Merrill v. Jansma

[¶ 1] Sue A. Merrill appeals from a summary judgment dismissing her claims for personal injury resulting from a fall on rental property belonging to Alvina Jansma. She claims the district court erred in ruling that, as a matter of law, Ms. Jansma owed no duty to Ms. Merrill under the Residential Rental Property Act, Wyo. Stat. Ann. § 1-21-1202 (LexisNexis 2001) and no genuine issue of material fact existed under the common law as set forth in Restatement (Second) of Torts § 326 (1965). We reverse and hold the Residential Rental Property Act imposes a duty on landlords to maintain leased premises in a fit and habitable condition. We further hold that this duty establishes the standard of care applicable generally to personal injuries occurring on leased premises- — a standard of reasonable care under the circumstances. Finally, we hold that the statutory duty and the standard arising from it replace the common law rule of landlord immunity and its exceptions.

ISSUES

[¶ 2] Ms. Merrill states the issues as follows:

I. The District Court erred when it held, as a matter of law, that the Residential Rental Property Act, Wyo. Stat. Ann. § 1-21-1201 (LexisNexis 2001), et seq., imposed no duty on Appellee in favor of Appellant under the facts of this case.

II. Material questions of fact existed as to whether § 362, Restatement 2d Torts (1965) applied and imposed a duty on Ap-pellee in favor of Appellant.

[¶3] Ms. Jansma restates the issues as follows:

I. Does the Residential Rental Property Act, W.S. § 1-21-1201, et seq., reverse the Wyoming common law doctrine of landlord immunity by imposing a legal duty upon a landlord that subjects her to negligence liability in the event that her tenant’s invitee suffers injury on the leased premises?

II. Did the district court correctly determine that there is no material fact in dispute that, if proven by Appellant, would bring this case under one of the recognized exceptions to the general rule of landlord immunity?

FACTS

[¶ 4] The facts, viewed in the light most favorable to the party opposing the summary judgment motion, are that on February 19, 2000, Ms. Merrill injured her right shoulder when she fell as she was ascending the front steps leading to the porch and front door of the mobile home her daughter, Sherri Pritch-ard, rented from Ms. Jansma. The step became loose during the time Ms. Pritchard rented the home. Prior to the fall, Ms. Pritchard attempted to repair the step by securing it with nails. When that failed, she informed the manager of the property that the step was loose. The manager suggested Ms. Pritchard try using screws to secure the step. Ms. Pritchard told the manager she did not have a screw gun. The manager had one and said she would screw the step into place. Subsequently, and without Ms. Pritchard’s knowledge, the manager attempted to repair the step. Apparently, that effort was unsuccessful and Ms. Merrill fell when the step separated from the porch as she stepped on it. -

[¶ 5] Ms. Merrill filed a negligence claim against Ms. Jansma as the owner of the property alleging she knew or reasonably should have known the step was dangerous and failed to exercise reasonable care to alleviate the danger. She further alleged Ms. Jansma owed a duty of care to her as a visitor to the rental property. She sought damages for the injuries she sustained in the fall from the step, including medical expenses, lost earnings and damages for emotional distress and pain and suffering. Ms. Jansma answered the complaint and then filed a motion for summary judgment, claiming she owed no legal duty to Ms. Merrill. The district court granted Ms. Jansma’s motion for summary judgment, holding that, as a matter of law, she had no legal duty to Ms. Merrill under either the Residential Rental Property Act or the common law as set forth in § 362 of the Restatement.

*274 STANDARD OF REVIEW

[¶ 6] In reviewing summary judgment orders, we have the same duty, review the same materials, and follow the same standards as the district court. Hoblyn v. Johnson, 2002 WY 152, ¶ 11, 55 P.3d 1219, ¶ 11 (Wyo.2002). The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. Id. A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. Board of County Commissioners of Teton County v. Crow, 2003 WY 40, ¶ 17, 65 P.3d 720, ¶ 17 (Wyo.2003).

[¶ 7] We view the record from the standpoint most favorable to the party opposing the motion, giving to that party all favorable inferences that fairly may be drawn from the record. Id. We will uphold summary judgment on the basis of any proper legal theory appearing in the record. Id. We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court’s ruling. Goglio v. Star Valley Ranch Association, 2002 WY 94, ¶ 12, 48 P.3d 1072, ¶ 12 (Wyo.2002). Summary judgment is not favored in negligence eases. Roitz v. Kidman, 913 P.2d 431, 432 (Wyo.1996). We, therefore, scrutinize orders granting summary judgment more carefully in such cases. Id.

