This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-985

Donald G. Soltis, d/b/a

Atwater Drug,

Appellant,

vs.

Brian Hovey, et al.,

Respondents.

Filed October 20, 1998

Affirmed

Short, Judge

Kandiyohi County District Court

File No. C796797

John A. Nelson, Mark R. Azman, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302 (for appellant)

Paul Wocken, Willenbring, Dahl, Wocken & Zimmerman, Red River at Main, P.O. Box 417, Cold Spring, MN 56320 (for respondent)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

After the artwork sold at his drugstore sustained water damage, Donald Soltis sued his landlords, Brian and Jane Hovey, for negligently failing to inspect, maintain, and/or repair the roof. On cross-motions for summary judgment, the trial court concluded the landlords did not owe a duty of care to Soltis and granted summary judgment in favor of the landlords. On appeal, Soltis argues the trial court erred in ruling: (1) the landlords had no obligation to inform Soltis that the premises were undesirable for Soltis's particular use; and (2) there is no implied covenant of suitability or repair in the parties' oral lease. We affirm.

D E C I S I O N

On appeal from summary judgment, this court examines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Minn. R. Civ. P. 56.03 (setting forth trial court standard for summary judgment). Although this court views the evidence in the light most favorable to the party against whom judgment was granted, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); Fabio v. Bellomo, 504 N.W.2d, 758, 761 (Minn. 1993).

To maintain a claim for negligence, a plaintiff must show: (1) a duty; (2) a breach of that duty; (3) a causal connection between breach of duty and injury; and (4) injury in fact. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982) (quoting Schmanski v. Church of St. Casimir, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954)). The existence of a legal duty is a question of law that this court reviews de novo. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985); Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I.

Soltis argues the trial court erred in granting summary judgment because the landlords had a duty to inform him of the premises' defects. See Vermes v. American Dist. Tel. Co., 312 Minn. 33, 40-41, 251 N.W.2d 101, 105 (1977) (holding, in tort suit for damages from burglary, lessor of commercial space had duty to point out facts about premises that would tend to make them insecure for operation of jewelry store).

A landlord has a duty to inform prospective tenants who intend to make special or eccentric use of commercial premises of nonobvious defects that affect a specific business need so the prospective tenant can assess the suitability of the premises. Id. at 40-41, 251 N.W.2d at 105 (holding when suitability factors might not be obvious, landlord's duty, prior to signing of lease, is to point out any facts about premises that would tend to make them undesirable to a commercial tenant with specific needs peculiar to his business so the prospective tenant may assess the suitability of the facility); Goodchild v. Jaks Partners, No. C7-95-968, 1995 WL 687660, at *4 (Minn. App. Nov. 21, 1995) (concluding Vermes provides landlord with "narrow duty" to warn tenant of nonobvious physical defects that make premises unsuitable for tenant's "eccentric" use), review denied (Minn. Jan. 12, 1996).

The record demonstrates: (1) Soltis was not a prospective tenant evaluating the premises; (2) he was an occupant of the building for nine years prior to and five years after the landlords' purchase of the building and was thus as familiar with the facilities as the landlords; (3) Soltis's use of the rented retail premises to sell artwork and pharmaceuticals was not a special or eccentric use; and (4) his requirement of a watertight roof was a usual requirement of any business. Given these undisputed facts, the landlords had no duty to inform Soltis of the possibility of a leaky roof.

II.

Soltis also argues the trial court erred by failing to recognize an implied covenant of suitability in the parties' oral commercial lease. See Vermes, 312 Minn. at 40-41, 251 N.W.2d at 105 (holding lessor of commercial space had duty to inform prospective tenant about premises' qualities that would make them unsuitable for tenant's particular business); see also Davidow v. Inwood N. Prof'l Group - Phase I, 747 S.W.2d 373, 377 (Tex. 1988) (adopting implied warranty of suitability for commercial leases that warrants no latent defects exist at inception of lease and landlord will maintain premises in suitable condition throughout lease). However, this court has been unwilling to expand the holding in Vermes beyond its facts. See Goodchild, 1995 WL 687660, at *4 (concluding Vermes provides landlord with "narrow duty" to warn tenant of nonobvious physical defects that make premises unsuitable for tenant's "eccentric" use); Pfarr v. Renneke, No. C9-89-1305, 1989 WL 141260, at *1 (Minn. App. Nov. 28, 1989) (concluding Vermes provides landlord with duty "to give sufficient information so that tenant can properly assess suitability of premises for a particular use" but not an implied warranty of fitness). In addition, the majority of other states have declined to adopt an implied warranty of suitability for commercial leases. See, e.g., B.W.S. Invs. v. Mid-Am Restaurants, Inc., 459 N.W.2d 759, 763 (N.D. 1990) (adopting majority view that implied warranty of habitability or fitness does not extend to commercial leases); Klatman v. Barnett, 458 So.2d 806, 807 (Fla. Dist. Ct. App. 1984) (Glickstein, J., concurring) (concluding extension of implied warranty of habitability to commercial tenants was province of state legislature); Muro v. Superior Court, 229 Cal. Rptr. 383, 388-89 (Cal. Ct. App. 1986) (discussing public policy for limiting commercial landlord's liability); see also Thomas M. Fleming, Annotation, Implied Warranty of Fitness or Suitability in Commercial Leases - Modern Status, 76 A.L.R. 4th 928, 933-34 (1990) (discussing public policy for limiting commercial landlord's liability); Fred William Bopp III, The Unwarranted Implication of a Warranty of Fitness in Commercial Leases - An Alternative Approach, 41 Vand. L. Rev. 1057, 1081-83 (1988) (discussing public policy for limiting commercial landlord's liability). For these reasons, the landlords had no duty, as a matter of law, to inform Soltis about the premises' qualities.

Soltis further argues the trial court erred by failing to recognize an implied duty to inspect, maintain, and repair the premises. Although no such implied covenant generally exists in commercial leases, if a landlord retains possession or control over a common area or assumes duties related to the maintenance or repair of a common area, then a duty to repair may be implied. See Nickelsen v. Minneapolis, N. & S. Ry., 168 Minn. 118, 120, 209 N.W. 646, 647 (1926) (overruled to extent landlord is not relieved from liability on basis of lack of actual knowledge of hidden defect by Johnson v. O'Brien, 258 Minn. 502, 506-07, 105 N.W.2d 244, 247 (1960)); Krueger v. Farrant, 29 Minn. 385, 387, 13 N.W. 158, 159 (1882) (holding landlord did not have implied duty to repair roof in absence of express agreement). Liability for negligent repairs may be imposed on landlords. Drager by Gutzman v. Aluminum Indus. Corp., 495 N.W.2d 879, 885 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).

Despite no written lease agreement, Soltis offered evidence that the landlords inspected and made some repairs to the roof. However, Soltis failed to offer any evidence of any negligent repair or causation, and admitted that an unusual 18-inch rainfall occurred on the night in question. Under these circumstances, Soltis failed to offer evidence of an element essential to his case and the trial court properly granted summary judgment in favor of the landlords. See Celotex, 477 U.S. at 322, 106 S. Ct. at 2552 (holding summary judgment appropriate if party fails to establish existence of an element essential to claim).

Affirmed.