Landlord Liability for Tenant Personal Injury under Ohio Law

Author: LegalEase Solutions

QUESTIONS PRESENTED

Under what circumstances is a landlord liable to a residential tenant in tort for injuries suffered to the tenant inside the leased premises? And under the assumed facts set forth below, does the tenant have a right of recovery against the landlord for her personal injuries suffered as a result of this incident?

SHORT ANSWERS

A landlord shall be liable to a residential tenant in tort for injuries suffered to the tenant inside the leased premises, if the landlord has a duty under a statute, and fails to perform that duty constituting negligence per se.  In addition, the tenant must prove that the failure to repair was the proximate cause of the injury, the landlord was in possession and control of the premises, and the landlord was notified or informed of the defect.

On the assumed facts, the tenant does have a right of recovery against the landlord for her personal injuries.

SUMMARY OF FACTS

Tenant resides on 2nd floor of duplex.  There is only one way of ingress and egress, which is a cement staircase in the back of the building.  The steps end at a small landing by the entry door to the second floor apartment.  There is one step up from the landing to the door.  There is an overhang over the landing, which comes off from the roof, which primarily consists of the gutter.

The gutter had been clogged for some time, and the tenant has repeatedly complained to landlord about the problem.  When it rained, water cascaded down onto the step and down the landing.  The water would on occasion seep under the door and accumulate on the linoleum floor by the door inside the apartment.  In addition, the weather strip by the door had buckled over time.  The tenant also had informed landlord on several occasions of this problem. Although he promised to do so many times, landlord never got around to repairing the problem.  Landlord even refused tenants offer to borrow a ladder to try to clean out the gutter. On the night in question, tenant had gone out and came home around 10:30 p.m.  It had been raining throughout the week and it was raining hard when tenant came home.  The water was coming down off the gutter when tenant entered apartment.  When tenant arrived home, the floor inside the apartment by the door was wet. Tenant used towels to wipe up the floor inside the apartment. About an hour later tenant went to the door to let the cat in.  As she approached the door, she slipped on a new puddle of water that had accumulated on the linoleum floor since the time she had wiped up the water an hour earlier. She fell forward and reacted by putting her hands out to brace her fall.  As she fell forward, both of her hands hit the window.  The glass shattered and both of her hands went through the window causing her injury.

DISCUSSION

OVERVIEW OF TENANT’S CAUSE OF ACTION AGAINST LANDLORD.

The case of Shroades v. Rental Homes, Inc., 68 Ohio St. 2d 20 (Ohio 1981), concisely articulates the tenant’s cause of action:

A violation of a statute which sets forth specific duties constitutes negligence per se … However, in addition to negligence per se, proximate cause for the injuries sustained must be established…Also it must be shown that the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the landlord.

Shroades at 25-26.

Therefore, to successfully impose liability upon the landlord, there must be (i) a statute imposing a duty, (ii) a breach of that duty constituting negligence per se, (iii) proximate cause and (iv) notice.

STATUTE IMPOSES DUTY TO REPAIR ON LANDLORD. 

Ohio Revised Code, Title 53. Real Property. Chapter 5321. Landlord & Tenants This statute lays down the duties and obligations of both tenants and landlords. Section 5321.04 lays down the obligations of landlord:

  • 5321.04. Obligations of landlord
  • A landlord who is a party to a rental agreement shall do all of the following:
    • Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety;
    • Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition;
    • Keep all common areas of the premises in a safe and sanitary condition;
    • Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances, and elevators, supplied or required to be supplied by him.

The statute clearly imposes an obligation on the landlord to make all repairs, to keep the premises in a fit and habitable condition, to keep common areas safe and sanitary, and to maintain plumbing and sanitary fixtures. In Shroades, supra at 22, the court held that R.C. 5321.04 clearly imposes on landlords a duty to repair. Stancil v. K.S.B. Inv. & Management Co., 62 Ohio App. 3d 765, 771 (Ohio Ct. App. 1991).

The gutter pipe in this case clearly falls in the definition of plumbing and sanitary fixtures and as such was required by statute to be maintained in good working condition and repaired when necessary.

LANDLORD’S FAILURE TO REPAIR CONSTITUTES NEGLIGENCE PER SE.

In the case of Sikora v. Wenzel, 88 Ohio St. 3d 493 (Ohio 2000), the court said:

the statutory requirement is stated with sufficient specificity to impose negligence per se. It is “fixed and absolute, the same under all circumstances and is imposed upon” all landlords. Ornella v. Robertson (1968), 14 Ohio St. 2d 144, 150, 43 Ohio Op. 2d 246, 249, 237 N.E.2d 140, 143. Accordingly, we conclude that the statute requires landlords to conform to a particular standard of care, the violation of which constitutes negligence per se.

Sikora at 498.

In Shroades, supra at 26, the court held that the landlords failure to fulfill the duty to repair constituted negligence per se.

Considering the facts in this situation, the landlord has also failed to fulfill his duty to repair as imposed by the statute.  Because the landlord did not repair the faulty gutter, he is negligent per se.

THE FAULTY GUTTER WAS THE PROXIMATE CAUSE OF THE TENANT’S INJURY. 

It is established that the Landlord is negligent per se, but the failure to repair must have also proximately caused the tenant’s injury.

In Shroades, supra at 26, the court said that “the tenant’s intervening act of using the stairs, which was reasonably foreseeable by the landlord, did not break the causal connection between the landlord’s negligence per se and the injury. Thus, the jury’s finding that the tenant’s injuries were proximately caused by the landlord’s negligence was reasonable.”

