dissenting. The issue in this appeal is whether the landlord is immunized against an action by a person, other than the landlord’s tenant, for negligence in creating or maintaining a “common” area which has not been placed in the exclusive control of the tenant. The majority opinion concludes that the landlord may not be liable to the guest of a tenant who alleges that the landlord was negligent in creating barriers in a parking lot and then negligently failing to light the parking lot properly. The majority’s holding is based on a case holding that a landlord may not be held liable to her tenant for an injury occurring to a third party on “leased property over which the landlord has relinquished possession and control to a tenant.” Stalter v. Akers, 303 Ark. 603, 607, 798 S.W.2d 428, 430 (1990). The property in question in the Stalter case was a porch on a house the control of which had clearly been relinquished to the tenant.
As the majority opinion states, we have tenaciously clung to the rule that a landlord’s duty to a tenant is solely contractual, and thus we have held that a landlord is not liable for negligence in failure properly to maintain rental property resulting in injury to the tenant. We have questioned that view, however.
In Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996), a case in which a tenant alleged property damage due to his landlord’s failure to maintain an airplane hangar properly, we pointed out our longstanding rule and said, “Because of the policy considerations and possible impact that would ensue in enlarging a landlord’s liability, there is merit in the argument that such matters might be dealt with better in the legislative arena.” Later in the same paragraph, however, we wrote that we would “not foreclose” review of the “caveat lessee” rule in a proper case. See also Bartley v. Sweetser, 319 Ark. 117, 122, 890 S.W.2d 250, 252 (1994), (Newbern, J., concurring.) Here we are provided an opportunity to limit a rule with respect to which we have express doubts. Other courts have so limited the application of the rule.
It is well-established that the landlord’s traditional tort immunity is not available when injuries to tenants or to others result horn dangerous conditions on portions of the property that are within the control of the landlord. In this situation, the position of the landlord is essentially that of a possessor of land who invites or permits others to use the property, and who thereby owes to such users a duty of reasonable contemplated use. The landlord is therefore under an affirmative obligation to exercise reasonable care to inspect portions of the land located there. The obligation extends not only to the tenant, but also to the tenant’s family members, employees, invitees, and guests, and to others who are rightfully on the land.
5 Thompson on Real Property, Thomas Edition 205 (David A. Thomas ed. 1994). See Lakeview Assoc., Ltd. V. Maes (1995 Colo.) (landlord owed duty to tenant with respect to safety of parking lot whether or not tenant used lot to park an automobile; see also Hankard v. Beal, 543 A.2d 1376 (Me. 1988) (trial court improperly granted landlord’s motion for summary judgment as to landlord’s liability when a third party fell and was injured in parking lot). “Implicit in these decisions is the notion that since no individual tenant controls the common area, control remains with the landlord.” Robert S. Schoshinski, American Law of Landlord and Tenant 190 (1980 and Supp. 1997).
If a landlord may not be held responsible for negligence in creating or maintaining an ill-lighted apartment-house parking lot which is alleged to be a trap for the unwary, is the tenant responsible? If not the tenant, then is the alleged negligence simply a wrong without a remedy? There is no need to reach such a result.
In the case now before us, the majority applies the old landlord-tenant rule and the “exclusive possession” aspect of it in a case where it need not apply. Again, we are not dealing with a landlord and a tenant but with a property owner and a person who is not a tenant. Not only does the majority apply a rule that we have questioned; it extends the rule to a situation to which it has not previously been applied.
I respectfully dissent.
Corbin, J., joins in this dissenting opinion.