Maryland Arms Ltd. Partnership v. Connell

DAVID T. PROSSER, J.

¶ 65. (dissenting). This dispute requires us to interpret an apartment lease and to square its terms with Wis. Stat. § 704.07, which sets out certain rights and duties of landlords and tenants.

THE LEASE

¶ 66. In November 2005, Cari Connell, 21, rented an apartment in a 41-unit building in Milwaukee. She *328signed a 9-page lease. The lease was co-signed by Cari's mother, Linda, who personally guaranteed payment of any and all sums due to the lessor under the lease. The lease was renewed for a second year in 2006.

¶ 67. The lease contains numerous provisions pertaining to such matters as rent, the security deposit, the obligations of the lessee (tenant), and the rights of the lessor (landlord). Among these provisions are the following:

2.3 Said premises shall be left by Lessee in a clean and undamaged condition. The cost or estimate of repairing any damage to said premises which is not listed in the Apartment Inspection Report shall be deducted from the security deposit, as will the cost of restoring the premises to a clean and rentable condition, normal wear and tear excepted.
3.3 Lessor not liable for property damage or loss. Lessee expressly agrees that Lessor shall not be liable to Lessee or others, including Lessee's guests, occupants and invitees, for any damage to or loss of any personal property located in or about the premises, or the building of which the premises are a part, where said damage or loss results from any cause whatsoever, other than the negligent acts of Lessor. It is the responsibility of the Lessee to provide insurance for their personal property.
3.5 Lessee to keep premises clean and in good repair. Lessee shall keep the premises in a clean, tenantable condition and in as good repair as at the beginning of the Lease term, normal wear and tear excepted.
3.6 Lessee responsible for acts and breaches of Lease by Lessee and Lessee's occupants, guests and invitees. Lessee shall be responsible for all intentional and *329negligent acts or breaches of this Lease by Lessee, Lessee's occupants, guests and invitees. Lessee shall be liable for all damage to the premises and appliances and equipment belonging thereto, in any way caused by the acts of Lessee, Lessee's occupants, guests and invitees.
6. DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY Subject to Wisconsin Law, in the event that the Leased premises suffers casualty loss or damage as a result of fire or other casualty, and in the event that, as a result of said loss or damage, the Leased premises are rendered uninhabitable, and in the event the premises may be restored or the damages repaired, this Lease and the liability for rent shall continue, except that said liability for rent shall be abated during any period of repair or reconstruction. In the event the premises cannot be repaired within sixty (60) days from the happening of such injury, then this Lease shall cease and terminate from the date of such injury. Said liability for rent shall not abate if the loss, damages or injury to the demised premises is caused by the negligence of Lessee, Lessee's occupants, guests or invitees.

(Emphasis added.)

¶ 68. The purpose of several of the lease provisions is to limit the liability of one of the parties. The lease also allocates liability for a casualty like fire or other damage to the premises in situations where neither party is at fault. For instance, the lessee is made responsible for intentional and negligent acts or breaches of the lease by the lessee's occupants, guests and invitees, even though the lessee personally may be wholly without fault. Section 3.6.

INTERPRETING THE LEASE

¶ 69. This case involves an accidental fire in Cari's apartment in 2007 that caused more than $8,500 in *330damage to the premises. The first issue is whether the lease assigns liability for this damage to the tenant under circumstances in which the fire was caused by a hair dryer owned by the tenant, after the tenant brought the hair dryer into the apartment, plugged it in, and left it plugged in overnight.

¶ 70. The critical lease provision, Section 3.6, reads as follows:

Lessee shall be responsible for all intentional and negligent acts or breaches of this Lease by Lessee, Lessee's occupants, guests and invitees. Lessee shall be liable for all damage to the premises and appliances and equipment belonging thereto, in any way caused by the acts of Lessee, Lessee's occupants, guests and invitees. (Emphasis added.)

¶ 71. The landlord does not claim that the tenant was negligent or that the tenant intentionally breached any provision of the lease. The landlord does claim, however, that the tenant caused the damage. The landlord claims that the tenant "caused" the damage by acts which, though in themselves innocent, were nonetheless intentional and led to the fire in Cari's bathroom.

