Brief Fact Summary. Plaintiff was injured when tenant’s balcony rail collapsed while she was helping tenant move. Plaintiff sued landlord for landlord’s failure to repair the balcony. Judgment was entered for defendant landlord based on a landlord’s general immunity to liability from tenants and visitors.
Synopsis of Rule of Law. Under Wisconsin law, a landlord owes to his tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care.
Issue. Did the trial court err in failing to instruct the jury that Defendant owed Mrs. Pagelsdorf a duty to exercise ordinary care in maintaining the premises?
Held. Yes. Judgment reversed and cause remanded.
* This court previously abolished the distinction between licensees and invitees [Antoniewicz v. Reszcynski, 70 Wis.2d 836, 854-55, 236 N.W.2d 1, 10 (1975)]. However, the landlord is generally not liable to tenants unless one of the exceptions applies and no exception applies in this case.
* Following the traditional rule, the Plaintiff would not be entitled to an instruction that Defendant owed Mrs. Pagelsdorf a duty of ordinary care. The Court believes that public policy calls for abandonment of the previous rule and adoption of a standard that landlords are under a duty to exercise ordinary care in the maintenance of the premises.
* The policies discussed in Antoniewicz support, in the present case, the Court’s decision to abandon the landlord’s cloak of immunity to tenants and visitors. The modern day apartment lease is viewed as a contract rather than a conveyance. The Court has implied a warranty of habitability in such contracts. It would be anomalous to apply a warranty of habitability to landlords, yet immunize them from liability from injuries resulting from a failure to comply with such a warranty.
Discussion. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. Generally, the only recourse for a landlord’s failure to comply with this warranty is a right to withhold rent until repairs are made.