Amputated Toe Not Fault Of Landlord, Court Agrees With Jury

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A Maricopa man evicted for not paying rent after his toe was amputated following a 2014 injury caused by a crack in the bedroom floor cannot hold his landlord responsible, according to an Arizona Court of Appeals opinion released last month.

Ramon Ibarra contends landlord Edward Gastelum was liable for an injury Ibarra suffered in the apartment he and his family lived in for nearly 25 years. Over time, a crack developed in the bedroom floor.

As the crack grew with time, Ibarra tried unsuccessfully to fill the crack. It was reportedly two inches wide with sharp edges when Edward Gastelum purchased the complex in October 2014.

In December 2014, Ibarra stubbed the big toe of his left foot on the edge of the crack. Despite several visits to a wound clinic, part of the toe had to be amputated in June 2015.

That same summer, Ibarra was evicted for failing to pay rent. He then sued Gastelum in 2016, alleging he told Gastelum prior to the injury about “some of the problems” with his apartment.

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A three-day jury trial in May 2019 included conflicting testimony on whether Ibarra specifically informed the new owner of the crack. The jury ruled in favor of the landlord.

Ibarra then took the matter to the Arizona Court of Appeals, arguing that the superior court judge should have read a “negligence per se” instruction to the jurors instead of a simple negligence instruction.

The instruction given to the jurors explained that if they believed Gastelum “had notice of the unreasonably dangerous conditions and failed to use reasonable notice to prevent harm under the circumstance, then Edward Gastelum was negligent.”

Ibarra, however, argued during the trial for a negligence per se jury instruction, citing Arizona’s landlord-tenant law. That statute states landlords shall make all repairs “and do whatever is necessary to put and keep the premises in a fit and habitable condition.”

If the jury had found Gastelum was negligent in violating that statute, they could determine whether the negligence “was a cause of injury” to Ibarra. But the Maricopa County judge declined to give Ibarra’s requested instruction, noting the landlord-tenant law doesn’t mention personal injury claims.

In a unanimous opinion released July 23, the Arizona Court of Appeals -Division One- found no error by the lower court’s handling of the case.

“The jury instructions given adequately addressed negligence and premises liability, including a landlord’s duty of care to a tenant,” the opinion reads. “Because Ibarra has shown no error, the judgment is affirmed.”

Ibarra has until Aug. 24 to file a petition for review to the Arizona Supreme Court.