¶ 72. The word "cause" has a well-established meaning in Wisconsin law. When determining whether an act "caused" an injury or harm as a factual matter, the test is whether the act was a "substantial factor" in causing the injury or harm. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 47, 309 Wis. 2d 541, 749 N.W.2d 581 ("One is causally negligent when his or her conduct is a substantial factor in causing injury to another."); see Wis. JI — Civil 1500.

¶ 73. Causation is one of the fundamental elements in a negligence claim. Cause questions ask *331whether there was a causal connection between the negligence of any person and the injury claimed. The questions do not ask about "the cause" but rather "a cause." Ultimately, the fact-finder must determine whether a party's negligence was a substantial factor in producing the injury. Wis. JI — Civil 1500.

¶ 74. Here, the landlord is not required to establish negligence. The landlord is not required even to allege negligence because the lease makes the tenant liable for damage to the premises "in any way caused by the acts of the Lessee." (Emphasis added.) The focus, then, is on the causal connection between acts of the tenant and damage to the premises. Were the acts of the tenant substantial factors in producing the damage to the premises? Specifically, were Cari's acts in plugging in her hair dryer and leaving it plugged in overnight, or longer, substantial factors in causing the fire? The circuit court found that "the defendants [were] liable for the fire caused by the hair dryer."

¶ 75. Employing the "substantial factor" test to determine whether Cari's acts produced the fire is a rational and reasonable way to interpret the word "cause" in the lease and to determine liability. See Clark v. Leisure Vehicles, 96 Wis. 2d 607, 617-18, 292 N.W.2d 630 (1980).

¶ 76. Using that test, the lease provision at issue unambiguously renders the tenant liable for the fire damage caused by her acts of bringing her hair dryer into the apartment, plugging in the hair dryer, and leaving the hair dryer plugged in for hours when it was not being used.

THE LANDLORD'S INTEREST

¶ 77. Residential appliance fires cause an estimated 25 deaths, 525 injuries, and $211 million in *332property damage each year. See United States Fire Administration, Focus on Fire Safety: Appliance Fires, available at http://www.usfa.dhs.gov/citizens/focus/ appliances.shtm. The appliances involved include everything from television sets to hair dryers. USFA Fire Cause Methodology, available at http://www.usfa.dhs. gov/fireservice/nfirs/tools/fire_cause_category_matrix. shtm. According to the National Fire Protection Association, fire from electrical equipment, like hair dryers, was the third leading cause of house fires in 1998. Ken Amaro, Hair Dryer May Be Too Hot to Handle, First Coast News (May 6, 2004), available at http://www.firstcoastnews.com/news/news-article. aspx?storyid=18342.

¶ 78. Residential appliance fires are only one of many financial risks facing property owners, including landlords. Some of these risks are unavoidable. Prudent property owners acquire insurance to cover these risks, but the more risks they seek to cover, irrespective of fault and irrespective of their ability to control the risks, the higher the premiums the insureds are likely to pay. Thus, landlords have a strong economic incentive to allocate liability to tenants in situations where tenants are better able to control risk or where tenants are actually at fault.

¶ 79. When landlords allocate some risk of liability to tenants, their objectives would be undermined if they got tripped up in problems of proof.

¶ 80. Section 2.3 of the lease is a classic example of risk allocation:

2.3 Said premises shall be left by Lessee in a clean and undamaged condition. The cost or estimate of repairing any damage to said premises which is not *333listed in the Apartment Inspection Report shall be deducted from the security deposit, as will the cost of restoring the premises to a clean and rentable condition, normal wear and tear excepted.

Section 2.3 does not require the landlord to prove that the tenant caused the damage found in the tenant's apartment.

¶ 81. Section 3.6 does require proof of causation, but it does not require proof of negligence.

¶ 82. As noted above, the landlord did not allege negligence. The lease was drafted so that the landlord would not be required to prove negligence, inasmuch as proof of negligence — as opposed to proof of cause— could be both costly and difficult. It does not follow, however, that there was no fault in Cari's actions simply because the landlord did not allege negligence.

