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24905 - Fair, et al. v. U.S. of America

Davis Adv. Sh. No. 8
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Rochelle Fair,

Individually and as

Mother and Natural

Guardian of Ashley

Marie Poland, a Minor, Plaintiff,

v.

United States of

America, Defendant.



Opinion No. 24905

Heard December 1, 1998 - Filed February 22, 1999



CERTIFIED QUESTION ANSWERED



James B. Richardson, Jr., of Svalina, Richardson &

Larson, of Columbia; Daniel A. Larson, of Svalina,

Richardson & Larson, of Beaufort; and J. Brent

Kiker, of Kiker & Douds, P.A., of Beaufort, for

plaintiff.



United States Attorney J. Rene Josey, and

Assistant United States Attorney John H. Douglas,

of Charleston, for defendant.





MOORE, A.J.: Plaintiff brought this action in federal district

court to recover for injuries her daughter sustained when she was attacked

by a dog. The attack occurred on another tenant's premises at the Marine

Corps Air Station in Beaufort, South Carolina. We are asked to answer

the following certified question:

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FAIR, et al. v. U.S. of AMERICA





Does the South Carolina Residential Landlord and Tenant Act

overrule Mitchell v. Bazzle, 1 304 S.C. 402, 404 S.E.2d 910 (Ct.

App. 1991), so that a landlord, having actual or constructive

notice of the presence of a dangerous dog on leased premises,

may be responsible for injuries inflicted by that dog upon

another tenant invited upon the premises under § 27-40-

440(a)(2) of that Act?





DISCUSSION



In Mitchell v. Bazzle,1 our Court of Appeals held a landlord is not

liable to a tenant's invitee for injuries inflicted by the tenant's dog.2

Because the Residential Landlord and Tenant Act (RLTA) had not been

enacted at the time the cause of action arose in that case, the Court of

Appeals did not apply it. Plaintiff claims that enactment of RLTA,

specifically subsection (a)(2) of S.C. Code Ann. § 27-40-440 (1991), changed

the common law rule stated in Mitchell v. Bazzle. We disagree.





Section 27-40-440(a)(2) provides "a landlord shall . . . make all

repairs and do whatever is reasonably necessary to put and keep the

premises in a fit and habitable condition." (emphasis added). Other

courts have held this "fit and habitable" provision, which originates from

the Uniform Landlord and Tenant Act, imposes a duty on the landlord

relating only to the physical state of the premises. Newton v. Magill, 872

P.2d 1213 (Alaska 1994); Rodgers v. Rosen, 737 P.2d 562 (Oka. 1987); see

also Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103 (1993)

(implied warranty that premises are habitable and fit for living includes

only structural defects).







Further, S.C. Code Ann. § 27-40-510(2) (1991), another section of the

RLTA, imposes a corresponding duty on the tenant to "keep the dwelling

unit and that part of the premises that he uses reasonably safe and


1 This Court dismissed certiorari as improvidently granted. 306 S.C.

407, 412 S.E.2d 416 (1992).



2 In refusing to find liability, the Court of Appeals declined to adopt the

analysis of a California case, Uccello v. Laudenslayer, 44 Cal. App. 3d 504,

118 Cal. Rptr. 741 (1975). Uccello found as a matter of public policy that a

landlord who has notice and right to control a tenant's possession of a vicious

animal may be liable for injuries to the tenant's invitee caused by the

animal.

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FAIR, et al. v. U.S. of AMERICA





reasonably clean." (emphasis added). As noted by the Newton court in

construing similar provisions based on the Uniform Residential Landlord

and Tenant Act, these separate statutory duties of a landlord and tenant

are reconciled by holding the landlord's duty applies to the inherent

physical qualities of the premises whereas the tenant is responsible for

other safety concerns on the premises. 872 P.2d at 1217.





We construe § 27-40-440(a)(2) in conjunction with § 27-40-510(2) and

hold that under the RLTA, a landlord may be held liable only for defects

relating to the inherent physical state of the leased premises. Accordingly,

we answer the certified question as follows: The "fit and habitable"

provision of the RLTA found in § 27-44-40(a)(2) does not alter the common

law rule that a landlord is not liable to a tenant's invitee for injury caused

by a tenant's dog.



CERTIFIED QUESTION ANSWERED.



FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.

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