DISCUSSION

2. Residential Rental Property Act

[¶ 8] In its summary judgment order, the district court held Ms. Jansma owed no duty to Ms. Merrill under the Residential Rental Property Act, Wyo. Stat. Ann. § 1-21-1201, et seq. (LexisNexis 2001) because Ms. Merrill failed to give Ms. Jansma written notice of the loose step as required by the act. Ms. Merrill contends this holding is incorrect in two respects. First, she cites § l-21-1202(a) of the act, which states: “[e]ach owner and his agent renting or leasing a residential rental unit shall maintain that unit in a safe and sanitary condition fit for human habitation.” Ms. Merrill asserts that, by the enactment of this provision, the legislature abrogated the common law rule of landlord immunity and imposed a broad affirmative duty upon landlords and their agents to maintain rental properties in a reasonably safe condition. She claims Ms. Jansma breached this duty by failing to maintain, or have her manager maintain, the steps leading up to Ms. Pritchard’s home. Ms. Merrill also contends the district court erred in holding that her failure to give written notice under § 1-21-1206 precludes her claim. She asserts the notice provision applies only when a landlord disputes a tenant’s request for repair, which did not occur here.

[¶ 9] Citing the rule that legislative abrogation or modification of the common law will not be presumed absent explicit, unambiguous language demonstrating that intent, Ms. Jansma argues the Residential Rental Property Act does not abrogate the common law rule of landlord immunity. Ms. Jansma asserts the act does not explicitly repeal the common law and, when read as a whole, does not support the conclusion that the legislature intended to impose a general duty requiring a landlord to maintain rental premises, including steps, on a single-dwelling unit. Rather, she contends, it is clear the legislature intended only to set out minimum health and safety requirements — operational electricity, heating, plumbing and hot and cold water — and procedural mechanisms for enforcing them. In the event we find the legislature intended to abrogate the common law rule of immunity, Ms. Jansma argues alternatively that Ms. Pritchard did not comply with the notice requirements of the Residential Rental Property Act and Ms. Merrill’s claim is precluded for that reason. We consider first the question of whether the act imposes a duty on landlords supplanting the common law rule of immunity. In addressing that issue, we find it helpful to review the development of landlord-tenant law from a historical perspective.

a. Historical Development

[¶ 10] For centuries, landlord immunity was the rule in landlord-tenant law.

*275 Since 16th century feudal England a lease has been considered a conveyance of an interest in land, carrying with it the doctrine of caveat emptor.

The lessor impliedly covenanted that he had the legal right to transfer possession and that he would leave the tenant in “quiet enjoyment of the leasehold,” but he did not impliedly warrant as to the habitability or fitness of the premises for any particular use.

As a lessee of real property a 16th century tenant in England was expected to inspect the premises prior to the “sale,” and in the absence of express covenants to the contrary, he took possession with whatever defects existed at the time of the lease. Nor did the landlord have an implied responsibility to maintain the leasehold in a reasonable state of repair during the term of the lease....

It was in this setting that the principle of tort immunity for the landlord developed ... as part and parcel of the concept that a lease is primarily a conveyance of real estate. The landlord was not liable to the tenant or third persons for personal injury or personal property damage caused by a defect present at the transfer of possession or by defects arising during the term of the leasehold.

Old Town Development Company v. Langford, 349 N.E.2d 744, 753-64 (Ind.App.1976) (footnotes omitted).

[¶ 11] With the transition from a mostly rural to a more urban society, however, the rule of landlord immunity gave way slightly to some judicially recognized exceptions.

During and following the Industrial Revolution, the population migration from rural to urban areas accentuated the importance of the structural improvements on the premises, and a corresponding decrease in the significance of the land itself. Leases often developed into complex transactions. The typical lease began to look more like a contract than a conveyance of real estate, often containing numerous express covenants alien to common law transfers of nonfreehold estates.

Accompanying this migration was an ever-increasing distaste for the continued application of caveat emptor, or caveat lessee, to urban leases of both commercial and residential property. Modern and more complex buildings brought added maintenance costs. At the same time tenants were less able to cope with the machinery and sophisticated systems in dwellings and commercial structures, which they had neither the expertise nor the funds to repair. But caveat lessee did not change, and remained firmly entrenched in both English and American common law protecting the lessor from liability for personal injury or personal property damage arising out of defective conditions on the leased premises.