¶ 83. Since at least the late 1970s, Underwriters Laboratories, Inc. has required all electronic personal grooming appliances, e.g., hair dryers, bearing the UL seal, to attach tags to the power supply cord warning users to unplug the appliance after using.1 See Underwriters Laboratories, Inc., Standard for Safety: Electric Personal Grooming Appliances 38 (5th ed., Apr. 9,1979)

*334(UL 859). Warnings are also included in the instructional materials accompanying the product:

WARNING — To reduce the risk of burns, electrocution, fire, or injury to persons:
1. An appliance should never be left unattended when plugged in.

Id.

¶ 84. The reason for this warning is that parts in many hair dryers are electrically live even when the switch is off.2

¶ 85. Against this background, requiring a landlord to prove a tenant's negligence before allocating liability for an appliance fire would require the landlord to investigate the circumstances surrounding a tenant's use of the appliance before the fire: What brand of appliance was involved? Was a warning label attached to the appliance? Had the appliance been dropped or a cord damaged before use? Was the appliance turned on or plugged in before the fire? Was an appliance that was turned on left unattended? How long was an appliance left plugged in? Most of this information would have to be obtained from the tenant.

¶ 86. In this case, the landlord did not attempt to determine the brand of hair dryer, whether it had a warning label, or how long it had been plugged in *335because the landlord did not have to prove negligence. Instead, the landlord established that Cari left her hair dryer plugged in — at least overnight — and that the hair dryer caused the fire. Leaving the hair dryer plugged in was a substantial factor in causing the fire, and this evidence satisfied the landlord's burden under the lease.

MAJORITY OPINION

¶ 87. The majority does not like this result because it believes the tenant, who knowingly accepted liability for damage caused by her acts, is not as able to bear the cost of that damage as the landlord. The majority engages in fanciful argument to divert attention from the plain language of the lease. It concludes that the language of the lease is ambiguous, and, therefore, the lease must be construed against the drafter.

¶ 88. The central provision of the lease reads:

3.6 Lessee responsible for acts and breaches of Lease by Lessee and Lessee's occupants, guests and invitees. [1] Lessee shall be responsible for all intentional and negligent acts or breaches of this Lease by Lessee, Lessee's occupants, guests and invitees. [2] Lessee shall be liable for all damage to the premises and appliances and equipment belonging thereto, in any way caused by the acts of Lessee, Lessee's occupants, guests and invitees.

¶ 89. The majority argues that the second sentence is ambiguous and that the ambiguity "is compounded when that sentence is read in the context of the paragraph [Section 3.6] as a whole, because Maryland Arms' construction of that sentence would render the preceding sentence surplusage." Majority op., ¶ 3. The majority writes:

*336[I]f the second sentence is read as broadly as Maryland Arms asserts, then the first sentence has no independent meaning.. . .
Intentional acts, negligent acts, and breaches are subsets of the broader category "any acts." If the second sentence covered any and all "acts," then it would necessarily cover the types of acts described in the first sentence. Construing the second sentence as broadly as Maryland Arms asserts would subsume the meaning of the first sentence, rendering it mere surplusage.

Majority op., ¶¶ 41-42.

¶ 90. This interpretation is not correct. The first sentence reads: "Lessee shall be responsible for all intentional and negligent acts or breaches of this Lease by Lessee and Lessee's occupants, guests and invitees." This sentence may be deconstructed as follows:

A. Lessee shall be responsible for all intentional acts.

B. Lessee shall be responsible for all negligent acts.

C. Lessee shall be responsible for all breaches of the lease.

D. Lessee also is responsible when one of these acts or breaches is done by Lessee's occupants, guests or invitees.

¶ 91. The first sentence makes the tenant "responsible" for the tenant's intentional or negligent acts or the tenant's "breaches of this Lease." A tenant's intentional acts, negligent acts, or breaches of the lease may have nothing to do with "damage to the [tenant's] premises" or with "liability" therefor, which is the subject of the second sentence.

¶ 92. To illustrate, the lease contains a number of duties and prohibitions for the tenant. For example, the tenant is prohibited from keeping any pets on the *337premises, using the premises for immoral or unlawful purposes, creating noise or disturbances, dropping items from windows, allowing water to run except when in use, allowing the apartment to be used as a place of business, using grills, obstructing sidewalks and entryways, or interfering with heating, lighting, and other building apparatuses. Furthermore, the tenant is required to maintain the apartment in a way that will not increase the risk of fire, keep the premises clean and in good repair, remove garbage from the premises, park vehicles in a proper manner, and pay utility bills when due.

¶ 93. The first sentence of Section 3.6 holds the tenant responsible for all these requirements, even when they are committed by a person, like a guest, other than the tenant. So long as these acts do not result in damage to the premises, however, they do not come within the purview of the second sentence.

¶ 94. To illustrate specifically, Section 3.1 prohibits a lessee from keeping pets on the premises without written permission. When a tenant keeps a pet without permission, the tenant breaches the lease. When that pet bites or scratches a child walking in the hallway of the building, the tenant will be "responsible" for injury, not the landlord. In neither situation is there "damage to the premises."

¶ 95. One can easily imagine situations in which a tenant causes injury to another by a negligent act but does not damage the premises. Improper treatment of garbage may not damage the premises or create "liability," but it may drive other tenants crazy.

¶ 96. Scrutinizing what is covered in the first sentence of Section 3.6 makes the scope of the second sentence clear. The second sentence introduces an element not necessarily present in the first sentence; *338namely, "damage to the premises" — and it omits prerequisite conditions present in the first sentence; namely, intent, negligence, or breach of the lease. Because the second sentence does not require a breach of the lease as a prerequisite for liability, it reaches acts that would not be objectionable if they had not resulted in "damage to the premises," e.g., leaving a hair dryer plugged in when not in use.

¶ 97. Conversely, the second sentence does not reach a broad swath of activity for which the tenant might be "responsible" but would not be "liable" on account of "damage to the premises." The second sentence allocates liability to the tenant for damage to the premises, irrespective of whether the tenant's causative acts involved intent, negligence, or breach of the lease.

¶ 98. For the majority to insist that Maryland Arms' construction of the second sentence renders the first sentence surplusage disregards the different terms and different scope of the two sentences.

¶ 99. The majority adopts the tenant's interpretation of Section 3.6, under which the first sentence assigns "responsibility" for "intentional or negligent acts" and "breaches of this lease," and the second sentence assigns liability caused only by breaches of the duties enumerated in the first sentence. Majority op., ¶ 46.

¶ 100. The majority, in effect, concludes that Section 3.6 intends to say: "Lessee shall be liable for all damage to the premises caused by the tenant's intentional or negligent acts or breaches of this lease," and nothing more. This interpretation erases distinctions and disregards the import of plain language, and, of course, it would force the landlord to prove such elements as negligence.

*339¶ 101. The sentence "Lessee shall be liable for all damage to the premises ... in any way caused by the acts of Lessee" could not be more clear.

¶ 102. The majority also attacks counsel's explanation of the lease in terms of "control." "[C]ontrol," the majority declares, does "not appear in the second sentence of the Liability Paragraph." [3.6] Indeed, the "concept of 'control' appears nowhere in the entire lease." Majority op., ¶ 32. What the majority evidently forgets is that the landlord's legal rights are not grounded in the rhetoric or analysis of counsel; they are grounded in the language of the lease.

¶ 103. The truth is, however, that the concept of "control" is at the heart of a lease that allocates liability to the party best able to control risk. When a tenant rents an apartment, the tenant takes custody and control of the premises.3 The landlord may establish rules and regulations; but in almost all circumstances, the tenant controls who goes into the apartment, what goes into the apartment, and what transpires in the apartment. Under these circumstances, the tenant is in the best position to manage the premises in a way that minimizes risk. When the landlord later discovers damage to the premises, the landlord cannot be expected to prove that the damage was caused by the tenant's negligence as opposed to, say, an invitee's negligence, or whether the damage was simply the result of an accident. For sound policy reasons related to control, liability for damage to the premises is assigned to the tenant if the landlord can show that the damage was caused by an act of the tenant, the tenant's occupants, the *340tenant's guests, or the tenant's invitees. The tenant is not liable for "normal wear and tear," and the tenant is not liable for damage that is fairly attributable to the landlord.

¶ 104. When damage is caused by an unconnected third party or an act of God, the landlord is assigned the duty to fix and pay for the damage to the premises but the tenant must assume the cost of repairing or replacing her personal property. See Section 3.3. In these situations neither party controls events, and responsibility for damage is allocated based upon the ownership of the damaged property.

¶ 105. When the landlord is made responsible for abnormal damage that is actually caused by tenants, the landlord must spread the resulting expense among all tenants by charging higher rent. When a tenant is made liable for damage that is caused by that tenant, the landlord is better able to contain rent and the tenant has an economic incentive for prudent stewardship of the premises. The tenant also is encouraged to buy insurance for her protection as well as the protection of others. See Section 3.3. Imposing responsibility on the landlord for damage caused by a tenant, when the landlord cannot control risks created by that tenant, defies economic logic.

¶ 106. The concept of control is linked to the substantial factor test which is central to causation. A tenant would not be liable in circumstances that are not within the tenant's control. The majority's attack on counsel's "control" analysis is unavailing because it fails to address a real issue.

¶ 107. The majority makes a third argument attacking the lease:

[T]aken at face value, the breadth of Maryland Arms' construction of the contract would produce absurd *341results. Maryland Arms asserts that any act within the control of the tenant can give rise to liability under the contract. If the landlord can identify an "act" of the tenant that is a "cause" of the damage to the premises, liability for repairing the premises is shifted to the tenant — regardless of how remote the tenant's act was from the damage and regardless of whether the damage would not have occurred but for other concurrent causes outside of the tenant's control.

Majority op., ¶ 33.

¶ 108. There are several defects in this description of the landlord's position. Counsel's "control" analysis should be viewed as a limitation on a tenant's liability, not an attempt to extend it indefinitely. No rational fact-finder would hold a tenant liable for damage when a burglar breaks a window to gain entry to the tenant's apartment, or when lightning strikes the apartment. Majority op., ¶¶ 34-35. These intervening events are not within the control of the tenant and damage cannot be attributed to any act of the tenant.

¶ 109. Stated differently, the acts of the tenant in the majority's hypotheticals would not be substantial factors in causing the purported damage. The acts portrayed in the hypotheticals are very different from a tenant leaving a hair dryer plugged in overnight when it is not being used. There is no question that Cari's acts were "substantial factors" in causing the damage. When a burglar breaks a window to enter an apartment, the burglar's act is so overwhelmingly the cause of the damage that it simply could not be said that the tenant's act of locking the door was a substantial factor.

¶ 110. The majority gives a laundry list of electrical appliances to suggest the scope of the tenant's potential liability. It then reasons that the parties could not have intended that the tenant routinely unplug all *342these appliances. Majority op., ¶ 36. This reasoning ignores the purpose of the provision at issue: to allocate risk to the party that controls the premises and the appliances on that premises.

¶ 111. Is it more logical to hold the landlord responsible for fires caused by the tenant's electrical appliances — even when the landlord may have no knowledge of the appliances, much less the ability to plug them in or unplug them when they are not being used? The simple fact is, if and when a fire occurs, someone will have to pay for it. In the relatively unusual situation here — a fire in the tenant's apartment caused by neither the negligence or intentional act of the landlord nor the negligence or improper use of the premises by the tenant — contractually allocating risk to the tenant is not less reasonable than imposing that risk on the landlord.

