Appellants-plaintiffs appeal a final summary judgment entered in favor of appellees-defendants in the suit of each plaintiff against such defendant, seeking damages for burns each party-plaintiff claimed that he sustained when gas fumes were ignited in an apartment owned by Eubanks and Barnett and rented by appellant Grigsby.
Barnett showed the apartment to Grigsby in the summer of 1976, and discussed repairs to the refrigerator and painting walls that the owners would do. Occupancy was to begin as of August 1, 1976. Grigsby made a $25 deposit to the rental agency handling the transaction on July 11, and it was understood that such deposit would hold the apartment for her until August 1, at which time payment of the agreed rent was to be made. Grigsby asked for permission to return to the apartment and measure for drapes. She was given a key and was also given permission to move her things into the apartment on a Thursday or
Prior to the time Grigsby moved into the apartment there had been no discussion concerning gas, but she knew that if she was going to have the gas turned on that would be her responsibility. Grigsby and Mansur went outside the apartment to the nozzle used to turn on the gas and, having turned on the gas, they walked back into the apartment. Neither claimant checked any of the appliances to make sure that they were turned off before they opened the gas valve to the apartment. They tried without success to light the stove, then decided to see if the hot water heater worked. Mansur struck a match near the bottom of the hot water heater and an explosion occurred. During the process of trying to light the stove, Grigsby smelled gas fumes and asked Mansur to check and see if he also smelled gas. Neither Mansur nor Grigsby notified the owners or checked about the stove prior to the explosion. Grigsby knew that it was her responsibility to make arrangements for the furnishing of the gas supply. Neither defendant ever made any representation to Grigsby or Mansur concerning the gas appliances.
There was a gap between a pipe coming from the back of the stove and a pipe coming into the house from a gas bottle. Gas escaping through such gap was the cause of the explosion. For some reason unknown to the owners prior to the explosion, the connecting length between these two pipes had been removed. At the time of the explosion the stove was in the same position that it occupied at the time the apartment was used by the last tenant. The owners had not authorized anyone to change stoves in the apartment or to move or disconnect any stoves. No tenant had complained that the stove had been disconnected or was not in operational order.
When considering a motion for the entry of a final summary judgment, the trial court must consider all of the agreed facts, as well as inferences properly arising therefrom in the light most favorable to the person against whom such judgment is sought. When equated by that formula, Grigsby was entitled to assume that, upon the delivery to her of the key to the apartment, she had possession of the apartment as a tenant, with rent yet to be paid. The owners did not reserve control over the appliances, however they did agree to fix the refrigerator. In the complaint filed by her in this cause, she identified herself as a tenant. In Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946), the Supreme Court of Florida settled the law relating to the duties of a landlord to a tenant, and the liability of a landlord to the tenant. The court ruled at pp. 206 and 207:
The plaintiffs urge that we follow the Third District Court of Appeal and adopt the rationale of its decision in Alexander v. Fiftieth Street Heights Co., 334 So.2d 161 (Fla. 3d DCA 1976). We have carefully examined that case, and are aware that the opinion here set forth is in direct conflict with the case mentioned. In arriving at the conclusion that the trial court is to be sustained in the entry of the summary judgments here reviewed, we follow that which we understand to be the law as mandated by the Supreme Court in Brooks v. Peters. If conflict now exists, so be it.
The summary judgments entered in favor of the defendants and against the appellants are each AFFIRMED.
MILLS, Acting C.J., concurs.
ERVIN, J., specially concurring.
ERVIN, Judge, specially concurring.
In the absence of statute,
The Third District Court of Appeal, in Rutecki v. Sorkin, 350 So.2d 486 (Fla. 3d DCA 1977), without expressly discussing caveat lessee, held the defense had been abolished by the Supreme Court's opinion in Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), and reversed summary judgment for the landlord in an action for damages by a tenant injured in a fall on a common walkway on the apartment premises.
