Humbert v. Sellars

LENT, J.,

specially concurring.

As must be apparent from the title page, the court has wrestled long and hard with this case. The majority now holds that on the defendant’s motion for summary judgment the plaintiff should have prevailed. The majority reaches that result by expressly holding as a matter of law that the surface *123 of the patio just outside the door of the tenant’s apartment was a “floor” within the meaning of ORS 91.770(l)(h). That is not enough to get the plaintiff home, however, for the plaintiff had also to show that the floor was not “maintained in good repair.”

Throughout these proceedings plaintiffs position has been that a “structural” change was necessary to alleviate the dangerous condition that existed when the tenancy commenced. 1 There was no evidence that the patio surface was not in good repair or that it failed in the function of a floor to bear weight. Had it not been for water temporarily standing on the patio surface, plaintiff would have no arguable claim. Defendant Taylor testified on deposition that the condition was remedied by putting in

“probably a 10 X 12 wood deck and they’re supported on like with 2X4 footings and joists.”

I do not agree that a structural change of that kind is what the legislative text of ORS 91.770(l)(h) reaches by “maintaining] in good repair” a floor. For that reason I cannot join the opinion. 2

Plaintiff urged throughout that she was entitled to recover on a common law negligence theory and that we should abandon the general rule of the common law that a lessor of land is not liable to the lessee or others lawfully on the land for physical harm caused by a dangerous condition which existed when the lessee took possession. That rule is stated in Restatement (Second) of Torts § 356.1 understood that resolution of that contention was the reason we allowed review.

I believe that we should reach the issue. I shall not extend this opinion by the many pages necessary to develop the reasons, historical and logical, that I believe that the rule should never have been applied to “others on the land” such as *124 this plaintiff and certainly should not now apply. The lessor who creates a dangerous condition should not by reason of his contractual or property arrangements with the lessee be able to avoid liability to a third person who suffers physical injury by reason of that condition. Indeed, the lessor under the common law is liable for injury resulting from such a condition to one outside the premises. See, for example, Restatement (Second) of Torts § 379. 3 See also 2 Harper and James, The Law of Torts 1509-10, § 27.16. 4 There is no logical reason why the guest of a tenant who is injured by the dangerous condition can recover if the injury takes place as the guest approaches the property but cannot recover if injured when he sets foot on the property.

The issue was raised and argued, but I leave to another case that may not be held to come within the Residential Landlord and Tenant Act the publication of my views. 5

Because I believe this plaintiff, as a visitor, has pleaded and presented evidence sufficient to raise a material issue of fact for recovery other than under the Residential Landlord and Tenant Act, I concur in the result.

By “dangerous condition” I take the plaintiff to have meant (and I do mean) a condition that subjected those on the premises to an unreasonable risk of harm.

It would appear that under the majority’s opinion and the conceded fact of the defendants’ awareness of the problem of the standing water, that plaintiff will be entitled to prevail on the issue of defendants’ “fault” if she can convince the finder of fact that she did indeed sustain injury by reason of the standing water, irrespective of the condition of repair of the patio surface, i.e., the “floor.”

Restatement (Second) of Torts § 379 states:

“A lessor of land who transfers its possession in a condition which he realizes or should realize will involve unreasonable risk of physical harm to others outside of the land, is subject to the same liability for physical harm subsequently caused to them by the condition as though he had remained in possession.”

2 Harper and James, The Law of Torts 1509-10, § 27.16 states:

“Yet it is no part of the general law of negligence to exonerate a defendant simply because the condition attributable to his negligence has passed beyond his control before it causes injury (if the injury was foreseeable at the time defendant still had control).” (Footnote omitted.)

I do not fully understand whether the majority is holding that violation of ORS 91.770(l)(h) establishes strict liability. What is meant by “maintained” in good repair? Is that a continuing, absolute, nondelegable duty that is breached the instant that the floor falls into disrepair? Must the landlord be aware of the state of disrepair and have an opportunity to repair? If the landlord must know, or in the exercise of reasonable care know, of the state of disrepair and fail to take ordinary care to make repairs, are we not back to just negligence? In another field of law, the owner of a ship is held to a warranty of seaworthiness that runs to the crew. The owner has an absolute, nondelegable duty to the crew to furnish a seaworthy vessel, i.e., in general terms, a vessel reasonably safe for them to perform their duties as members of the crew. Is the landlord’s statutory duty of that nature? As just one question that arises from the majority’s holding, I ask if the landlord, under the statute, is liable to a visitor of the tenant where the visitor is injured by tripping over a break in the flooring caused by the visitor and the tenant moving some heavy object such as a safe across the floor?