While the cloak of immunity remained draped over the landlord as social and economic conditions changed, certain judicial exceptions were gradually, and grudgingly, carved-out “when such action could be harmonized with the rules governing the liability of a vendor of real property, or when the characterization of a lease as a conveyance was so contrary to social and economic realities that justice required the creation of an exception to the general rule.” Love, Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence or Strict Liability?, 1975 Wis.L.Rev. 19, 50 (1975).

Id. at 754-55. Five exceptions to the rule of landlord immunity emerged.

A landlord could be held hable in tort for (1) defects in premises leased for admission of the public; (2) a breach of a covenant to repair; (3) negligent repairs; (4) defects in “common areas” under the landlord’s control; and more recently (5) defects constituting a violation of a provision of the applicable building or housing code.

Id. 1

[¶ 12] Despite, or perhaps in part because of the exceptions, there was by the 1960s *276 increasing “discontent with the appearance of unfairness in the landlord’s general immunity from tort liability, and with the artificiality and increasing complexity of the various exceptions to this seemingly archaic rule of nonliability.” W.L. Prosser & W.P. Keeton, Prosser & Keeton on Torts, 446 (5th ed.1984). As a result, some courts began to re-examine landlord tenant law. 2 One of the first of these was the Wisconsin Supreme Court, which in Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961), adopted a rule that residential leases between landlord and tenant carried with them an implied warranty of habitability and fitness — that is, a promise that the premises would be fit for human habitation. In reaching this result, the court said:

[T]he frame of reference in which the old common-law rule operated has changed.

Legislation and administrative rules, such as the safeplace statute, building codes, and health regulations, all impose certain duties on a property owner with respect to the condition of his premises. Thus, the legislature has made a policy judgment — that it is socially (and politically) desirable to impose these duties on a property owner — which has rendered the old common-law rule obsolete.

Id. at 595, 111 N.W.2d 409. Pines was followed by Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969) and Javins v. First National Realty Corporation, 428 F.2d 1071 (D.C.Cir.1970). The latter decision is frequently cited as the first all-out assault on traditional concepts of landlord-tenant law. Old Town, 349 N.E.2d at 756; Olin L. Browder, The Taming of a Duty —The Tort Liability of Landlords, 81 Michigan Law Review 99, 109 (1982). Like the court in Old Town, the courts in Lemle and Javins recognized that an implied warranty of habitability applied to rental property. Since then a number of other courts have followed the lead of Pines and its progeny. 3

[¶ 13] In addition to the courts that rejected the common law in favor of recognition of an implied warranty of habitability, other courts cast aside landlord immunity on the basis of general negligence principles. In Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, 530 (1973), the court said:

General principles of tort law ordinarily impose liability upon persons for injuries caused by their failure to exercise reasonable care under all the circumstances. A person is generally negligent for exposing another to an unreasonable risk of harm which foreseeably results in an injury. But, except in certain instances, landlords are immune from these simple rules of reasonable conduct which govern other persons in their daily activities. This “quasisovereignty of the landowner” (2 F. Harper and F. James, Law of Torts 1495 (1956)) finds its source in agrarian England of the dark ages. Due to the untoward favoritism of the law for landlords, it has been justly stated that “the law in this area is a scandal.” Quinn and Phillips, The Law of Landlord Tenant: A Critical Evaluation of the Past with Guidelines for the Future, 38 Ford L.Rev. 225 (1969). “For decades the courts persistently refused to pierce the hardened wall that preserved the landlord-tenant relationship in its agrarian state.” Note, 59 Geo. L.J. 1153, 1163 (1971). But courts and legislatures alike are beginning to reevaluate the rigid rules of landlord-tenant law in light of current needs and principles of law from related areas. “Justifiable dissatisfaction *277 with the rule” of landlord tort immunity (2 F. Harper and F. James, supra at 1510) compels its reevaluation....

On this basis, the court discarded the common law rule and held:

[h]enceforth, landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm. A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. We think this basic principle of responsibility for landlords as for others “best expresses the principles of justice and reasonableness upon which our law of torts is founded.” The questions of control, hidden defects and common or public use, which formerly had to be established as a prerequisite to even considering the negligence of a landlord, will now be relevant only inasmuch as they bear on the basic tort issues such as the foreseeability and unreasonableness of the particular risk of harm.

Id. at 534 (some citations omitted). Citing the New Hampshire court’s decision in Sargent, the Nevada Supreme Court likewise removed the landlord’s cloak of immunity in Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290, 1293 (1985), holding:

In accord with those courts which have discerned no sound policy reason in the modem social context for retaining the ancient exception for landlords or property owners from the general application of the basic principles of tort law, we find no basis for excusing the landlord in this case from the requirement that she defend the allegation that she has, through her negligence, been the cause of foreseeable injuries to the plaintiff for which she should assume liability.

[¶ 14] As mentioned in Sargent, the reevaluation of landlord-tenant law has not been confined to the judiciary. In the past thirty years, legislatures in nearly every state have enacted statutes imposing new duties on landlords. The Uniform Residential Landlord and Tenant Act (URLTA) likely played a role in this development and served as a model for similar legislation, with varying degrees of amendment, in many states. 7B Uniform Laws Annotated (West Group 2000), Uniform Residential Landlord and Tenant Act, 527 (1972); Browder, supra, at 113. Although the URLTA differs in many respects from Wyoming’s Residential Rental Property Act, both acts contain provisions requiring landlords to maintain the premises in a fit, safe and habitable condition. Both acts are also illustrative of the overwhelming movement nationwide away from landlord immunity and toward landlord responsibility for known dangers and those which ought to be known with the exercise of reasonable care. For that reason, we briefly discuss the URLTA.

[¶ 15] The purposes of the URLTA as stated in § 1.102 are generally to modernize the law and the rights and obligations of landlords and tenants, encourage both lessor and lessee to maintain rental premises, and make uniform the laws among those states that adopt it. Uniform Laws Annotated, supra, at 534. Among other things, the URL-TA provides:

§ 2.104. [Landlord to Maintain Premises].

(a) A landlord shall

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(2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;

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(4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances ... supplied or required to be supplied by him[.]

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Id. at 566. Section 4.101(a) of the URLTA authorizes the tenant to provide written notice to a landlord who is not in noncompliance with the preceding section that the lease will terminate if the condition is not corrected. Id. at 609. Section 4.101(b) allows the tenant to recover actual damages for the landlord’s *278 noncompliance in addition to the remedies available under § 4.101(a). Section 1.105 also provides for the recovery of appropriate damages by the aggrieved party and the right to bring an action to enforce the rights and obligations declared by the act. Id. at 537. As of 2001, fifteen states had adopted the URLTA in whole or in part. 4

[¶ 16] Altogether, over forty states have discarded the common law rule of landlord immunity and recognize a duty in some form, either through legislation, judicial declaration, or both. 5 Among the states with legislation addressing the landlord-tenant relationship, the statutory language varies considerably, with some following the example of the URLTA quite closely and others adopting their own version of landlord tenant statutory law. Just as the statutory language varies, the approaches taken by the courts differ in deciding whether the statute creates a duty and, if so, what the legal basis for the duty is and what remedies are available for breach of the duty. As noted, although there is considerable variation from state to state in the statutory language employed and judicial interpretation of that language, nearly every court is in agreement that landlords in the modern era have duties they did not have at common law.

[¶ 17] In Thompson v. Crownover, 259 Ga. 126, 381 S.E.2d 283, 284-85 (1989), for example, after noting the Georgia legislature’s early rejection of the common law in favor of a duty of reasonable care, the court said:

The public policy of this state supports the position advanced by The Restatement of Law 2d, Property, § 17.6:

A landlord should be subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenants by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:

(1) an implied warranty of habitability; or

(2) a duty created by statute or administrative regulation.

In Young v. Garwacki, 380 Mass. 162, 402 N.E.2d 1045, 1049 (1980), the Massachusetts Supreme Judicial Court likewise was persuaded the common law rule had outlived its usefulness:

Today, we do away with the ancient law that bars a tenant’s guest from recovering compensation from a landlord for injuries caused by negligent maintenance of areas rented to the tenant. Like the other rules based on status, this rule has prevented a whole class of people from raising the overriding issue: whether the landlord acted reasonably under the circumstances. The practical result of this archaic rule has been to discourage repairs of rented premises. In cases like the one before us, a landlord with knowledge of a defect has less incentive to repair it. And the tenant, who often has a short-term lease, limited funds, and limited experience dealing with such defects, will not be inclined to pay for expensive work on a place he will soon be leaving. Thus, the defect may go unre-paired until an unsuspecting plaintiff finds herself with a lawsuit that care could have prevented.

