Mann v. Northgate Investors, L.L.C.

[Cite as Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175, 2014-Ohio-455.]

MANN, APPELLEE, v. NORTHGATE INVESTORS, L.L.C., D.B.A. NORTHGATE

APARTMENTS, APPELLANT.

[Cite as Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175,

2014-Ohio-455.]

Landlord and tenant—A landlord owes guests of a tenant the same duties under

R.C. 5321.04(A)(3) that the landlord owes to the tenant—Lighting in

common areas.

(No. 2012-1600—Submitted April 24, 2013—Decided February 12, 2014.)

CERTIFIED by the Court of Appeals for Franklin County,

No. 11AP-684, 2012-Ohio-2871.

____________________

PFEIFER, J.

{¶ 1} The issue in this case is whether a landlord owes the statutory duty

under R.C. 5321.04(A)(3) to “[k]eep all common areas of the premises in a safe

and sanitary condition” to a tenant’s guest properly on the premises. We hold

today that a landlord does owe to a tenant’s guest the statutory duties under R.C.

5321.04(A)(3) and that a breach of that duty constitutes negligence per se.

Factual and Procedural Background

{¶ 2} On June 15, 2007, plaintiff-appellee, Lauren Mann, then 16 years

old, visited a friend, Michelina Markiewicz, who was a tenant at an apartment

building owned by defendant-appellant, Northgate Investors, L.L.C. Mann had

entered the building at around noon that day, and left her friend’s second-floor

apartment in the evening at around 11:00 P.M. Mann had to walk down two sets

of stairs (with a landing between them) to exit the building. She testified that the

hallway and stairway were dark because it was night and there was no lighting—

the existing lighting fixtures were inoperable. Despite the darkness, she decided

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to proceed down the stairs. She successfully descended the two flights of stairs,

but after stepping off the last step—and thinking there might be another step—she

stumbled forward through a glass panel adjacent to the glass exit door, suffering

injuries.

{¶ 3} Mann filed suit against Northgate on October 5, 2010, alleging in

her complaint that Northgate had “negligently failed to maintain adequate lighting

for safe ingress and egress to said premises during nocturnal hours, thereby

creating a danger to residents and guests.” Northgate filed a motion for summary

judgment, arguing that there was no evidence that it had breached a duty of care

to Mann. It asserted that it owed Mann the duty it would owe an invitee, a duty of

ordinary care in maintaining its property. Northgate further argued that darkness

is an open and obvious danger and that there is no duty of a premises owner to

warn an invitee of open and obvious dangers, since those dangers are so obvious

that business owners may reasonably expect their invitees to discover the hazard

and take appropriate actions to protect themselves against it.

{¶ 4} Mann countered that Ohio’s Landlord-Tenant Act, in particular,

R.C. 5321.04, imposes a duty on landlords to make all necessary repairs and to do

whatever is necessary to keep the premises in a fit and habitable condition, to

keep common areas of the premises safe, and to maintain electrical systems and

lighting fixtures.

{¶ 5} The trial court granted summary judgment to Northgate, holding

that R.C. 5321.04 “was intended to establish the duties between landlords and

tenants” and that since Mann was not a tenant but a business invitee, Northgate

“only owed [her] a duty of ordinary care.” (Emphasis sic.) The court further held

that the darkness on the stairs was open and obvious and that the duty of ordinary

care “is negated when the hazard posed to the invitee is one that is open and

obvious.” Finally, the court held that in addition to her failure to demonstrate that

Northgate owed her a duty, Mann also had failed to show evidence of causation.

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{¶ 6} Mann appealed, and the Tenth District Court of Appeals reversed

the trial court. 2012-Ohio-2871, 973 N.E.2d 772 (10th Dist.). The appellate court

held that tenants’ guests are entitled to the protections of R.C. 5321.04, that a

landlord’s violation of R.C. 5321.04 constitutes negligence per se, and that the

open-and-obvious doctrine does not apply when the landlord is negligent per se.

Id. at ¶ 14, 19, and 21. The court further held that Mann had offered evidence of

causation sufficient to create a genuine issue of fact. Id. at ¶ 28.