¶ 112. Causation is normally a fact question. There may be situations in which it is genuinely unclear whether a tenant's act or acts caused the damage for which the landlord is seeking to hold the tenant liable. The proper response in such a case is not to reinterpret the lease but rather to make a factual finding on the question of cause. See Fandrey v. Am. Fam. Mut. Ins. Co., 2004 WI 62, ¶ 12, 272 Wis. 2d 46, 680 N.W.2d 345 (cause-in-fact is an issue for the jury). The word "cause" is not ambiguous simply because, in different fact situations, it is not easy to determine whether certain acts caused damage. The stipulated facts in this case show a causal chain between the tenant's acts and the fire in her apartment. In short, Cari's acts were a substantial factor in producing the damage.

¶ 113. Finally, the lease does not necessarily "shift" liability to the tenant. A tenant is clearly respon*343sible for loss to her own personal property, from her hair dryer to her clothes to her furniture, from theft or fire, absent the landlord's negligence. The landlord would contend that the lease codifies a tenant's common law responsibility for other damage on these facts.4

¶ 114. For all these reasons, I cannot agree with the majority's conclusion that the lease is ambiguous. The lease unambiguously renders the tenant liable for the damage to the premises caused by her acts of plugging in her hair dryer and leaving it plugged in overnight, or longer.

APPLICATION OF WIS. STAT. § 704.07

¶ 115. The majority declines to address the second issue, whether Wis. Stat. § 704.07 precludes a residential lease from allocating liability for damages that were caused by something other than the negligence or intentional act of the landlord or the negligence or improper use of the premises by the tenant. The court of appeals based its decision on these statutory grounds, not on a fanciful interpretation of the lease.

¶ 116. This case involves the interplay of several different provisions within Wis. Stat. § 704.07. The statute begins by asserting that it applies to all residential tenancies and that "[a]n agreement to waive the requirements of this section in a residential tenancy is void." § 704.07(1). The statute then sets out the duties of the landlord in subsection (2):

(a) Except for repairs made necessary by the negligence of, or improper use of the premise by, the *344tenant, the landlord has a duty to do all of the following:
1. Keep in a reasonable state of repair portions of the premises over which the landlord maintains control.
3. Make all necessary structural repairs.
(c) If the premises are damaged by fire, water or other casualty, not the result of the negligence or intentional act of the landlord, this subsection is inapplicable and either sub. (3) or (4) governs.

Wis. Stat. § 704.07(2) (emphasis added).

¶ 117. The statute sets out the duties of the tenant in subsection (3):

(a) If the premises are damaged by the negligence or improper use of the premises by the tenant, the tenant must repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the repair or redecoration, and in such case the tenant must reimburse the landlord for the reasonable cost thereof; the cost to the landlord is presumed reasonable unless proved otherwise by the tenant.

Wis. Stat. § 704.07(3)(a).

¶ 118. Finally, the statute provides for the situation in which the premises become untenantable without the fault of either the landlord or the tenant:

If the premises become untenantable because of damage by fire, water or other casualty or because of any condition hazardous to health, or if there is a substantial violation of sub. (2) materially affecting the *345health or safety of the tenant, the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard or the substantial violation of sub. (2) materially affecting the health or safety of the tenant; or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on the tenant. If the tenant remains in possession, rent abates to the extent the tenant is deprived of the full normal use of the premises. This section does not authorize rent to be withheld in full, if the tenant remains in possession. If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable. This subsection is inapplicable if the damage or condition is caused by negligence or improper use by the tenant.

Wis. Stat. § 704.07(4) (emphasis added).

¶ 119. The court of appeals acknowledged that the statute "does not explicitly spell out whose duty it is to repair damages caused by a fire when the premises are damaged by something other than the landlord's negligence or intentional act, or the tenant's negligence or improper use." Maryland Arms Ltd. P'ship v. Connell, 2009 WI App 87, ¶ 9, 320 Wis. 2d 147, 769 N.W.2d 145. However, the court reasoned that "the only logical conclusion" is that "landlords are obligated to repair the premises when the fire damage was not caused by the landlord's negligence or intentional act or the tenant's negligence or improper use of the premises." Id.

