This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Rita Okani, et al.,





Darlene G. Loven,



Lew Erickson,




Filed May 11, 2004

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge



Hennepin County District Court

File No. PI 02-020136



Louis D. Bass, Law Offices of Louis D. Bass, P.A., 431 South 7th Street, Suite 2475, Minneapolis, MN 55415; and


John J. Carlson, Carlson & Jones, P.A., 11674 Wayzata Boulevard, Minnetonka, MN 55305 (for appellants)


Michelle D. Christensen, Holly J. Tchida, Murnane, Conlin, White & Brandt, 444 Cedar Street, Suite 1800, St. Paul, MN 55101 (for respondent Darlene Loven)


Lew Erickson, 718 129th Avenue, Blaine, MN 55434-3250 (pro se respondent Lew Erickson)




            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Rita Okani and her husband Lawrence Okani challenge the district court’s grant of summary judgment to respondents on the grounds that (1) respondent Darlene Loven had a duty to protect appellants from the dangers of the steep stairway; (2) Loven’s conduct constituted breach of a statute and is negligence per se, (3) the removal of the handrail was not a superseding, intervening cause; (4) the appellants did not assume the risk by continuing to use the stairs without a handrail; and (5) the exculpatory language in the residential lease is invalid as contrary to public policy.  Because we agree with the district court that Loven’s conduct is not negligence per se, but disagree with the district court’s determination that there are no genuine issues of material fact as to common-law negligence, we affirm in part, reverse in part, and remand.


            Appellants Rita Okani and Lawrence Okani entered into a residential lease agreement with respondent Darlene Loven whereby appellants rented a house owned by Loven and maintained by respondent Lew Erickson.  An exculpatory clause in the lease provided that the landlord would not be liable for any damages or injury to the tenant.  In September 1999, the City of Robbinsdale inspected the property and noted a loose handrail on the steps leading to the basement.  After the housing inspection, Erickson tightened the screws through the sheetrock and into the studs, making the handrail firm again.  Erickson contends that there was no damage to the sheetrock at that time, and therefore no repairs were made to the sheetrock.  Lawrence claims that he watched Erickson attempt to tighten the handrail brackets and observed that the screws were not completely tight.  After the repairs were made, the city re-inspected the property and renewed Loven’s rental-dwelling license.

            Between September 1999 and March 2001, Erickson claims that despite his several visits to the property for repairs, he was never made aware of any problems with the handrail.  Erickson asserts that he used the handrail several times, but did not find it to be loose.  Both appellants testified that the handrail became loose after Erickson’s repair and that Lawrence tried to tighten the handrail screws several times.  Both appellants also admit that they continued to use the handrail when they used the stairs, even when it was loose.  The parties dispute whether Loven was ever notified of the loose condition of the handrail.

            Sometime after Erickson’s September 1999 handrail repair, Rita slipped and fell down the basement stairs.  As a result of the fall, the handrail came partially out of the wall.  Believing the handrail to be unreliable, Rita asked her husband to remove the railing, and he did.  Appellants claim that they called Loven that day, telling her of Rita’s fall and their decision to remove the handrail.  Lawrence claims that he told Loven that the situation was dangerous and that his wife was almost injured in the fall.  According to Lawrence, Loven responded by telling him that Erickson would come over and take care of the handrail.  Rita asserts that she called Loven to complain of the problem at least twice after they removed the handrail.  Rita also asserts that Loven was physically shown that the handrail was still off the stairway in the fall of 2000.  Loven, however, testified that appellants never told her about problems with the handrail until after Rita Okani’s fall in 2001.  Loven admits that she physically inspected the property in the fall of 2000, but denies that she knew that the handrail was off the wall.

            On March 30, 2001, Rita attempted to walk down the basement stairs while carrying her small child.  She used a new method she devised to go down the stairs, which entailed leaning her right shoulder against the wall to aid in her balance.  Halfway down the stairs, she slipped and fell, sustaining a fractured ankle.

            Appellants sued respondents, alleging that respondents failed to properly maintain the handrail, were negligent in the repairs of the handrail, and that as a result of this negligence, respondents caused injury to appellants.  Respondents moved for summary judgment.  The district court granted respondents’ motion, concluding that no reasonable person could find respondents negligent, that appellants’ removal of the handrail was a superseding, intervening cause of appellants’ injuries, and that appellants do not have a claim for negligence per se under Minn. Stat. § 504B.161 (2002).  This appeal follows.


