No. 80-198 

IN THE SUPREME: COURT OF THE STATE OF MONTANA 

1981 

CARMEN CORRIGAN, INDIVIDUALLY AND 

AS PERSONAL REPRESENTATIVE OF THE 

ESTATE OF MAX MORRIS CORRIGAN, 

DECEASED, 

Plaintiff and Appellant, 

W. P. JANNEY and KAY JANNEY, His 

wife, and JANNEY TRUCKING CO., a 

Montana Corporation, 

Defendants and Respondents. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Powell. 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Knight, Dahood, McLean and Everett, Anaconda, Montana 

David M. McLean argued, Anaconda, Montana 

For Respondents: 

Poore, Roth, Robischon and Robinson, Butte, Montana 

James A. Poore, Jr., argued, Butte,, Montana 

Submitted: January 12, 1981 

Decided : 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Plaintiff Carmen Corrigan, as personal representative, filed this action in the District Court to recover 

damages for wrongful death and survival. Defendants, W. P. 

Janney and Kay Janney, answered by denying the allegations 

of the complaint, alleging three defenses: (1) failure to 

state facts sufficient to constitute a claim for relief; (2) 

assumption of risk; and (3) contributory negligence. A 

motion for summary judgment was filed on behalf of the 

Janneys. 

Defendants ' motion for summa.ry judgment was based on 

the theory that no valid claim for relief was stated in the 

complaint based upon previous interpretations of a Montana 

statute by the Supreme Court of Montana. Sections 42-201 

and 42-202, R.C.M. 1947; Dier v. Mueller (1917), 53 Mont. 

288, 163 P. 466. The District Court granted the motion for 

summary judgment on this contention because ". . . the Court 

believes it has no alternative but to follow the mandates of 

the Supreme Court in this regard . . ." The present appeal 

is based upon this portion of the order granting the motion 

for summary judgment . 

The issue presented for review is simply: Was the 

granting of the motion for summary judgment filed by 

defendants Janney proper? More specifically, should this 

Court reverse its longstanding rule on the doctrine of 

"deduct and repair" and thereby allow an action for damages 

for personal injuries sustained by a tenant against the 

landlord? 

Janney Trucking Company was the owner of a rental 

house located at Janneyville, about four miles west of 
Garrison, Montana. During 1973 the house was rented to Max 

Morris Corrigan and his wife, Carmen Corrigan, by Kay Janney 

on behalf of Janney Trucking Company. 

The Corrigans alleged they received electrical shocks 

when they touched a portion of the plumbing system from the 

day they occupied the premises. Numerous guests in the 

house also received electrical shocks from touching portions 

of the plumbing system. Appellant contends she and her 

husband requested the Janneys to inspect the electrical 

system and to have it repaired, but the Janneys did nothing. 

A tenant who occupied the same house prior to the 

Corrigans also repeatedly reported electrical shocks from 

the plumbing system to the Janneys. When they refused to 

make the necessary repairs, this tenant moved out. 

On February 2, 1974, while the Corrigans were taking 

a bath, appellant contends that Max Corrigan came in contact 

with the faucet on the bathtub and received an electrical 

shock which ultimately caused his death. 

The house was later inspected by Earl D. Roberts, a 

State of Montana electrical inspector. The house was 

condemned until such time as it was wired safely. Roberts 

noted that if the electrical system had been properly 

grounded and banded to the plumbing system, the circuit 

breaker would have opened. 

Wayland Smith, a master electrician, testified that 

if the house had been properly grounded, the circuit breaker 

should have tripped and the accident would have been 

avoided. 

Previously this Court has maintained that there is no 

implied warranty of habitability in residential leases; that 
a tenant chooses either to repair the defect by deducting 

one month's rent or to vacate the premises if the defect 

continues. Landt v. Schneider (1904, 31 Mont. 15, 77 P. 

307; Busch v. Baker (1915), 51 Mont. 326, 152 P. 750. 

Further, this Court has denied recovery against the landlord 

for personal injury to a tenant, holding that the "repair 

and deduct" statute is the exclusive remedy. Dier v. Mueller 

(1917), 53 Mont. 288, 163 P. 466. 

In 1977 the legislature enacted the Residential 

Landlord and Tenant Act. Sections 70-24-101 through 

70-24-442, MCA. This Act adopts the doctrine of implied 

warranty of habitability which allows recovery of damages in 

cases involving injury to tenants from dangerous latent 

defects in residential rental property. However, the 

provisions of the Act cannot be made retroactive to apply to 

cases prior to 1977. See Chap. 313, Section 47, Laws of 

Mont. (1977). Therefore, we must look to the case law of 

this State prior to the enactment. 

In Dier v. Mueller, supra, this Court applied the 

"repair and deduct" statute to a claim by a tenant against 

the landlord for personal injuries. In Dier, the trial 

court, in granting summary judgment, noted that it was bound 

by Busch v. Baker (1915), 51 Mont. 326, 152 P. 750. Quoting 

from Busch, we stated: 

"'. . . This construction is to the effect 

that, if the landlord fails to repa.ir, after 

notice, the tenant may himself repair, within 

a certain limit, or move out; but he has no 

redress in damages for injury to person or 

property consequent upon the landlord's 

failure to repair. . . I" Dier, 163 P. at 

467. (Emphasis added.) 

It should be noted that the statement with regard to 

the absence of redress for injury was dictum in Busch. 
Busch involved a suit for unlawful detainer of the premises, 

not personal injury. In Dier this Court failed to 

distinguish between a claim for personal injury and damages 

to a leasehold interest. We now find that the Court erred, 

and we overrule the holding as not being applicable to cases 

involving tenant suits for personal injuries against a 

landlord. It is unnecessary to overrule our holding in Lowe 

v. Root (1975) 166 Mont. 150, 531 P.2d 674, because Lowe 

involved a contract action arising out of damages to the 

leasehold interest and, further, because we are not deciding 

this case on breach of implied warranty of habitability. 