The Massachusetts court held a landlord is required to exercise reasonable care to correct unsafe conditions of which he has notice and if he fails to make the repairs, the tenant or any person rightfully on the premises may bring a tort action against him for any injuries sustained. The court found this result *279 to be consistent with the state statute governing landlord-tenant relations. 6

[¶ 18] Similarly, in Newton v. Magill, 872 P.2d 1213 (Alaska 1994), the Alaska Supreme Court held a landlord has a duty of reasonable care in light of all the circumstances. The court stated:

We now further expand the landlord’s duty of care in aligning Alaska with the jurisdictions following Sargent, and thus reject the traditional rule of landlord immunity. ... We do this because it would be inconsistent with a landlord’s continuing duty to repair premises imposed under the URLTA to exempt from tort liability a landlord who fails in this duty. The legislature by adopting the URLTA has accepted the policy reasons on which the warranty of habitability is based. These are the need for safe and adequate housing, recognition of the inability of many tenants to make repairs, and of their financial disincentives for doing so, since the value of permanent repairs will not by fully realized by a short-term occupant. The traditional rule of landlord tort immunity cannot be squared with these policies.

Id. at 1217. The court further stated:

Our rejection of the general rule of landlord immunity does not make landlords hable as insurers. Their duty is to use reasonable care to discover and remedy conditions which present an unreasonable risk of harm under the circumstances. Nor does our ruling mean that questions as to whether a dangerous condition existed in an area occupied solely by the tenant or in a common area, or whether the condition was apparent or hidden, are irrelevant. These are circumstances which must be accounted for in customary negligence analysis. They may pertain to the reasonableness of the landlord’s or the tenant’s conduct and to the foreseeability and magnitude of the risk. In particular, a landlord ordinarily gives up the right to enter premises under the exclusive control of the tenant without the tenant’s permission. The landlord’s ability to inspect or repair tenant areas is therefore limited. In such cases, “a landlord should not be liable in negligence unless he knew or reasonably should have know of the defect and had a reasonable opportunity to repair it.” [Garwacki, supra.]

Id. at 1218.

[¶ 19] In accord with these cases, the court in New Haverford Partnership v. Stroot, 772 A.2d 792 (Del.2001) held:

[T]he Landlord Tenant Code imposes a duty on,landlords to maintain the leased premises in a safe, sanitary condition and that an injured tenant may recover for personal injuries sustained as a result of landlord’s negligent failure to do so.

In reaching this result, the court said:

[T]here is nothing to suggest that, in undertaking to regulate landlord/tenant relations, the General Assembly also intended to eliminate a tenant’s ability to bring tort claims against a landlord. Our courts have long recognized that such claims remain unaffected by the Landlord Tenant Code.

Id. at 798. Like the courts in Georgia, Massachusetts, Alaska and Delaware, courts in the following states have applied negligence principles to landlord tenant relations on the basis of either legislative or judicial pronouncement: Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27, 31 (1963); Stephens v. *280 Stearns, 106 Idaho 249, 678 P.2d 41 (1984); Brichacek v. Hiskey, 401 N.W.2d 44, 47 (Iowa 1987); Jackson v. Wood, 11 Kan.App.2d 478, 726 P.2d 796 (1986); Lenz v. Ridgewood Associates, 55 N.C.App. 115, 284 S.E.2d 702 (1981); Shump v. First Continental-Robinwood Associates, 71 Ohio St.3d 414, 644 N.E.2d 291 (1994); Errico v. LaMountain, 713 A.2d 791 (R.I.1998); Pryor v. Northwest Apartments, 321 S.C. 524, 469 S.E.2d 630 (Ct.App.1996); Hall v. Warren, 632 P.2d 848 (Utah 1981); Favreau v. Miller, 156 Vt. 222, 591 A.2d 68 (1991); Marple v. Papermill Park Corp., 30 Va. Cir. 154 (1993); Antwaun v. Heritage Mutual Insurance Co., 228 Wis.2d 44, 596 N.W.2d 456 (1999).

[¶ 20] Even in states sometimes cited as having neither a statute nor court decision imposing liability on landlords, 7 the law has evolved away from landlord immunity. In Colorado, for example, where there is no legislation similar to the URLTA or Wyoming’s Residential Rental Property Act, the courts have allowed recovery by injured persons for a landlord’s failure to use reasonable care on the basis of the landowner liability statutes. C.R.S. § 13-21-115 (1993 Cum. Supp.); Maes v. Lakeview Associates, 892 P.2d 375 (Colo.App.1994).