            On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A motion for summary judgment shall be granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03; Asmus v. Ourada, 410 N.W.2d 432, 434 (Minn. App. 1987).  “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

            “A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  Thus, to survive summary judgment, appellants must establish a prima facie claim of negligence.  Id.  The elements of negligence are “(1) duty; (2) breach of that duty; (3) that the breach of duty be the proximate cause of plaintiff’s injury; and (4) that plaintiff did in fact suffer injury.”  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  A genuine issue of material fact exists when the nonmoving party presents evidence that creates doubt as to a factual issue that is “sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.

            The existence of a legal duty is a matter of law that this court reviews de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).  Statutory interpretation is also a question of law that is reviewed de novo.  Am. Tower v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).

1.         Common-Law Negligence

            Appellants argue that the district court erred in finding that Loven had no duty to protect them from the steep stairwell.  In Minnesota, the courts have been reluctant to hold landlords liable for injuries tenants receive on leased premises:

            At common law, a landlord was not liable to a tenant for any damage caused by defective conditions existing at the time the premises were leased.  Today, however, there are several recognized exceptions to this general rule: (1) where there is a hidden dangerous condition on the premises of which the landlord is aware but the tenant is not; (2) where the land is leased for purposes involving admission to the public; (3) where the premises are still in control of the landlord; and (4) where the landlord negligently repairs the premises.


Oakland v. Stenlund, 420 N.W.2d 248, 251 (Minn. App. 1988), review denied (Minn. Apr. 20, 1988).  The latter exception is at issue here.

            A landlord owes a duty of care to a tenant when the landlord undertakes to make repairs to the premises after the lease begins.  Canada By & Through Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn. 1997).  Appellants assert that respondents were negligent because they failed to repair the handrail in a proper manner after undertaking the repair.  Respondents argue that there is no evidence that any repair made by respondents was performed negligently, asserting that Erickson made the minor repair, which was re-inspected and approved by the city as required, resulting in the renewal of Loven’s rental-dwelling license.  Appellants contend that respondents’ duty to protect them from the risk posed by the steep stairs arose after the handrail had been removed because Loven knew that the handrail was off and because she stated on more than one occasion that she would have the handrail fixed. 

            Respondents contend that they owed no duty to protect appellants after the handrail was removed because (1) they did not know that it had been removed, and (2) the dangers were obvious to appellants.  In Minnesota, the general rule is that a landlord who has not agreed to repair the leased premises is not liable to his tenant for injuries sustained as the result of an obvious defect.  Wood v. Prudential Ins. Co. of Am., 212 Minn. 551, 554, 4 N.W.2d 617, 618 (1942) (emphasis added).

            Here, appellants have presented evidence that there is a fact question as to whether the respondents knew that the handrail had been removed and that Loven agreed to repair the handrail after it was removed.  Appellants testified that they called Loven on the day of Rita’s initial fall, notifying Loven of the fall, the dangerous condition of the stairs, and that they were forced to remove the handrail.  Second, Lawrence testified that Loven responded by telling him that Erickson would come over and take care of the handrail.  Third, Rita testified that she called Loven at least twice after the handrail was removed complaining of the problem.  And fourth, Rita also asserts that Loven was physically shown that the handrail was still off the stairway in the fall of 2000.  It appears as though the district court simply discounted the testimony of the appellants.  But after viewing the evidence in the light most favorable to appellants, the record reflects that appellants presented substantial evidence showing a genuine issue of material fact as to whether the landlord agreed to repair the handrail, and therefore owed a duty to appellants to repair the removed handrail in a proper manner.  Because a material credibility determination is still at issue, neither obviousness nor duty can be determined by summary judgment.  Therefore, the district court erred in granting summary judgment as to the common-law negligence claim.

2.         Negligence Per Se

            Appellants assert that a claim of negligence per se exists because the absence of a railing on the basement stairs violated Robbinsdale, Minn., City Code § 425.19, subd. 2 (2002), and Minn. Stat. § 504B.161, subd. 1(3) (2002).[1]  Under Minnesota law, negligence per se is a form of ordinary negligence that results from violation of a statute and may exist when the reasonable-person standard is supplanted by a standard of care established by the legislature.  Seim v. Garavalia, 306 N.W.2d 806, 610 (Minn. 1981).  “[B]reach of a statute gives rise to negligence per se if the persons harmed by the violation are within the intended protection of the statute, and the harm suffered is of the type the legislation was intended to prevent.”  Bills v. Willow Run I Apartments, 547 N.W.2d 693, 694 (Minn. 1996) (emphasis omitted). 