We need not here trace the historical developments of 

the repair and deduct doctrine or the doctrine of caveat 

emptor as applied to tenants of rental residences. Courts 

in other jurisdictions have adequately traced those 

developments. See Mease v. Fox (Iowa 1972), 200 N.W.2d 791; 

Green v. Superior Ct. of City & Cty. of San Francisco 

(1974), 111 Ca1.Rptr. 704, 517 P.2d 1168. The same 

conclusions reached by these courts are applicable here: 

today's urban tenants are interested, not in the land, but 

in a house suitable for human occupation. The residential 

tenant rents a place to live. The common-law doctrine of 

caveat emptor does not apply in these contemporary settings. 

Art. 11, S16, 1972 Mont. Const., provides: 

"The administration of justice. Courts of 

justice shall be open to every person, and 

speedy remedy afforded for every injury of 

person, property, or character . . ." 

It would be patently unconstitutional to deny a 

tenant all causes of action for personal injuries or 

wrongful death arising out of the alleged negligent 

management of rental premises by a landlord. If this action 
were to be taken away, a substitute remedy would have to be 

provided. Arguably, the repair and deduct statute provides 

an alternative remedy for damage to the leasehold interest. 

However, in no way can it be considered an alternative 

remedy for damages caused by personal injury or wrongful 

death. 

In view of our holding that a cause of action for 

personal injuries and wrongful death can be maintained here, 

we must determine the standard of care owed under the 

circumstances. A general obligation statute was in effect 

in Montana when this accident occurred. Section 58-607, 

R.C.M. 1947, provided: 

"Every one is responsible, not only for the 

result of his willful acts, but also for an 

injury occasioned to another by his want of 

ordinary care or skill in the management of 

his property or person, except so far as the 

latter has, willfully or by want of ordinary 

care, brought the injury upon himself. The 

extent of liability in such cases is defined 

by the title on compensatory relief." 

In Brennan v. Cockrell Investments, Inc., (1973), 111 

Cal.Rptr. 122, 35 Cal.App.3d 796, the California appeals 

court had an opportunity to determine the application of an 

identical statute to a landlord/tenant relationship. In 

Brennan an action was brought by a tenant seeking to recover 

damages for personal injuries suffered when he fell off the 

back stairs of a house. The plaintiff sought an instruction 

stating that the owner of the premises is under a duty to 

exercise ordinary care in the management of the premises to 

avoid exposing persons thereon to an unreasonable risk of 

harm. This instruction was refused. Instead, the trial 

court instructed that ordinarily the owner of premises 

leased to a tenant is not liable for any injury to the 
tenant that results from a dangerous condition which existed 

when the tenant took possession. The California appeals 

court reversed the decision of the trial court and, in 

doing so, stated: 

"California departed from the traditional 

rules governing the liability of the owners 

and occupiers of land in the case of Rowland 

v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 

443 P.2d 561, when the court held that 

section 1714 of the Civil Code controlled the 

liability of tenants for injuries to their 

social guests. That statute provides as 

follows: 'Everyone is responsible, not only 

for the result of his willful acts, but also 

for an injury occasioned to another by his 

want of ordinary care or skill in the 

management of his property or person, except 

so far as the latter has, willfully or by 

want of ordinary care, brought the injury 

upon himself . . .' . . . 

"The Rowland court decided that no public 

policy required that an exception be carved 

out of the statute for tenants in possession 

when they were sued by their guests. The 

question in the case under review is whether 

one should be made for landlords not in 

possession when they are sued by their 

tenants. 

". . . That a landlord must act toward his 

tenant as a reasonable person under all of 

the circumstances, including the likelihood 

of injury, the probable seriousness of such 

injury, the burden of reducing or avoiding 

the risk, and his degree of control over the 

risk-creating defect, seems a sound 

proposition and one that expresses well the 

principles of justice and reasonableness upon 

which the law of torts is based. It is no 

part of fairness and rationality to transform 

possession and control from mere factors 

bearing on negligence into barriers to 

consideration of that issue. (See 2 Harper 

and James, The Law of Torts, 27.16 at p. 

1509 (1971).) As the court said in Rowland, 

'[Tlo focus upon the status of the injured 

party, . . . in order to determine the 

question whether the landowner has a duty of 

care, is contrary to our modern social mores 

and humanitarian values.' (Ibid, at p. 118, 

70 Cal.Rptr. at p. 104, 443 P.2d at p. 568). 
". . . The direction the law is now taking 

clearly is toward '"'imposing on owners and 

occupiers a single duty of reasonable care in 

all the circumstances. ' 'I' ... If Brennan, 

111 Cal.Rptr. at 124-126. 

Brennan was later followed in Golden v. Conway 

(1976), 128 Cal.Rptr. 69, 55 Cal.App.3d 948. 

We hold that the duty of care stated in section 

58-607, R.C.M. 1947, is controlling. The owner of premises 

is under a duty to exercise ordinary care in the management 

of the premises to avoid exposing persons thereon to an 

unreasonable risk of harm. 

In summary, we overrule Dier v. Mueller, supra, and 

hold that our Constitution requires that plaintiff have a 

form of redress for wrongful death and survival damages. We 

hold that section 58-607, R.C.M. 1947, is controlling and 

that one is responsible for injury occasioned to another by 

his want of ordinary care subject to the defenses of 

contributory negligence or assumption of risk. 

This case is remanded for trial under the legal 

principles enunciated herein. 

We concur: