ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM C. LLOYD JULIA BLACKWELL GELINAS
MATTHEW C. BOULTON ERIC A. RIEGNER
Bill Lloyd & Associates DIONNE CARROLL MCCOY
Bloomington, Indiana Locke Reynolds LLP
COURT OF APPEALS OF INDIANA
EDITH ZAWISTOSKI, )
vs. ) No. 53A05-0001-CV-26
GENE B. GLICK COMPANY, INC., )
Individually, GENE B. GLICK COMPANY, INC. )
d/b/a GENE GLICK MANAGEMENT )
CORPORATION, and GENE B. GLICK )
COMPANY, INC. a/k/a and d/b/a CAMBRIDGE )
SQUARE OF BLOOMINGTON, LLC, and a/k/a )
CAMBRIDGE SQUARE APARTMENTS, as the )
Landlord Identified in the Lease, )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Marc R. Kellams, Judge
Cause No. 53C02-9802-CT-293
May 5, 2000
OPINION FOR PUBLICATION
Edith Zawistoski appeals from the grant of partial summary judgment in favor of
Gene B. Glick Company, Inc. and Cambridge Square of Bloomington, LLC (Glick), raising
the following issue for review:
Whether the trial court erred in finding that there was no genuine issue
of material fact with regard to whether the residential lease entered into by
the parties created a warranty on the part of the landlord to keep
the common areas safe for the residents.
FACTS AND PROCEDURAL HISTORY
In 1991, Zawistoski and Glick entered into a lease of an apartment in
the Cambridge Square apartment complex in Bloomington, Indiana. Glick advertised Cambridge Square
as designed for individuals over the age of sixty-two and accessible for those
with disabilities or limited mobility.
On October 22, 1997, Zawistoski tripped on a portion of raised sidewalk in
the common area of the complex and sustained a fractured neck. She
instituted this suit against Glick, alleging common law negligence and breach of contract.
She later amended her complaint, adding a count for breach of warranty.
Glick moved for summary judgment on the breach of warranty/breach of contract
After a hearing, the trial court granted Glicks motion, finding
that the lease did not create an express warranty that Glick would ensure
the common areas were in a safe condition. Glick subsequently prevailed at
the trial of the negligence claim. Zawistoski now appeals the grant of
partial summary judgment in favor of Glick on her breach of warranty/breach of
DISCUSSION AND DECISION
Summary judgment is appropriate when the designated evidence demonstrates that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C). The
purpose of summary judgment is to terminate litigation about which there can be
no material factual dispute and which can be resolved as a matter of
law. Schrum v. Moskaluk, 655 N.E.2d 561, 563-64 (Ind. Ct. App. 1995),
trans. denied (1996).
When reviewing a motion for summary judgment, this court applies the same standard
utilized by the trial court, and we resolve any doubt as to a
fact, or an inference to be drawn therefrom, in favor of the party
opposing summary judgment.
Bamberger & Feibleman v. Indianapolis Power & Light Co.,
665 N.E.2d 933 (Ind. Ct. App. 1996). We will affirm a trial
courts grant of summary judgment if it is sustainable on any theory found
in the evidence designated to the trial court. Id.
Zawistoski alleges that the trial court erred in finding no genuine issue of
material fact with regard to whether the lease between her and Glick created
an express warranty by Glick to keep the common areas of Cambridge Square
Apartments safe. At issue is the interpretation of the lease. As
a general rule, the construction or legal effect of a contract is a
question of law to be determined by the court. R.R.S. II Enters.,
Inc. v. Regency Assocs., 646 N.E.2d 56, 60 (Ind. Ct. App. 1995), trans.
denied (citing Gregory & Appel, Inc., v. Duck, 459 N.E.2d 46, 51 (Ind.
Ct. App. 1984)). A lease is to be construed in the same
manner as any other contract. Id. (citing Whiteco Indus., Inc. v. Nickolick,
571 N.E.2d 1337, 1339 (Ind. Ct. App. 1991), trans. denied).
In interpreting a contract, the courts seek to ascertain the intent of the
parties and will accept an interpretation of the contract which harmonizes its provisions
as opposed to one which causes the terms to be conflicting.