{¶ 7} The appellate court certified a conflict to this court recognizing

that its opinion conflicted with that of the Ninth District Court of Appeals in

Shumaker v. Park Lane Manor of Akron, Inc., 9th Dist. Summit No. 25212, 2011-

Ohio-1052, regarding the applicability of R.C. 5321.04(A)(3) to a tenant’s guest.

This court agreed that a conflict exists and ordered briefing on the following

issue:

Whether landlord owes the statutory duties of R.C.

5321.04(A)(3) to a tenant’s guest properly on the premises but on

the common area stairs at the time of injury?

133 Ohio St.3d 1463, 2012-Ohio-5149, 977 N.E.2d 692.

Law and Analysis

{¶ 8} In 1974, the General Assembly enacted the Ohio Landlord-Tenant

Act, R.C. Chapter 5321. “The Act codifies the law of this state regarding rental

agreements for residential premises, and governs the rights and duties of both

landlords and tenants.” Vardeman v. Llewellyn, 17 Ohio St.3d 24, 26, 476 N.E.2d

1038 (1985).

{¶ 9} R.C. 5321.04(A) sets forth the obligations of a landlord who is a

party to a rental agreement. Among other duties, a landlord must “[m]ake all

repairs and do whatever is reasonably necessary to put and keep the remises in a

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fit and habitable condition,” R.C. 5321.04(A)(2), and “[k]eep all common areas of

the premises in a safe and sanitary condition,” R.C. 5321.04(A)(3).

{¶ 10} The Landlord-Tenant Act “changed the previous common law

relationship of landlords and tenants under residential rental agreements.”

Shroades v. Rental Homes, Inc., 68 Ohio St.2d 20, 21-22, 427 N.E.2d 774 (1981).

Shroades explained that “in light of the previous common law immunity of

landlords, and in recognition of the changed rental conditions and the definite

trend to provide tenants with greater rights,” the General Assembly enacted the

law in “an attempt to balance the competing interests of landlords and tenants.”

Id. at 24-25.

{¶ 11} Shroades was the first case to recognize that a landlord could be

liable in tort for injuries resulting from the landlord’s failure to meet the

obligations imposed by R.C. 5321.04:

In light of the public policy and drastic changes made by

the statutory scheme of R.C. Chapter 5321, we hold that a landlord

is liable for injuries, sustained on the demised residential premises,

which are proximately caused by the landlord’s failure to fulfill the

duties imposed by R.C. 5321.04. We conclude that the General

Assembly intended both to provide tenants with greater rights and

to negate the previous tort immunities for landlords.

Id. at 25.

{¶ 12} In Shroades, this court held that the landlord had failed to meet the

statutory requirement of keeping the premises in a fit and habitable condition.

Reasoning that “[a] violation of a statute which sets forth specific duties

constitutes negligence per se,” the court held that the landlord’s failure to abide

by R.C. 5321.04(A)(2) constituted negligence per se. The court made clear that a

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finding of negligence per se does not necessarily result in liability: “proximate

cause for the injuries sustained must be established.” Id. at 25. Further, a

plaintiff tenant would also have to show 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.” Id. at 26.

{¶ 13} In Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d

414, 644 N.E.2d 291 (1994), syllabus, this court held that a landlord’s common-

law and statutory obligations extend to guests of a tenant: “A landlord owes the

same duties to persons lawfully upon the leased premises as the landlord owes to

the tenant.”

{¶ 14} In Shump, Sandra Burnside, a guest of a tenant, died from smoke

inhalation and/or carbon monoxide poisoning from a fire in her friend’s

apartment. The fire had started on the first floor of the apartment, and the

evidence suggested that Burnside became aware of the fire only when the smoke

detector on the second floor of the two-story apartment was activated. Burnside’s

estate filed a wrongful-death claim against the landlord, alleging that the landlord

had failed to install a smoke detector on the first floor of the apartment, contrary

to a city ordinance. The trial court granted summary judgment to the landlord,

holding that Burnside was a licensee and that the landlord owed to Burnside only

a duty to refrain from willful and wanton conduct, which the estate had failed to

prove. The appellate court affirmed that part of the trial court’s holding.