The specific holding in Blackburn was that the affirmative defense of implied assumption of risk had merged into the defense of contributory negligence and that principles of comparative negligence, as enunciated in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), applied in all cases where the defense was raised. Blackburn v. Dorta, supra at 293. The court's decision was conditioned upon the effect of the Hoffman decision: "If assumption of risk is equivalent to contributory negligence, then Hoffman mandates that it can no longer operate as a complete bar to recovery. However, if it has a distinct purpose apart from contributory negligence, its continued existence remains unaffected by Hoffman." Id. at 289. (e.s.) Assumption of risk, as the Blackburn decision observed, may or may not, depending on the circumstances, be equivalent to contributory negligence. While the two may, on occasions, overlap, or one may exist without the other, 1 Dooley, Modern Tort Law § 6.04 at 156 (1977), both have distinct meanings.
Caveat lessee is founded upon the principle that there is no duty owed by the landlord to the tenant for any injury received by the tenant on the property leased if the landlord did not know of the condition of the risk involved, and the lessee was so aware.
Here appellants did not allege in their complaints any facts showing knowledge by the lessor of the defective uncapped gas outlet. There was consequently no allegation of any duty owed by the landlord to the tenant. The complaints would clearly have been subject to a motion to dismiss for failure to state a cause of action. Cf. Butler v. Maney, supra. While assumption of the risk is an affirmative defense which may be pleaded affirmatively in a defendant's answer, Fla.R.Civ.P. 1.110(d), it may also be asserted by motion to dismiss if the defense appears on the face of a prior pleading. Id.
From a realistic standpoint, it may be said that neither of the two appellants voluntarily exposed themselves to a known risk simply because the risk was to them unknown. The law, however, presumes volition resulting from the free association, or contract, between lessee and lessor. Primary assumption of risk, i.e., as a counterpart of defendant's lack of duty, "refers to risks that are incidental to a relationship of free association between plaintiff and defendant, ... one which either is at liberty to take or leave as he will." 2 F. Harper & F. James, supra note 3, at 1163. Therefore, if a landlord and a tenant freely enter into a contract for the lease of property, and the landlord is without knowledge of the defective conditions on the property, "it is immaterial whether the risk [to which the tenant is exposed] is reasonable or not." Id. at 1164. It is also irrelevant whether the defendant actually knows of the risk, voluntarily assumes it, or exercises unusual caution in meeting it,
If, as I conclude, caveat lessee has not been affected by either Hoffman v. Jones, supra, or Blackburn v. Dorta, supra, the Supreme Court may wish to consider whether a doctrine, which had its inception during the feudal years of rural England, Lesar, The Landlord-Tenant Relation in Perspective: From Status to Contract and Back in 900 Years? 9 Kan.L.Rev. 369, 371 (1961), should still be applied within the context of modern, urban conditions.
In 16th century England, when a lease was first characterized as a conveyance of property, it typically involved a transfer of land for agricultural purposes to a tenant who paid the rent from the proceeds of tilling the soil. Often there were no physical structures on the land and, if such improvements existed, they were only of secondary importance to the conveyance of the realty. Lesar, supra at 371. There was no implied warranty of habitability or fitness of the premises which extended from the landlord to the tenant, and the tenant's obligation to continue rental payments was independent of any defect which might render the premises uninhabitable. Quinn & Phillips, The Law of Landlord-Tenant: A Critical Evaluation of the Past With Guidelines for the Future, 38 Fordham L.Rev. 225, 230, 232-35 (1969). Moreover the tenant had no right to vacate the premises or remain in possession and withhold rental payments because of any defect. Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892). The tenant's only remedy was an action for damages. Id. The rule of caveat emptor also extended to bar a tenant from seeking an action in tort for damages resulting from defects in the premises.
It is possible our Supreme Court may wish to consider the approach followed by the New Hampshire Supreme Court in Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, 64 A.L.R.3d 329 (1973), which, having previously applied the implied warranty of habitability to landlord-tenant contractual relationships,
By analogy, the obviousness of the danger existing in machinery is now not an exception to liability in actions where recovery is sought against the manufacturer, but is rather a defense available to the manufacturer by which it may show the plaintiff did not exercise a reasonable degree of care under the circumstances. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla. 1979). There appears to be little justification in continuing to apply a doctrine
To summarize, I conclude that in the absence of statute, and other exceptions not relevant here, caveat lessee still applies to bar a tenant from recovering damages for personal injuries caused by defects on leased premises which the landlord was unaware existed. The wisdom of its continued application may judicially be determined only by the Florida Supreme Court. To that end, I suggest the following question be certified to the Florida Supreme Court pursuant to Art. V, § 3(b)(3), Fla. Const.: