest a change in the common law by doubtful implication or by unclear, ambiguous language. Rather, the language of the act clearly states that landlords have a duty not previously recognized in Wyoming.
[¶ 37] Section 1-21-1202 is entitled "Duties of owners and renters; generally." It requires owners to "maintain [rental property] in a safe and sanitary condition fit for human habitation" and, unless otherwise agreed in writing, to provide "operational electrical, heating and plumbing, with hot and cold running water." Section 1-21-1203 is also entitled "Owner's duties" and subsection (a) delineates the components of the duty described in § 1-21-1202 more specifically—to protect the health and safety of the renter, the owner shall: not rent premises unless they are safe, sanitary and fit for human occupancy; maintain common areas in a sanitary and reasonably safe condition; maintain electrical, plumbing, heating and hot and cold water systems; and maintain other aspects of the premises as agreed in the lease.
[¶ 38] These provisions are directly contrary to the common law rule that a landlord owed no duty to a tenant for dangerous or defective conditions of the premises. Hefferin, 71 Wyo. 114, 254 P.2d 194. The act clearly and unequivocally changed the common law by requiring landlords to provide rental premises that are reasonably safe, sanitary and fit for human habitation. Electricity, heating, plumbing and hot and cold running water are certainly among the items the landlord must provide. Contrary to Ms. Jansma's argument, however, the act when considered as a whole cannot be reasonably read to say that a landlord who provides electricity, heating, plumbing and hot and cold water has fulfilled his duty. The initial statement of the general duty imposed by § 1-21-1202(a) is broader, contains no limiting language supporting Ms. Jansma's narrow interpretation and is clarified in § 1-21-1203(a) where the duty owed by landlords is more specifically defined to include four separate components, including, not renting premises unless they are safe, sanitary and fit for human occupancy
[¶ 39] We further hold that this legislatively created duty establishes a new standard of conduct for purposes of personal injuries occurring on rental property. As we said in McClellan v. Tottenhoff, 666 P.2d 408, 413 (Wyo.1983), the duty of exercising care to protect another person may exist either at common law or be imposed by statute, and where legislation is silent as to whether it establishes a new standard of conduct for purposes of a tort action, it is up to the judiciary to decide whether it has that effect. Here, the statute imposed the duty, and we conclude that it likewise establishes a new standard of conduct in cases involving personal injuries occurring on rental property — a standard of reasonable care under all of the circumstances. In reaching this conclusion, we act to further the legislature's intent. Our holding is also influenced by the following comment:
Browder, supra, at 124.
[¶ 40] In concluding that the act does away with the common law rule and its exceptions and imposes a duty of reasonable care under the circumstances, we also point to the rule that we are to presume the legislature enacts statutes with full knowledge of existing law. Parker, 845 P.2d at 1044. We do not review statutes in isolation but rather construe them in relation to and in harmony with existing law and as part of a general and uniform system of jurisprudence. Id. Our legislature enacted the Residential Rental Property Act at a time when landlord-tenant law was undergoing massive changes nationwide. Numerous states had already enacted the URLTA. The vast majority of other states, either by legislation or by judicial decision, had adopted similar rules of law imposing a duty on landlords. We had expressly deferred similar action to our state legislature. Accordingly, we presume the legislature enacted the Residential Rental Property Act with full knowledge of the law in Wyoming that, with only limited exceptions, a landlord historically had no duty to maintain rental premises. We also presume the legislature enacted the provision with full knowledge that the trend nationwide has been to replace the no-duty rule and impose a duty on landlords to keep rental property safe. We further presume the legislature promulgated the act with full knowledge that this Court declined to judicially change the common law rule on several occasions because in our view it was a matter for the legislature. Making these presumptions, and looking at the plain language used by the legislature, we do not find the act to be vague or uncertain or subject to varying interpretations. In providing that the owner of rental property and his agent have a duty to "maintain that unit in a safe and sanitary condition fit for human habitation," the legislature has spoken in unambiguous terms and we are bound to the results so expressed. Albertson's, ¶ 7. We turn to the question whether Ms. Merrill's claim is precluded because she failed to give written notice of the broken step as required in the act.
d. The notice provision
[¶ 41] As set forth above, § 1-21-1203(b) requires a tenant who has a reasonable belief supported by evidence that the premises are not safe, sanitary and fit for habitation to
[¶ 42] Pursuant to the clear language of the act, there is no question the tenant is required to provide written notice to the landlord before he is entitled to the relief available under § 1-21-1206. The act uses the word "shall" in describing the renter's obligation to provide written, certified notice to the landlord, a word usually accepted by this Court as a mandatory term. Stewart Title Guaranty Co. v. Tilden, 2003 WY 31, ¶ 7, 64 P.3d 739, ¶ 7 (Wyo.2003). Where a statute uses the mandatory language "shall," a court must obey the statute and has no right to make the law contrary to what the legislature prescribed. In re: DCP, 2001 WY 77, ¶ 16, 30 P.3d 29, ¶ 16 (Wyo.2001). Therefore, for purposes of the remedies available under the Residential Rental Property Act, Ms. Pritchard was required to advise Ms. Jansma in writing of the condition of the step. Her failure to provide the notice required precludes any claim Ms. Merrill may have had to the relief available under the act.
