Tenants not per se negligent for fire on deck

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Even though tenants storing a grill and charcoal on their apartment deck were in violation of the municipal fire code, they were not per se negligent for a fire that subsequently broke out, the Court of Appeals has ruled.

The tenants argued that the doctrine of negligence per se did not apply because it was unclear whether the fire started from spontaneous combustion of the charcoal or from the storage of spent ash on the deck, the latter of which was not specifically barred by the fire code.

The Court of Appeals agreed, reversing a District Court judge’s ruling on the issue.

“[The municipal fire code] does not prohibit the storage of spent ash on the deck of a multi-unit apartment complex,” Judge R.A. “Jim” Randall wrote. “If the trier of fact were to find that the ash box did not contain any unconsumed charcoal, it could reasonably conclude that the [tenants] were not negligent per se because the fire was not proximately caused by a violation of the [municipal fire code].”

However, the court rejected the tenants’ argument that the landlord assumed a duty to warn them to remove the grilling materials from their deck.

Finally, the court denied the landlord’s fire insurer’s attempt to bring a subrogation claim against the tenants to recover the funds paid out on account of the fire.

The 15-page decision is Bigos, d/b/a The Observatory Apartments v. Kluender, et al., Minnesota Lawyer No. CA-570-00.

Hopkins attorney L.T. Merrigan, who represented the landlord and his insurer, said that he is hopeful that the Supreme Court will accept review of the decision and clarify the meaning of its 1998 decision in Osborne v. Chapman, which allowed a landlord to recover damages from negligent tenants. (The Court of Appeals decided that Osborne did not apply to this case because Osborne did not involve a subrogation claim brought by an insurer.)

West St. Paul attorney Lyndon P. Nelson — who represented the insurer of one of the neighboring tenants who suffered damage as a result of the fire — said his client is considering whether to appeal the court’s ruling on the issue of negligence per se. Nelson pointed out that both inspectors concluded that the fire was caused by charcoal, and that it is not surprising that only spent ashes were found after the fire. Spent ashes, while not specifically prohibited by the municipal code, cannot exist without charcoal, which is prohibited, he added.

Minneapolis attorney Allan E. Wallace, who represented the tenants, was unavailable for comment.

Where’s the fire?

In July 1996, Joel and Jennifer Kluender signed a lease and house rules to live in the Observatory Apartments, located in Burnsville and owned by Ted Bigos Investments, Inc. The next month they moved into an apartment on the second floor. On their deck, the Kluenders kept a kettle-type full-size grill, a bag of charcoal, a can of lighter fluid and a cardboard box containing spent ash and garbage.

Joel Kluender would often cook on the grill, allow the coals to burn to ash, and put the ash into the cardboard box the next time he used the grill.

In April 1997, while emptying ash into the box, some of the ash fell onto the patio below the Kluenders’ deck. The tenant in the unit below complained to an apartment manager that the Kluenders had a grill on their deck and that ash fell onto his patio. The apartment manager wrote a letter dated April 17, 1997, informing the Kluenders of the complaint and the illegality of keeping grilling items on their apartment deck. The letter also instructed the Kluenders to remove the grill. However, the apartment manager did not personally deliver the letter to the Kluenders but left it for a caretaker to deliver. The Kluenders claimed they did not receive the letter.

On April 29, 1997, a fire occurred on the Kluenders’ apartment deck. An inspector for the Burnsville Fire Department was at the scene of the fire and determined that the most likely cause of the fire was spontaneous combustion of unconsumed charcoal in the cardboard box. He also stated that the fire could have been started by a hot coal that had been put into the cardboard box, but concluded that this was unlikely because the Kluenders stated that at least 10 days had passed since the grill had last been used. According to the fire department’s inspector, the fire started on the southwest corner of the Kluenders’ balcony where the cardboard ash box was kept.

An inspector from the State Fire Marshall’s Office determined that the cause of the fire was spontaneous combustion of the bag of charcoal on the deck. The inspector was not at the scene of the fire, but reviewed the aftermath and interviewed and discussed the incident with Burnsville fire investigators. He concluded that the origin of the fire was the northeast wall area of the Kluenders’ balcony where the bag of charcoal was located.

The landlord’s insurance agency, United Fire & Casualty Company, paid for the damages to the apartment building, and then sought subrogation from the Kluenders.

A District Court judge granted summary judgment for the landlord and his insurer, ruling that the Kluenders’ negligence per se was a direct cause of the damages sustained by the landlord. The trial court judge also ruled that the landlord did not owe his tenants, including the Kluenders, a duty of care to inspect and correct any alleged fire code violations by the tenants. However, the District Court judge also dismissed the landlord’s insurer’s subrogation claim against the Kluenders.

The Kluenders appealed the grant of summary judgment. The issues on review were:

• whether the District Court judge erred in finding the Kluenders negligent per se;

• whether the District Court judge erred in ruling that the landlord did not owe his tenants a duty to warn or protect against their own violations of the municipal fire code; and

• whether the District Court judge erred in ruling that the landlord’s insurer may not subrogate against the Kluenders.

Charcoal or ashes

The Court of Appeals agreed with the Kluenders’ argument that a genuine issue of material fact exists regarding causation that precludes summary judgment. The court decided that the District Court judge erred in ruling that the Kluenders were “negligent per se” because they maintained an ash box on their deck in violation of a city ordinance.

In overturning the District Court judge’s grant of summary judgment for the landlord and his insurer on the issue of causation, the Court of Appeals analyzed the Burnsville fire code to determine whether the Kluenders’ violation of that code caused the fire.

The Burnsville fire code prohibits the storing of any barbecue, open flame, charcoal or other material on any balcony attached to an apartment building, observed the court. Although it is undisputed that the Kluenders stored a grill, a bag of charcoal, lighter fluid, and a cardboard ash box on their apartment deck, the cause of the fire was disputed, observed Randall, adding that the municipal fire code did not prohibit the storage of spent ash.

Given the factual issue, summary judgment was not appropriate, the Court of Appeals ruled.

Rejecting arguments

The Court of Appeals rejected the Kluenders’ argument that the landlord owed and assumed a dut
y to his tenants to warn them to remove grilling materials from their deck. “[A]bsent some special relationship between the Kluenders and their landlord, the landlord owed no duty to the Kluenders to inspect and correct any alleged fire code violations by the Kluenders,” wrote Randall. (The Kluenders unsuccessfully argued that the landlord had a duty to warn them that they could not store grilling material on their deck because it violated the municipal fire code.)

“In essence, the Kluenders claim that the landlord should have protected them from themselves,” Randall wrote.