THE STATE OF SOUTH CAROLINA
In The Supreme Court
Individually and as
Mother and Natural
Guardian of Ashley
Marie Poland, a Minor, Plaintiff,
United States of
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
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:
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?
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
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.