{¶ 15} This court reversed, rejecting the appellate court’s holding that a

landlord’s duty to a tenant’s guest should be governed by the common-law

classifications of trespasser, licensee, and invitee. The court held that those

classifications “determine the legal duty that a tenant owes others who enter upon

rental property that is in the exclusive control of the tenant” and “do not affect the

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legal duty that a landlord owes a tenant or others lawfully upon the leased

premises.” (Emphasis sic.) Shump, 71 Ohio St.3d at 417, 644 N.E.2d 291.

{¶ 16} Shump cited longstanding common law that courts should not

distinguish between the duties that a landlord owes a tenant and the duties a

landlord owes to other people lawfully upon the leased premises.

“ ‘It is the well settled general rule that the duties and liabilities of

a landlord to persons on the leased premises by the license of the

tenant are the same as those owed to the tenant himself. For this

purpose they stand in his shoes. * * * The guest, servant, etc., of

the tenant is usually held to be so identified with the tenant that

this right of recovery for injury as against the landlord is the same

as that of the tenant would be had he suffered the injury.’ ”

[Caldwell v. Eger, 8 Ohio Law Abs. 47 (8th Dist.1929)], quoting

16 Ruling Case Law (1917) 1067, Section 588.

Id. at 419.

{¶ 17} This court held that R.C. Chapter 5321 does not alter the “well-

settled common-law principle” of a landlord’s duty to a tenant’s guest, because

statutes are presumed to embrace the common law extant at their enactment.

“Statutes are to be read and construed in the light of and with

reference to the rules and principles of the common law in force at

the time of their enactment, and in giving construction to a statute

the legislature will not be presumed or held, to have intended a

repeal of the settled rules of the common law unless the language

employed by it clearly expresses or imports such intention.”

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(Emphasis added.) State ex rel. Morris v. Sullivan (1909), 81 Ohio

St. 79, 90 N.E. 146, paragraph three of the syllabus.

Id.

{¶ 18} Thus, the court concluded that as common-law protections

extended to a tenant’s guests, the Landlord-Tenant Act’s protections would

extend to guests.

Thus, the obligations imposed upon a landlord under R.C. 5321.04

would appear to extend to tenants and to other persons lawfully

upon the leased premises. R.C. 5321.12 states: “In any action

under Chapter 5321. of the Revised Code, any party may recover

damages for the breach of contract or the breach of any duty that is

imposed by law.” (Emphasis added.)

(Emphasis sic.) Shump, 71 Ohio St.3d at 420, 644 N.E.2d 291.

{¶ 19} Since a landlord owes a tenant’s guest the same duty that the

landlord owes the tenant, it only follows that the duty a landlord owes a tenant

under R.C. 5321.04(A)(3) is also owed to the tenant’s guest. But not every court

addressing the issue has come to that conclusion. The case below was certified to

this court as being in conflict with Shumaker v. Park Lane Manor of Akron, 9th

Dist. Summit No. 25212, 2011-Ohio-1052. That court found that “ ‘a social

guest, injured in an area not in the exclusive control of the tenant, is owed a duty

of care by the landlord no higher than that owed to a licensee,’ ” citing Rios v.

Shauck, 9th Dist. Lorain No. 97CA006753, 1998 WL 289692, at *1 (June 3,

1998). Shumaker at ¶ 12. Shumaker held that this court’s extension of a

landlord’s responsibilities to a tenant’s guest did not apply because “Shump is

limited to injuries occurring ‘upon the leased premises.’ ” Id.

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{¶ 20} Shump does state, as Shumaker points out, that “the obligations

imposed upon a landlord under R.C. 5321.04 would appear to extend to tenants

and to other persons lawfully upon the leased premises.” (Emphasis sic.) Shump,

71 Ohio St.3d at 420, 644 N.E.2d 291. But “lawfully upon the leased premises” is

not limiting language—the decedent in Shump happened to be in the tenant’s

apartment, not in a common area, when she died. Notably, Shump cited

Stackhouse v. Close, 83 Ohio St. 339, 94 N.E. 746 (1911), a case involving

injuries to a tenant’s guest suffered due to the malfunctioning of a common-area

elevator, for the proposition that “a landlord may be held liable to a tenant’s guest

for the breach of a statutory duty imposed upon the landlord.” Shump, 71 Ohio

St.3d at 420, 644 N.E.2d 291. The court concluded regarding Stackhouse, “We

reiterate that holding today.” Id.

{¶ 21} Further, Shump adopted the Restatement of Torts section stating

that in common areas, the landlord owes the same duty to the tenant’s guest as it

owes to the tenant. In the syllabus of Shump, this court approved and adopted 2

Restatement of the Law 2d, Torts, Sections 355 to 362 (1965). Section 360

addresses the liability of landlords in common areas:

A possessor of land who leases a part thereof and retains in

his own control any other part which the lessee is entitled to use as

appurtenant to the part leased to him, is subject to liability to his

lessee and others lawfully upon the land with the consent of the

lessee or a sublessee for physical harm caused by a dangerous

condition upon that part of the land retained in the lessor’s control,

if the lessor by the exercise of reasonable care could have

discovered the condition and the unreasonable risk involved

therein and could have made the condition safe.

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{¶ 22} Finally, Shump recognized that R.C. Chapter 5321 does not limit to

tenants the ability to bring a claim based upon a statutory violation:

R.C. 5321.12 states: “In any action under Chapter 5321. of the

Revised Code, any party may recover damages for the breach of

contract or the breach of any duty that is imposed by law.”

(Emphasis added.)

Shump, 71 Ohio St.3d at 420, 644 N.E.2d 291.

{¶ 23} We thus conclude that Shump should in no way be interpreted so as

to prevent a tenant’s guest from benefiting from the protections of R.C.

5321.04(A) simply because he or she is in a common area of the leased premises.

A landlord owes to a tenant’s guest the same duty that it owes a tenant in regard

to R.C. 5321.04(A)(3): to keep the common area in a safe and sanitary condition.

{¶ 24} The question remains as to the legal significance of a failure of a

landlord to meet the obligations of R.C. 5321.04(A)(3). If a violation of R.C.

5321.04(A)(3) constitutes negligence per se, a landlord may not rely upon the

open-and-obvious doctrine to escape liability. In Robinson v. Bates, 112 Ohio

St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, this court held that a landlord’s

failure to meet the statutory duty under R.C. 5321.04(A)(1) negates the open-and-

obvious doctrine.

{¶ 25} After Shroades, this court revisited negligence per se in relation to

R.C. 5321.04 in Sikora v. Wenzel, 88 Ohio St.3d 493, 727 N.E.2d 1277 (2000).

The plaintiff, Aaron Sikora, was a guest of a tenant who leased a condominium

owned by the defendant, Tom Wenzel; an outdoor deck attached to the

condominium collapsed, injuring Sikora. Sikora sued Wenzel, alleging that he

was negligent per se for a violation of R.C. 5321.04(A)(1), which requires

landlords to “[c]omply with the requirements of all applicable building, housing,

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health, and safety codes that materially affect health and safety.” Wenzel, the

second owner of the condominium, had no knowledge of the deck’s design defect,

which the previous owner had known about. Still, the court of appeals found that

Wenzel was strictly liable for a violation of R.C. 5321.04(A)(1) and that the

Shroades notice requirement was inapplicable.

{¶ 26} This court set forth the three different ways that courts view

statutory violations of public-safety laws in negligence cases:

Courts view the evidentiary value of the violation of statutes

imposed for public safety in three ways: as creating strict liability,

as giving rise to negligence per se, or as simply evidence of

negligence. See, generally, Browder, The Taming of a Duty—The

Tort Liability of Landlords (1982), 81 Mich.L.Rev. 99. These are

three separate principles with unique effects upon a plaintiff’s

burden of proof and to which the concept of notice may or may not

be relevant.

Sikora at 495.

{¶ 27} This court rejected the idea that R.C. 5321.04(A)(1) is a strict-

liability statute, that is, that a defendant would be liable per se for a statutory

violation regardless of any defenses or excuses, including lack of notice.

Considering the general reluctance among courts to impose strict

liability in this context, the wording of the statute fails to convince

us that the General Assembly intended to create strict liability upon

a violation of this statutory requirement. Absent language

denoting that liability exists without possibility of excuses, we are

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unpersuaded that the intent behind this statute was to eliminate

excuses and impose strict liability.