            The language in Minn. Stat. § 504B.161 (2002) was devised to allow tenants a defense to a landlord’s unlawful detainer action when the landlord has allowed the leasehold premises to deteriorate to the point of being uninhabitable.  The claim that this statutorily required language gives rise to a cause of action for injury on the leased premises, or otherwise expands the landlord’s premises liability beyond that previously set forth in the caselaw, has been rejected:

            The legislative objective in enacting the implied covenants of habitability is clearly to assure adequate and tenantable housing within the state.  That objective is promoted by permitting breach of the statutory covenants to be asserted as a defense in unlawful detainer actions. . . .


            It seems clear that the legislature did not intend to alter a landlord’s tort liability but only to require a landlord to covenant to keep leased premises in reasonable repair, fit for their intended use and maintained in compliance with applicable health and safety laws. . . .


            . . . .


But [the statutory provisions] do not appear to extend liability of a landlord to money damages for injuries received by a tenant as a result of unknown defect in the rented premises.


Meyer v. Parkin, 350 N.W.2d 435, 438 (Minn. App. 1984) (quotation omitted), review denied (Minn. Sept. 12, 1984).  Therefore, the district court was correct in concluding that Minn. Stat. § 504B.161 does not create liability for respondents in this case.

3.         Superseding, Intervening Cause

            Appellants contend that the district court erred in concluding that even if respondents were negligent, appellants’ acts of making repairs to and removing the handrail from the stairs constitute a superseding, intervening cause of any alleged damages or injuries.  A superseding cause is “an act of plaintiff or of a third person in no way caused by the defendant’s negligence . . . occurring after defendant’s negligent act or omission and operating as an independent force to produce the injury.”  Hafner v. Iverson, 343 N.W.2d 634, 637 (Minn. 1984) (emphasis in original).  The four elements essential to this defense are that (1) the harmful effects must have occurred after the original negligence; (2) it must not have been brought about by the original negligence; (3) it must bring about a result unlike that which was contemplated by the original negligence, and (4) it must not have been reasonably foreseeable to the original wrongdoer.  Id.

            Here, appellants presented evidence raising genuine issues of material fact as to both causation and foreseeability.  Appellants testified that the respondents never properly tightened the handrail and that the screws holding the handrail brackets to the wall continued to come loose.  Appellants claim that the handrail was removed because of Erickson’s improper repairs and that Rita fell because the handrail was removed.  Appellants assert that, had a handrail been properly in place, Rita would not have fallen.  These are all facts in dispute.

            As to the element of foreseeability, respondents assert that falling in the manner in which Rita did, using her shoulder to guide her in the absence of a handrail, was not a foreseeable consequence.  But appellants testified that both respondents knew of appellants’ removal of the handrail and were aware that the stairs were steep and dangerous.  Appellants also contend that Loven knew of Rita’s earlier fall on the stairs.  In addition, appellants claim that Loven stated that she would have Erickson fix the handrail.  If respondents in fact knew of the stairs’ steepness and the handrail removal, Rita’s fall may have been a foreseeable consequence.  Because issues of material fact are still unresolved as to the essential elements of a superseding-intervening-cause defense, the district court erred in concluding that appellants’ acts of repairing and removing the handrail constituted a superseding, intervening cause.

Viewing the facts in the light most favorable to appellants, genuine issues of material fact sufficient to survive summary judgment exist with respect to the common-law negligence claim and the superseding, intervening defense.  Because credibility determinations are necessary at this point to determine the viability of the alleged communications between the parties, which must be addressed before the issue of duty can be resolved, we do not consider the alternative defense of assumption of risk and the policy considerations surrounding the applicability of the exculpatory clause at this time.

            Affirmed in part, reversed in part, and remanded.


[1] Minn. Stat. § 504B.161, subd. 1, states the following:


In every lease or license of residential premises, the landlord or licensor covenants:

                        (1)  that the premises and all common areas are fit for the use intended by the parties;

            (2)  to keep the premises in reasonable repair during the term of the lease or license, except when the disrepair has been caused by the willful, malicious, or irresponsible conduct of the tenant or licensee or a person under the direction or control of the tenant or licensee; and

                        (3)  to maintain the premises in compliance with the applicable health and safety laws of the state, including the weatherstripping, caulking, storm window, and storm door energy efficiency standards for renter-occupied residences prescribed by section 216C.27, subdivisions 1 and 3, and of the local units of government where the premises are located during the term of the lease or license, except when violation of the health and safety laws has been caused by the willful, malicious, or irresponsible conduct of the tenant or licensee or a person under the direction or control of the tenant or licensee.

                        The parties to a lease or license or residential premises may not waive or modify the covenants imposed by this section.