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Trulsen v. Otto2/20/2002
Appeal from the Iowa District Court for Carroll County, Ronald H. Schechtman, Judge.
Shirley Trulsen appeals the district court's order granting summary judgment in favor of Clair Otto, her landlord, and dismissing her personal injury case. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Shirley Trulsen appeals from the district court order granting summary judgment and dismissing her negligence lawsuit against her landlord, Clair Otto, for personal injuries. Trulsen contends the district court erred in granting summary judgment because "there were several material disputed facts concerning the relative faults of the parties" and thus the case should have been submitted to a jury. We affirm in part, reverse in part, and remand for further proceedings.
I. BACKGROUND FACTS
Shirley Trulsen (hereinafter "Trulsen") and her husband, Bruce, rented and lived in one unit of a home owned by Clair Otto which had been divided into three rental units. The parties' lease was oral, no terms being reduced to writing. The Trulsens' unit had only one accessible entrance. The Trulsens alone used it, as the other two units had their own separate entrance or entrances. The Trulsens had rented and lived in the same unit about seven years as of January 1998. They had previously rented from Otto at other locations, including another unit in the same home. Otto had owned the home for twenty years or more as of January 1998.
Outside the Trulsens' entrance door were three steps down to a sidewalk. By longstanding practice and apparent implicit agreement the Trulsens normally removed snow from the steps and otherwise kept them clear and Otto assumed the same responsibilities for the sidewalks, although the Trulsens sometimes cleared the sidewalks as well as the steps and Otto sometimes cleared the steps as well as the sidewalks. There was no rain gutter on the roof on the side of the home where the Trulsens' entrance was located. The entrance had a handrail made of pipe. It was adjacent to but not on the steps. The handrail had been in the same location since before the Trulsens occupied the unit.
According to the Trulsens' deposition testimony, on January 16, 1998 there was substantial snowfall but no freezing rain, freezing drizzle, or sleet or other forms of precipitation, and in the late afternoon they shoveled the steps, sidewalk and driveway. On January 17 Trulsen was leaving home at about 4:45 a.m. to go to work. According to her deposition testimony she put one foot on the top entrance step, attempted to reach the handrail, but then slipped and fell down the three steps incurring personal injuries.
Trulsen subsequently filed this lawsuit against Otto. Her petition contained a general allegation that Otto's negligence caused her fall and injuries, but no specifications of acts or omissions constituting the alleged negligence.
Following certain discovery, including depositions, Otto moved for summary judgment. Trulsen resisted. In an affidavit in support of her resistance she stated that in her opinion Otto should have installed a proper rain gutter above the entrance and should have moved the handrail closer to the door so it could be reached without taking any steps outside door. She further stated she believed the accident would not have happened if Otto had maintained a proper rain gutter above the steps, and she had previously alerted him to that problem and asked it be fixed but he would not do so. Trulsen stated in her deposition that one had to get completely on the top step and then take about two steps over in order to be able to reach the handrail. She also stated she had complained to Otto that the handrail was loose
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