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Labarbera v. Malec

Court of Appeals of Missouri, Eastern District, Second Division

March 6, 2018

JUNE LABARBERA, SURVIVING MOTHER OF ALLISON GARCIA, DECEASED, Appellant,
v.
JOHN MALEC, DEFENDANT AD LITEM FOR ELEANORA G. PACANOWSKI, DECEASED, Respondent.

         Appeal from the Circuit Court of the City of St. Louis Honorable Joan L. Moriarty

          Philip M. Hess, Judge.

         Introduction

         June LaBarbera ("Plaintiff") appeals the trial court's grant of summary judgment in favor of Eleanora G. Pacanowski ("Defendant"). In 2000, Defendant leased a single-family residential property at 5231 Wilson Avenue (the "Property") in the City of St. Louis to Clifford Washburn. In August of 2010 there was a fire at the Property. Washburn and Plaintiff's daughter, Allison Garcia ("Decedent"), who was spending the night there, died. Plaintiff brought a wrongful death suit on behalf of Decedent claiming Defendant was negligent for failing to maintain operable smoke detectors in the Property that resulted in her daughter's death. The trial court granted summary judgment in Defendant's favor, finding Plaintiff could not show Defendant owed any duty to maintain the smoke detectors. We modify the judgment to correct a clerical error and affirm in all other respects.

         Factual and Procedural Background

         On August 22, 2013, Defendant died. On August 23, 2013, Plaintiff filed a one-count wrongful death negligence claim against Defendant alleging that on August 24, 2010, Decedent was sleeping at the Property when a fire started. Plaintiff alleged Decedent was not alerted the fire had started because the batteries had been removed from the smoke detectors in the Property. Plaintiff claimed that as a result Decedent was not awoken with enough time to exit the Property, and she died from smoke inhalation. Plaintiff alleged that Defendant was negligent because Defendant failed to maintain operable smoke detectors in the Property.

         Plaintiff attempted to serve Defendant with a summons on multiple occasions but was unsuccessful because Defendant was deceased. On January 8, 2015, Plaintiff moved for appointment of a defendant ad litem pursuant to § 537.021.[1] On February 25, 2015, the trial court granted Plaintiff's motion and appointed John Malec as defendant ad litem for Defendant (the "DAL").

         On June 30, 2015, the DAL filed its answer, and on September 28, 2016, the DAL filed its motion for summary judgment arguing Plaintiff could not show Defendant owed any duty to Decedent to maintain operable batteries in the smoke detectors. Attached to the DAL's motion was Plaintiff's deposition, Defendant's daughter's deposition, and a certified copy of Chapter 25.52.060 of the Revised Code of the City of St. Louis. In his reply, the DAL also included an affidavit from Defendant's daughter, interrogatory and request for production responses, and a quitclaim deed for the Property as part of the summary judgment record.

         In her deposition, Defendant's daughter testified she had been assisting her mother in renting the Property for several years. She testified that before she could rent the Property to a tenant she had to get an occupancy permit from the City of St. Louis. She said before the inspector came out to the Property she had to make sure the smoke detectors were in the appropriate rooms. She testified she always purchased new smoke detectors every time a new tenant moved into the Property.

         She testified she rented the Property to Washburn in 2000. She explained that there was no written lease but she told Washburn if there was a problem to call her when it was minor as opposed to waiting until it was major. She said Washburn was more like family than a tenant. She testified Washburn would make repairs to the Property himself if he could, would landscape the Property, and would deduct his expenses from the rent.

         She testified that Washburn called her the week before the fire and said he would have the rent the following week if she wanted to come by and pick it up. The following week she went to the Property but Washburn did not answer and she thought she smelled something burning so she called the fire department. She gave the fire department permission to break down the door and inside they found Decedent and Washburn dead. She testified she had a key to the Property but did not have it with her.

         She testified she purchased smoke detectors for the Property and had them installed in 2000. She testified she put two smoke detectors upstairs and two downstairs. She never replaced the smoke detectors but she was not sure if the smoke detectors in the Property at the time of the fire were the same ones she purchased. She did not know if the smoke detectors were working at the time of the fire. She testified that every October she would ask Washburn if he wanted her to get batteries or if he had batteries. She said Washburn would always say he had taken care of it, and she assumed Washburn took care of the smoke detectors. In her affidavit, she reiterated that each October she would remind Washburn to replace the batteries in the smoke detectors and each year Washburn would tell her that he had taken care of it. She stated that during Washburn's tenancy she did not provide him with batteries for the smoke detectors, nor did she personally replace the batteries within the smoke detectors.

         In Defendant's daughter's affidavit she further stated that while there was no written lease with Washburn, there was an oral agreement that if a repair was needed, Washburn was to call her. She stated that throughout Washburn's ten-year tenancy, the custom and practice was that Washburn would make improvements and/or repairs, then he would deduct the cost from his monthly rent and submit receipts with his rent payment. She stated she retained a key for the Property for emergencies only, or if Washburn became locked out or needed a spare key. She said that during Washburn's tenancy she never used the key to enter the Property and never entered the Property without the invitation and consent of Washburn. She explained that while she would occasionally pick up the rent by stopping by the Property, this was not routine protocol as the rent was usually paid through the mail. On the occasions she picked up the rent at the Property, she did not enter the Property unless Washburn invited her in.

         The trial court granted summary judgment in Defendant's favor, finding that Plaintiff could not show Defendant owed any duty to Decedent to ...


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