(specially concurring).
I concur in the affirmance of summary judgment in favor the Gianninis for the reasons stated. I also concur in the reversal of summary judgment in favor of the Starrs and McCormicks but for different reasons.
The parties presented this matter to the trial court and to this Court with respect to legal duties as between landowners and invitees or licensees. In holding summary judgment in favor of the Starrs and McCormicks improper, the opinion refers to legal duties owed plaintiff by those defendants, citing N.M.U.J.I.Civ. 13.9 and 13.10, N.M.S. A.1978 (1980 Repl.Pamp.). Those instructions deal with the duty of a landowner to a business invitee arising from a condition of the premises or a known or discoverable danger.
Based on my understanding of the uncontroverted facts, the Starrs and McCormicks, as owners of a mobile home park, rented space 27 to the Chavezes. Even though the latter had received notice of eviction at the time of the accident and were in the process dismantling the antennae and trailer skirts when the accident occurred, the relationship of landlord-tenant still existed between the Starrs and McCormicks and Chavezes, if not as a matter of law, then as one of fact. Thus, we are concerned here with those principles of law which relate to the duty of a landlord to his tenant or to those entering the premises by the tenant’s invitation.
Restatement (Second) of Torts, § 356 (1965) provides:
Conditions Existing When Lessor Transfers Possession: General Rule Except as stated in §§ 357-362, a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.
To be entitled to summary judgment, the Starrs and McCormicks must have made a prima facie showing of no issue of fact as to any of the exceptions listed in § 356. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). This not having been done is sufficient reason to deny summary judgment.
While not exhaustive, the following authorities are helpful: Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540 (1936); Coggins v. Gregorio, 97 F.2d 948 (10th Cir.1938); Cotter v. Novak, 57 N.M. 639, 261 P.2d 827 (1953); Lommori v. Milner Hotels, 63 N.M. 342, 319 P.2d 949 (1957).
For the reasons stated, I would reverse the summary judgment in favor of the Starrs and McCormicks.