¶ 120. Following this logic, the court of appeals incorrectly concluded that Wis. Stat. § 704.07(3) provides the only circumstance in which the tenant has a duty to repair. Maryland Arms, 320 Wis. 2d 147, ¶ 7. *346Accordingly, it added, the lease provision was unenforceable because it attempted to waive the requirements of § 704.07. Furthermore, the court of appeals reasoned, based on the Judicial Council Note to the statute, the legislature intended "to prohibit generally worded clauses in a lease from overriding the statute." Id., ¶ 13. Because this line of reasoning places a restriction on residential leases that is not present in the statute, I cannot agree with the court of appeals' interpretation of the statute.

¶ 121. Statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the language of the statute is plain, we inquire no further. Id. When interpreting the language of the statute, we read the language "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46.

¶ 122. A close reading of § 704.07 reveals that it does not prohibit parties from allocating liability as the parties did in this lease.

¶ 123. Neither § 704.07(2) (duties of the landlord) nor § 704.07(3) (duties of the tenant) applies in this case. Section 704.07(2) does not apply because the damage was "not the result of the negligence or intentional act of the landlord." § 704.07(2)(c). Section 704.07(3) does not apply because the premises were not "damaged by the negligence or improper use of the premises by the tenant." § 704.07(3)(a).

¶ 124. Section 704.07(4) sets out the situation in which the premises become untenantable. In that event, the tenant may remove (1) unless the landlord promptly rebuilds or repairs; or (2) if the repair would *347cause an undue hardship on the tenant. Id. If the tenant chooses to remain on the premises, rent is abated "to the extent the tenant is deprived of the full normal use of the premises." Id. If the tenant moves out, she is no longer liable for rent. Id.

¶ 125. In summary, § 704.07 as a whole describes three potential circumstances: (1) if the damage is caused by the landlord's negligence or intentional act, the landlord has a duty to repair; (2) if the damage is caused by the tenant's negligence or improper use of the premises, the tenant has a duty to repair (or pay for repair); (3) if the premises become untenantable, the tenant may remove unless the landlord repairs, and may abate rent. Wis. Stat. § 704.07(4).

¶ 126. Nothing in the language or structure of § 704.07 suggests that § 704.07(3) sets out the only circumstance in which the tenant may be liable for damages caused by fire. The court of appeals reasoned that this was the "only logical conclusion" based on the various landlord duties imposed by the statute. The statute, however, does not impose a duty to repair on the landlord when fire damage was caused by something other than the landlord's negligence or improper act. It merely allows the tenant to abate rent or remove unless the landlord repairs, if the fire renders the premises untenantable.

¶ 127. The specific circumstances of § 704.07(4) are not present in this case. Neither the pleadings nor the stipulation indicates that the fire rendered the premises untenantable. It appears that Maryland Arms repaired the property and subsequently billed Cari for the amount of repair. It does not appear that Cari invoked either of the remedies in § 704.07(4): removal or rent abatement. Thus, even if § 704.07(4) prohibited contractual allocation of liability where damage ren*348dered the premises untenantable, that prohibition would not apply to these facts because there is no indication that the fire rendered the premises untenantable.

¶ 128. There are two additional provisions in chapter 704 that illuminate § 704.07(4). Wisconsin Stat. § 704.05(1) reads as follows:

(1) When section applicable. So far as applicable, this section governs the rights and duties of the landlord and tenant in the absence of any inconsistent provision in writing signed by both the landlord and the tenant. This section applies to any tenancy.

Wis. Stat. § 704.05(1) (emphasis added). This section acknowledges the parties' ability to define their rights with respect to one another by contract. Although the language applies specifically to § 704.05, the underlying principle carries over to § 704.07. Thus, so long as the parties do not waive the requirements of § 704.07, the freedom of contract embodied in § 704.05 permits them to allocate risk by the terms of the lease.