Id. at 497-498.

{¶ 28} The more common question—and one that arises in the case before

us—is whether a statutory violation will be considered as evidence of negligence

or whether it will support a finding of negligence per se. The words of the statute

tell the tale—whether a statutory violation gives rise to negligence per se

“depends upon the degree of specificity with which the particular duty is stated in

the statute.” Id. at 496.

{¶ 29} When the statute sets forth a general, abstract description of a duty,

a violation thereof can be considered as evidence of negligence, but a violation

does not of itself conclusively demonstrate the breach of a duty. If a statute sets

forth a positive and definite standard of care, a violation of the statute constitutes

negligence per se, and that violation conclusively proves that the defendant has

violated a duty to the plaintiff:

[W]here a statute sets forth “ ‘a positive and definite standard of

care * * * whereby a jury may determine whether there has been a

violation thereof by finding a single issue of fact,’ ” a violation of

that statute constitutes negligence per se. Chambers v. St. Mary’s

School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198, 201,

quoting Eisenhuth v. Moneyhon, supra, 161 Ohio St. [367] 374–

375, 53 O.O. [274] 278, 119 N.E.2d [440] 444 [(1954)]. In

situations where a statutory violation constitutes negligence per se,

the plaintiff will be considered to have “conclusively established

that the defendant breached the duty that he or she owed to the

plaintiff.” Chambers, id. In such instances, the statute “serves as a

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legislative declaration of the standard of care of a reasonably

prudent person applicable in negligence actions.” Thus the

“reasonable person standard is supplanted by a standard of care

established by the legislature.” 57A American Jurisprudence 2d,

supra, at 672, Negligence, Section 748.

Sikora, 88 Ohio St.3d at 496, 727 N.E.2d 1277.

{¶ 30} This court determined in Sikora that the statutory requirement set

forth in R.C. 5321.04(A)(1) was not so general and abstract as to merely

constitute evidence of negligence.

Rather, we believe 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 O.O.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, 88 Ohio St.3d at 498, 727 N.E.2d 1277.

{¶ 31} Further, the court reaffirmed that “a landlord’s violation of the

duties imposed by * * * R.C. 5321.04(A)(2) constitutes negligence per se.” Id.

{¶ 32} We find nothing in the degree of specificity involved in the statutes

to distinguish the requirement in R.C. 5321.04(A)(2) to “do whatever is

reasonably necessary to put and keep the premises in a fit and habitable

condition” from the requirement in R.C. 5321.04(A)(3) to “[k]eep all common

areas of the premises in a safe and sanitary condition.” Like the statutory

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requirements under R.C. 5321.04(A)(1) and (2), R.C. 5321.04(A)(3)’s statutory

requirement is “ ‘fixed and absolute, the same under all circumstances and is

imposed upon’ all landlords.” Sikora at 498, quoting Ornella v. Robertson, 14

Ohio St.2d 144, 150, 237 N.E.2d 140 (1968). We thus conclude that like

violations of R.C. 5321.04(A)(1) and (A)(2), a violation of R.C. 5321.04(A)(3)

constitutes negligence per se.

Conclusion

{¶ 33} We reaffirm today that a landlord owes to a tenant’s guest the same

duty that the landlord owes a tenant. Thus, a landlord owes a tenant, and

therefore the tenant’s guest, the duty to “[k]eep all common areas of the premises

in a safe and sanitary condition,” pursuant to R.C. 5321.04(A)(3). A violation of

the duty imposed by R.C. 5321.04(A)(3) constitutes negligence per se and

obviates the open-and-obvious-danger doctrine.

{¶ 34} Accordingly, we affirm the judgment of the Tenth District Court of

Appeals and remand the cause to the trial court.

Judgment affirmed

and cause remanded.

O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and

O’NEILL, JJ., concur.

____________________

Michael T. Irwin, for appellee.

Reminger Co., L.P.A., Brian D. Sullivan, Martin T. Galvin, Kevin P.

Foley, and Nicole M. Koppitch, for appellant.

Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for

amicus curiae, Ohio Association for Justice.

_________________________

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