[¶ 21] In contrast to the forty-plus states that have done away with landlord immunity, a few states have retained the common law except as explicitly provided in their particular landlord-tenant act. Nebraska, for example, enacted the URLTA but has since substantially modified it, including adding a provision that states: “The obligations imposed by this section are not intended to change existing tort law in the state.” Neb. Rev.Stat. § 76-1419 (1974). The Nebraska Supreme Court has interpreted this provision to mean that the act does not change the common law, thus a landlord owes no duty to a tenant to repair leased premises absent a contractual provision to that effect or retention of control of the area where an injury occurs. Tighe v. Cedar Laum, Inc., 11 Neb.App. 250, 649 N.W.2d 520 (2002). It bears repeating, however, that Nebraska is one of only a very few states that adheres strictly to the common law “no duty” rule.

[¶ 22] Unlike Nebraska, other states that continue to apply the common law allow personal injury claims against a landlord on the basis of various legal theories. In Ohio, for example, despite the courts’ continued adherence to the common-law rule, a landlord may be liable in tort for failing to maintain leased premises in a fit and habitable condition as required under Ohio’s Landlords and Tenants Act. Ohio Rev.Code Ann. 5321.04 (1974); Shump, 644 N.E.2d at 296. The Ohio statute is viewed as an exception to a landlord’s common-law immunity and as expanding the duties a landlord owes to those using rental property. Id.

[¶ 23] Along similar lines, the Oregon Supreme Court has held that the common law exists alongside the Oregon Residential Landlord and Tenant Act (ORLTA). Davis v. Campbell, 327 Or. 584, 965 P.2d 1017,1021 (1998). Thus, a tenant may bring a statutory claim under the ORLTA, a common-law negligence claim, or both. Id. With respect to the statutory claim, the court held the fact that the legislature did not incorporate elements of common-law negligence into the statute indicated its intent that a tenants’ remedies under the act not be conditioned upon proof of such elements (thus, the court would not read into the act a requirement that the landlord have actual or constructive knowledge of an unsafe condition). Id. at 1019. Of further interest in terms of the issue before us, the Oregon Supreme Court has broadened the standard applicable to common-law negligence claims by rejecting previously adopted principles of obvious danger and actual or constructive knowledge in favor of more general comparative negligence principles. Coulter Property Management, Inc. v. James, 328 Or. 164, 970 P.2d 209 (1998). Citing the rule that the court would “reconsider a court-created rule or doctrine if ‘surrounding statutory law or regulations have altered some essential legal element assumed in the earlier *281 ease,’ ” the court held that with the adoption of comparative negligence the previously applied principles of obvious danger and actual or constructive knowledge contained in Restatement, supra, no longer accurately stated the common law of Oregon, thus altering an essential legal element assumed at the time the Restatement was adopted and warranting reconsideration of the common law rule.

[¶ 24] The Washington courts also continue to recognize common law principles governing personal injury claims arising out of the landlord-tenant relationship while simultaneously allowing claims for personal injuries by tenants based upon the Washington Residential Landlord-Tenant Act. Tucker v. Hayford, 118 Wash.App. 246, 75 P.3d 980 (2003). In reaching this result, the court has emphasized the provision of the Washington act taken from the URLTA authorizing the tenant to bring an action in an appropriate court for any remedy provided under the act or otherwise provided by law. Id. at 985.

[¶ 25] As this discussion illustrates, landlord-tenant law has evolved considerably from the days when the common law rule was established. Today, the vast majority of states recognize that a landlord has a duty to maintain rental property in a safe, habitable condition. With this overview in mind, we turn to a discussion of the law in Wyoming.

b. The law in Wyoming

[¶26] Despite the overwhelming movement in other states to replace the rule of landlord immunity, Wyoming up to now has continued to apply the common law rule-absent a contractual provision to repair, a landlord generally owes no duty to a tenant or a tenant’s guests for dangerous or defective conditions of the premises. Hefferin v. Scott Realty Co., 71 Wyo. 114, 254 P.2d 194, 197 (1953). The only exceptions we have recognized to this general rule are where:

1. Hidden or latently dangerous conditions known to the landlord and unknown to the tenant cause an injury.

2. The premises are leased for public use and a member of the public is injured.

3. An injury occurs on a part of the premises retained under the control of the landlord but open to the tenant’s use.

4. The landlord contracts to repair the premises.

5. The landlord negligently makes repairs.

Ortega v. Flaim, 902 P.2d 199, 202 (Wyo.1995). In all but the five limited cir