¶ 129. The second provision that sheds light on the proper interpretation of § 704.07 is Wis. Stat. § 704.09(2). Section 704.09 governs the transfer of the landlord's or tenant's interest in the property. Section 704.09(2) states: "In the absence of an express release or a contrary provision in the lease, transfer or consent to transfer does not relieve the transferring party of any contractual obligations under the lease, except" in a specified situation. Thus, while § 704.09(2) does not explicitly address rights under § 704.07, it supports the proposition that a tenant's liability under a lease continues even when the tenant is no longer in possession of the premises. Read together with § 704.07(4), it clarifies that § 704.07(4) does not limit the parties' *349ability to allocate risk for damage. A tenant may remove from the property under § 704.07(4), in which case the tenant will no longer be liable for rent. Section 704.07(4) does not, however, relieve a tenant of other liability she may have incurred under the lease.

¶ 130. Because nothing in Wis. Stat. § 704.07 imposes a duty on a party to repair damage that was not caused by the landlord's negligent or intentional act or the tenant's negligence or improper use of the premises, the lease provision at issue is not prohibited by the statute's command that "[a]n agreement to waive the requirements of this section in a residential tenancy is void." Wis. Stat. § 704.07(1). The statute leaves open the opportunity for landlords and tenants to allocate liability in such situations as they see fit.

¶ 131. The Apartment Association of South Central Wisconsin, Inc., Apartment Association of Southeastern Wisconsin, Inc., Central Wisconsin Apartment Association, and Lakeshore Apartment Association, Inc. contend that the court of appeals decision will have negative consequences for landlords throughout the state because it "assign[s] blanket legal responsibility for certain apartment damages to a landlord, regardless of whether the damages were caused by that landlord." As a result, landlords are made responsible for such losses, even when they "(1) are not in possession of the property, (2) are not in control of the instrumentality causing the damages, and (3) are otherwise wholly innocent with regard to the damages."

¶ 132. This case presents an important issue of statutory interpretation that will have widespread effect on residential leases in Wisconsin. The majority has failed to address this issue, limiting its attention to the language of the specific lease at hand. Furthermore, it has exacerbated the problem identified by the apart*350ment associations by misinterpreting unambiguous language in the lease and creating a de facto rule of landlord responsibility, even where the parties agree otherwise. This decision will increase insurance premiums for landlords who will now be responsible for damages caused by factors beyond their control. Renters throughout the state will, in turn, bear this burden in the form of increased rent.

CONCLUSION

¶ 133. In sum, the lease provision at issue clearly and unambiguously renders the tenant liable for damage to the premises resulting from the fire caused by her acts of bringing the hair dryer into the apartment, plugging it in, and leaving it plugged in overnight, or longer. Wisconsin Stat. § 704.07 does not preclude a residential lease from allocating liability for damage to the tenant's premises caused by neither the negligence of the landlord nor the negligence of the tenant. The decision of the court of appeals should be reversed. Because the majority concludes otherwise, I respectfully dissent.

¶ 134. I am authorized to state that Justice MICHAEL J. GABLEMAN joins this dissent.

The UL standards state:

An appliance of the type described in paragraph 37.6 [[a] hand supported hair dryer blower styler, styler dryer, heated air comb, etc.] shall be provided with a tag that is permanently attached to the power supply cord. The following warning instruction shall be included on the tag:
DANGER — TO REDUCE THE RISK OF ELECTROCUTION:
1. Always unplug this appliance after using.
DO NOT REMOVE THIS TAG.

*334Underwriters Laboratories, Inc., Standard for Safety: Electric Personal Grooming Appliances 36A (5th ed., Apr. 9, 1979) (UL 859).

Several current brands of hair dryers (Conair, Revlon, Vidal Sassoon) attach warning labels that read: "UNPLUG IT[.] As with most electrical appliances parts in this dryer are electrically live even when switch is off: To Reduce Risk of Death by Electric Shock: 1. Always 'Unplug It' After Use."

Wisconsin Stat. § 704.05(2) notes that, with a few exceptions, "the tenant has the right to exclusive possession of the premises."

"At common law the tenant bore the risk of a fire or any other casualty loss." Judicial Council Committee Note, 1969, Wis. Stat. § 704.07 (quoted in Maryland Arms Limited Partnership v. Connell, 2009 WT App 87, ¶ 10, 320 Wis. 2d 147, 769 N.W.2d 145).