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Trulsen v. Otto2/20/2002
harm results from a condition of disrepair existing before the lessee has taken possession if the lessor has contracted to keep the property in repair. Long v. Jensen, 522 N.W.2d 621, 623 (Iowa 1994). Trulsen was obviously on the premises with the permission of the lessees, herself and her husband. The fact finder could reasonably find the premises to be unsafe and thus in a condition of disrepair as the result of the handrail being placed in a location where it was difficult and at times dangerous to reach. That condition arose before the Trulesens took possession. For reasons earlier stated the fact finder could find Otto had contracted to keep the property in repair.
We conclude that when the evidence is viewed in the light most favorable to Trulsen and she is allowed every legitimate inference that can be deduced from the record, she has met her burden to set forth specific facts showing there is a genuine issue of material fact. Reasonable minds could differ as to whether Otto was negligent in failing to change the location of the handrail he provided with the premises and whether the location of the handrail was a proximate cause of Trulsen's injuries and damages. We conclude the trial court erred in granting summary judgment on that part of Trulsen's lawsuit which is based on the location of the handrail.
Trulsen also cites cases holding a landlord has a duty to exercise reasonable care to maintain those portions of premises over which the landlord retains control, and those portions of premises over which the landlord and tenant have joint control including areas used in common by one or more tenants, and that such common areas may be either inside or outside. However, the summary judgment record establishes as undisputed fact that the steps and entrance in question were not premises over which Otto retained control or use, and were not premises used in common by other tenants. Therefore, to the extent the trial court's ruling may be seen as addressing retained or joint control as a basis for the existence of a duty on Otto's part, we find no error.
III. SUMMARY AND DISPOSITION
We affirm the grant of summary judgment on the portion of Trulsen's lawsuit based on the absence of a rain gutter and the portion of Trulsen's lawsuit based on the condition (looseness) of the handrail. We reverse the grant of summary judgment on that portion of Trulsen's lawsuit which is based on the location of the handrail, and remand for further proceedings on that part of the lawsuit.
Costs on appeal are taxed one-half to Trulsen and one-half to Otto.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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