[¶ 43] Ms. Merrill, however, did not seek the relief available under the act. She did not seek to recover damages for rent improperly retained nor did she seek termination of the rental agreement or an order directing Ms. Jansma to make reasonable repairs. She also did not seek damages available in county or justice of the peace court, courts of limited jurisdiction that are not statutorily authorized to hear cases involving claims in excess of $7000 and $3000 respectively.
[¶ 44] We have said, "[r]emedial statutes are presumed to provide remedies in addition to those which existed at common law and equity, unless a clear intent is expressed to make the statutory remedy exclusive." Urbach, 73 P.2d at 961. The language used in the Residential Rental Property Act suggests the legislature intended the remedies available under the act to be aimed at corrective action—either getting the landlord to fix the problem or reimbursing the tenant for back rent or letting him out of the lease. There is nothing to suggest the legislature intended the remedies to be the exclusive remedy in all actions arising out of the landlord-tenant relationship. There likewise is nothing to suggest the legislature intended the remedies to preclude the usual remedies for personal injury. This conclusion is supported by the decisions of other courts that have addressed the issue.
[¶ 45] In Shroades v. Rental Homes, Inc., 68 Ohio St.2d 20, 427 N.E.2d 774 (1981), the court addressed the remedies available under the Ohio Landlords and Tenants Act by stating:
Id. at 777 (citations omitted). Similarly, in Jones v. Bierek, 88 Or.App. 11, 743 P.2d 1153 (1987), the landlord argued Oregon's Residential Landlord and Tenant Act (ORLTA) replaced all common law actions between landlord and tenants and, therefore, a one year statute of limitations applied rather than the two year limitation period for negligence claims. The court rejected the argument, concluding the statutory provisions and legislative history did not clearly evince an intention to replace negligence claims between landlord and tenant. The court said, "it is highly unlikely the legislature would eliminate a large segment of the state's tort law ... without explicitly spelling out its intention to do so. We treat plaintiff's pleadings as stating cognizable claims for negligence." Id. at 1154.
[¶ 46] Paraphrasing what the court said in Newton, 872 P.2d at 1217, it would be inconsistent with the duty to maintain imposed by the act to exempt from tort liability a landlord who fails in this duty. Our legislature by adopting the act has manifested acceptance of the policy reasons behind the URLTA and other statutes and judicial decisions imposing a duty on landlords. Maintaining the common law rule and its exceptions in personal injury cases, while imposing a new duty only in cases seeking repair, return of rent or termination of the lease, cannot be squared with that policy. It simply makes no sense to permit a tenant to withhold rent or terminate a lease because of a broken step while denying him a remedy for personal injuries sustained as a result of it. See also Browder, supra, at 125. We hold that the remedies provision of the act is exclusive to cases in which corrective action is sought and does not apply in personal injury actions. Therefore, Ms. Pritchard's failure to provide written notice of the broken step as required under § 1-21-1203(b) does not preclude Ms. Merrill's claim.
2. Restatement (Second) of Torts, § 326.
[¶ 47] In her complaint, besides claiming Ms. Jansma breached the duty imposed by the Residential Rental Property Act, Ms. Merrill also claimed she breached the duty imposed by § 326 of the Restatement (Second) of Torts.
[¶ 48] With the enactment of the Residential Rental Property Act, Wyoming joined the majority of other states by modifying the rule of landlord immunity and imposing a duty on owners of rental property to maintain them in a safe, sanitary and habitable condition. The imposition of that legislatively created duty gives rise to a new standard of care applicable in cases involving personal injuries occurring on rental property, i.e. reasonable care under the circumstances. Upon establishing that a breach of this standard proximately caused injury, the injured party is entitled to prove any damages recoverable in a personal injury claim. The remedies provided for in the act are limited to cases where corrective action is sought by a tenant in the form of an order requiring the landlord to make repairs, refund or excuse rental payments or allow the tenant to be excused from the lease.
[¶ 49] Reversed and remanded for further proceedings.
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