Jack Nelson Jones Professional Association
April 24-30, 2017
Hurd v. Hurt, 2017 Ark. App. 228 (April 12, 2017)
This appeal comes from the Crittenden County Circuit Court, honorable Thomas Fowler presiding. This case concerns the assumption of a duty to repair a leased home.
According to Hurd, in January or February 2010, he moved into a mobile home at the Broadway Trailer Park that he leased from Bob Hurt. There was no written lease agreement. Hurd stated that while he lived there, he had asked Hurt to make repairs to the toilet, stove, air conditioner, and shower. Hurd testified that he sometimes saw Bob Hurt make the repairs and at other times the repairs were made while Hurd was at work.
Hurd further testified that when he first moved into the home he requested that Bob Hurt repair the refrigerator because it was not cooling properly. When Hurd returned from work, the refrigerator was working. Hurd testified that the refrigerator problem recurred on August 27, 2010. Hurd said that he heard a loud “hysterical” hissing sound. He reported the noise to Hurt, and asked Hurt if the hissing sound could cause an explosion, and Hurt said no. Hurd returned home and turned on the gas stove to light a cigarette. The mobile home exploded, and Hurd was severely burned. The fire marshal later determined that the origin of the fire was the furnace, which was located beside the refrigerator. The flex gas line of the furnace was disconnected, which allowed gas to escape into the mobile home. The gas was ignited when Hurd used the stove.
Hurd filed a negligence suit against Hurt seeking compensatory and punitive damages for the personal injuries he sustained. He alleged that the Hurt failed to maintain the furnace and mobile home in a reasonably safe condition after they had undertaken a duty by their actions to maintain the premises. Hurt contended that he did not own the mobile home and that they did not enter into a written lease or any other agreement with Hurd; therefore, he did not owe a common-law, statutory, or contractual duty to Hurd. In response, Hurd argued that there were material facts in dispute about, among other things, Hurts’ assumption of the duty by his conduct to maintain or repair the mobile home. The circuit court granted summary judgment to Hurt, finding, as a matter of law, Hurt owed no duty to Hurd. Hurd appealed.
On appeal, Hurd argued that the circuit court erroneously entered summary judgment in favor of Hurt based on its finding that they owed no duty to Hurd. The Court first reached the conclusion that Arkansas recognizes the doctrine of caveat lessee, as codified in Arkansas law. Under that doctrine, unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs. The undisputed facts established there was no written lease or proof of any other agreement creating a legal duty on the part of the Hurts to maintain or repair Hurd’s mobile home. The only other means to attach a duty would be through an assumption by conduct of a duty to maintain or repair the leased premises. The Court explained that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.
Hurd cited to Hurst v. Feild, Majewski v. Cantrell, and Thomas v. Stewart, in support of his position that Hurt assumed by conduct the duty to maintain or repair Hurd’s mobile home. In these three cases, the parties did not enter into written lease agreements; however, in each case the landlord/sublessor agreed to make repairs and/or made repairs to the leased premises, and such evidence was held to be sufficient to raise a question of fact to defeat summary judgment on the issue of whether the landlord/sublessor assumed by conduct the duty to make repairs.
The Court stated that the law is well settled that when a landlord undertakes to repair the premises, the landlord is liable for any negligence in making those repairs. Here, Hurd argued that the Hurts assumed by conduct the duty of repairing his refrigerator and that there was a genuine issue of material fact as to whether they made the repairs in a reasonable manner. He argued that in making the repair to the refrigerator, Hurt, or someone on his behalf, “unknowingly disconnected” or “dislodged the flex line during the installation of the Freon,” resulting in an accumulation of gas, which exploded when Hurd turned on his stove. He cited the fire marshal’s investigative report that concluded that the origin of the fire was the gas line running to the furnace, which was “located beside the refrigerator.” He cited his testimony that Hurt, or someone at his direction, put Freon in the refrigerator the day of the explosion and that just minutes before the explosion Hurt said that he had put Freon in the bottom of the refrigerator. Hurt acknowledged that he and Hurd had a conversation about the refrigerator that day.
The Hurts contended that they did not assume by conduct the duty to maintain or repair the gas line to the furnace. They pointed out that no evidence was presented that they had made any repairs or agreed to make repairs to the furnace. They claim that any assumed duty to repair the refrigerator did not extend to a general duty for all repairs, including the furnace gas line, and that the refrigerator repairs were unrelated to the leaking gas line.
Whether these facts demonstrated that Hurt performed the repairs to the refrigerator in a reasonable manner or whether the facts rise to the level of negligence was for the jury to decide. In either case, summary judgment was not appropriate. Accordingly, the Court reversed and remanded.