Grain & Elevator, Inc. v. Kentland Elevator & Supply, Inc., 593 N.E.2d 1224,
1226 (Ind. Ct. App. 1992). Normally, the intention of parties to a
contract is to be determined from the four corners of the document.
McCae Management Corp. v. Merchants Natl Bank & Trust Co. of Indianapolis, 553
N.E.2d 884, 887 (Ind. Ct. App. 1990), trans. denied. It is expressed
by the clear language thereof. Id.
First, we note that Zawistoski amended her complaint to allege a separate claim
for breach of contract and for breach of warranty. Her argument that
the two causes of action are different is well-taken. As this court
explained: Although closely related, the two actions are not identical. A
warranty is a promise, usually collateral to the principal contract, although not necessarily
so. Nelson v. Marchand, 691 N.E.2d 1264, 1271 n.8 (Ind. Ct. App.
1998). She fails, however, to explain how these two different theories apply
in this case. For both causes of action, Zawistoski relies upon the
same contractual provision: Glicks duty to maintain the common areas. Therefore,
in this case we regard the two causes of action as the same.
A warranty is a promise relating to past or existing fact that incorporates
a commitment by the promisor that he will be responsible if the facts
are not as manifested. Johnson v. Scandia Assocs., Inc., 717 N.E.2d 24,
28 (Ind. 1999) (citing 1 Samuel Williston, A Treatise on the Law of
Contracts § 1:2 (4th ed. 1990)). Zawistoski contends that the lease created
an express warranty on the part of Glick to ensure the safety of
its residents. She relies on paragraph 10(a)(2), which states: The Landlord agrees
to . . . maintain the common areas and facilities in a safe
condition. Record at 125. She argues that the plain meaning of
this language is that the common areas are, and at all times will
remain, safe. She emphasizes that Cambridge Square is a development designed for
and marketed to senior citizens and notes that much of the marketing literature
highlights that the complex is inordinately accessible and caters to the needs and
concerns of the elderly. Thus, she argues, lessees entering into lease agreements
with Glick may be doing so in reliance on this added safety and
accessibility. She contends that the lease should be construed to honor this
expectation and that to construe it otherwise would be to interpret the contract
inconsistent with its purpose.
Glick argues that reading the lease as a whole leads to the conclusion
that the provision upon which Zawistoski relies was intended merely to express Glicks
common law duty to its lessees. We agree with Glick.
At common law, the landlord has a duty of reasonable care that the
common ways and areas are maintained in a reasonably fit and safe condition.
Frost v. Phenix, 539 N.E.2d 45, 48 (Ind. Ct. App. 1989) (citing
LaPlante v. LaZear, 31 Ind. App. 433, 68 N.E. 312 (1903); Coleman v.
DeMoss, 144 Ind. App. 408, 246 N.E.2d 483 (1969); Rossow v. Jones, 404
N.E.2d 12 (Ind. Ct. App. 1980)). Read in context, Section 10.2 mirrors
this duty. It states:
The Landlord agrees to:
. . . .
(2) maintain the common areas and facilities in a safe condition;
. . . .
(4) maintain all equipment and appliances in safe and working order;
(5) make necessary repairs with reasonable promptness;
. . . .
The Tenant agrees to:
. . . .
(5) give the Landlord prompt notice of any defects in the plumbing, fixtures,
appliances, heating and cooling equipment or any other part of the unit or
Record at 125. Paragraph 10 obligates Glick both to maintain the common
areas and to make necessary repairs with reasonable promptness. These are stated
as co-equal obligations, neither of more prominence than the other. The same
paragraph requires the tenant to give notice of defects. Thus, the contract
contemplates that facilities in the common area will, from time to time, require
repairs. When they do so, Glick promises to repair them with reasonable
promptness. The contrary conclusion creates for Glick the impossible burden of maintaining
the common areas in such a manner that no one could ever be
injured. The trial court correctly concluded that such an interpretation could not
have been intended. Further, another provision indicates Glicks desire to limit its
27. Landlords Liability: Except for intentional or negligent acts
or omissions by Landlord or its agents, Landlord shall not be liable to
Tenant for damage of any kind, or for any cause whatsoever, either by
fire, water, steam, gas, electricity or heat, or the use thereof, or by
any failure or malfunction upon the part of any machinery or equipment, or
any combination of said conditions, on said premises or adjacent thereto, to the
person or property of the Tenant or persons claiming by, through or under
Record at 131. The inclusion of this provision indicates the parties intent
that Glick would not be an insurer of its lessees, including Zawistoski.
The plain and unambiguous language of the contract expresses Glicks recognition of its
common law duty as a lessor.
Zawistoskis interpretation of paragraph 10(a)(2) defies common experience and renders meaningless other provisions
of the contract. For instance, the provision requiring Glick to repair defects
and the provision requiring tenants to notify Glick of defects would both be
superfluous if Glick was warranting that such defects would never exist. We
make all attempts to construe the language in a contract so as not
to render any words, phrases, or terms ineffective or meaningless.
Dev. Corp. v. Site Contractors, Inc., 716 N.E.2d 91, 100 (Ind. Ct. App.
1999). Thus, we cannot accept Zawistoskis interpretation.
Zawistoski urges us to apply a higher standard in this case, because it
involves elderly renters. She contends that Glick is not providing the goods
it advertises, by stating that it caters to the needs of the elderly,
but not offering anything beyond the common law duty of any landlord.
She argues that elderly lessees may pay more for this promise of extra
service, but get nothing in return. There is, however, no evidence that
Zawistoski gave consideration to enter into a Cambridge lease beyond that which she
would have given to rent elsewhere. Further, Zawistoskis argument overlooks the fact
that she may indeed have received the benefit of a rental unit and
common areas designed to be accessible by those with decreased mobility, and she
does not claim that Glick breached these terms of the contract. We
decline Zawistoskis invitation to read into the contract terms to which the parties
did not agree.
Zawistoski also analogizes to insurance law and refers to the lease agreement here
as a contract of adhesion, entered into by parties with vastly different bargaining
power. Glick is in the business of managing and leasing apartments.
We see no reason to apply insurance principles here. While it may
be true that the parties were in a somewhat unequal bargaining position, this
is true in many contractual relationships. Further, in this case, Zawistoski certainly
had the option of leasing an apartment elsewhere if she did not like
the terms of the lease with Glick. Moreover, we reject Zawistoskis attempt
to portray people over the age of sixty-two as feeble, infirm, and requiring
assistance with entering into a basic contract. The legal presumption of competence
does not disappear as one ages, and adults should be entitled to enter
into contracts until there is cause to believe they no longer have the
capacity to do so.
Finally, Zawistoski notes that express warranties arise by operation of law in the
context of the sale of consumer goods. She urges this court to
apply similar protections to lease agreements. Courts in other jurisdictions have found
no reason to adopt the warranties available in the sale of goods to
See, e.g., Curry v. Davis, 661 N.Y.S.2d 359, 360 (App.
Div. 1997) (implied and express warranty causes of action properly dismissed because lessor
did not sell goods to lessee). Jurisdictions which have recognized similar warranties
in conjunction with the leasing of real estate have done so statutorily.
See, e.g., Francais v. Cusa Bros. Enters., Inc., 385 N.Y.S.2d 183, 184 (App.
Div. 1976) (recognizing statutory implied warranty of fitness for use in residential lease).
We agree with the trial court that there is no genuine issue of
material fact. The parties lease did not create a warranty of safety
for the lessees of Cambridge Square.
BAKER, J., and RILEY, J., concur.
In the proper case, there is no doubt that both
theories could be maintained. For instance, if the parties had executed a
broad-form lease, with no specific duties or covenants, and Glick made a collateral
warranty, the two theories of breach of contract and breach of warranty would
be distinct. This is not the case here, though, and Zawistoski relies
on the same contractual language to support both theories.