In this case, the tenant’s injuries were due to slipping on the wet floor and crashing her hands on the door’s glass window.  The proximate cause of the fall was the water that gushed in due to the leaking gutter pipe.  The tenant’s walking over the water was reasonably foreseeable by the landlord and did not break the chain of causation.  Though the tenant was injured within her premises, the proximate cause of her injury was the water that gushed into her apartment from the faulty un-repaired gutter pipe. The landlord’s negligence to repair the pipe was the primary reason and proximate cause for the tenant’s personal injuries.

LANDLORD HAD NOTICE OF THE FAULTY GUTTER

In Rutsky v. Santa Lucia, 34 Ohio App 317 (1929), the failure of a landlord to keep his promise to make repairs was held to be the basis for his liability for personal injuries to a tenant.  It appeared that a ceiling had been repaired shortly before the tenant moved in, but that water from pipes located in another suite rented by the landlord overhead continued seeping through the ceiling.  The tenant called this fact to the attention of the landlord several times, but, upon his failure to do anything about it, the tenant was finally injured by the fall of the ceiling.  The court, while recognizing that a landlord is not ordinarily liable for accidents happening to tenants on premises of which the landlord has parted with possession, stated that there nevertheless was a basis for liability in this case since the landlord had charge of the repairs, had undertaken repairs, and, finally, had repeatedly promised repairs.

In this situation, the landlord’s failure and negligence came in spite of the tenants’ constant reminders and notices that the gutter pipe required repair.  The Landlord knew that water leaked on to the floor in front of the glass door.  Although the landlord consistently promised to repair the pipe he never did so.  He even refused to allow let the tenant to clean the pipe when she requested to borrow a ladder.  The landlord clearly had notice of the faulty pipe, that it remained un-repaired, and that it leaked water on the tenant’s premises.

LANDLORD HAD POSSESSION AND CONTROL OF THE FAULTY GUTTER.

The landlord cannot defend with the argument that he did not have a statutory duty because the gutter was not in his control.  The facts indicate that the gutter pipe was outside of the tenant’s premises and clearly within the possession and control of the landlord.  This is further evidenced by the tenant’s request and landlord’s refusal to allow the tenant to fix the gutter by herself.

“OPEN AND OBVIOUS” DEFENSE SHOULD BE REJECTED. 

The landlord cannot claim that the gutter leak situation was an open and obvious danger situation such that the tenant should have herself been careful of the water.  The case of Robinson v. Bates, 160 Ohio App. 3d 668 (2005) says that the open-and-obvious danger doctrine does not abrogate a landlord’s statutory duty to keep leased premises in a fit and habitable condition.

LANDLORD’S IMMUNITY UNDER COMMON LAW NOT APPLICABLE BECAUSE DUTY IMPOSED BY STATUTE. 

Prior to the enactment of Chapter 5321, tenants had difficulty recovering for injuries sustained because of defective rental premises.  At common law, a landlord, not in possession and control of the rental property, was not liable for injuries occurring on the premises.  Burdick v.. Cheadle 26 Ohio St. 393 (1875); Shindelbeck v. Moon 32 Ohio St. 264 (1877); Stackhouse v. Close 83 Ohio St. 339 (1911); Berkowitz v. Winston 128 Ohio St. 611 (1934); Ripple v. Mahoning Natl. Bank 143 Ohio St. 614 (1944); Cooper v. Roose 151 Ohio St. 316 (1949); Brown v. Cleveland Baseball Co., 158 Ohio St. 1 (1952); Pitts v. Cincinnati Metro. Housing Auth., 160 Ohio St. 129 (1953).

Case law developed a test under which a plaintiff-tenant could not recover unless the landlord had a right of control to the exclusion of any control by the tenant. Ripple v. Mahoning Natl. Bank, supra. Furthermore, unless the landlord had the requisite control, the courts were unwilling to impose tort liability even when there was a contractual agreement for the landlord to make repairs. Cooper v. Roose, supra.

However, there is common law support in Ohio for holding the landlord liable for breach of a duty to repair. The courts have stated that a landlord could be held liable if special circumstances were proven which established his liability.  Shindelbeck v. Moon, supra at page 273. Under this proposition, a special circumstance could be a duty imposed by statute.

In the current case there may not be a covenant to repair but the landlord definitely had a duty under statute to keep the tenanted and areas of common usage under good repair.

An overwhelming majority of states have abolished, either in whole or part, the traditional immunity enjoyed by landlords. The Restatement of Property 2d, Landlord and Tenant, Section 17.6, provides, at page 232, that:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property * * * by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:

(1) an implied warranty of habitability; or

(2) a duty created by statute or administrative regulation.

Though earlier courts abided by the traditional common law rule that gave landlord’s immunity from tort action, more recently courts have unanimously come out in favor of imposing landlords also with tort liability.

In Thrash v. Hill, 63 Ohio St. 2d 178 (1980), the Ohio Supreme court refused to impose tortious liability upon a landlord. But in his dissenting opinion J. Sweeney, said, that upon close scrutiny of Ohio case law it becomes apparent that the underpinnings of the common law rules have been extinguished by the General Assembly, there is no rational justification, legally, morally or economically, for singling out landlords for such unique treatment under the law. Thrash, supra has now been overruled.

CONCLUSION

In conclusion we can safely say that the tenant has a strong case for succeeding in her action in tort against the landlord. All surrounding circumstances support her case. The statute in ORC Section 5321.04 imposes a duty to repair upon the landlord; the landlord failed to repair the gutter constituting negligence per se; the faulty gutter and leaking water proximately caused the slip and injury; and the landlord was placed on notice of the faulty gutter prior to the injury because of the tenant’s repeated requests to remedy the leak.  Therefore, the landlord is liable to the tenant for the personal injury.