Berkowitz v. Winston

• Citation: 193 N.E. 343,128 Ohio St. 611
• Decision Date: 21 November 1934
• Docket Number: 24968
• Parties: Berkowitz v. Winston.
• Court: United States State Supreme Court of Ohio

193 N.E. 343

128 Ohio St. 611

Berkowitz v. Winston.

No. 24968

Supreme Court of Ohio

November 21, 1934

Landlord and tenant - Negligence - Lessor not liable to invitee of lessee, when - Liability incident to occupation or control - Occupation and control not reserved by agreement to make repairs.

1.

Promise by the lessor, to make repairs of premises leased, does not impose upon the lessor liability in tort to persons entering thereon at the invitation of the lessee.

2.

Liability in tort is an incident to occupation or control; occupation and control are not reserved by an agreement to make repairs.

3.

An owner of real estate, who has surrendered possession thereof to a lessee, is not liable to an employee of such lessee for personal injuries resulting from a defective condition of the premises, though he had promised the lessee to make repairs.

This action is one for damages for personal injuries sustained by the plaintiff, Winston, an employee of a tenant of residence premises owned by the defendant. At the conclusion of plaintiff's case, the trial court directed a verdict for the defendant.

The facts essential to a consideration of the legal question presented are as follows:

When the tenant went into possession of the premises, the defendant agreed to thereafter make certain repairs, some of which were made. Thereafter the tenant requested that the ceiling be repaired and defendant promised to do that.

The tenant sublet portions of the premises to others and plaintiff was one of such sub-tenants.

While performing some service for the tenant, the plaintiff went into tenant's kitchen, and while there was struck by falling plastering and was thereby injured. Upon proceeding in error the Court of Appeals re- versed the judgment of the Court of Common Pleas and remanded the case to that court for further proceedings. Thereafter the Court of Appeals certified the case to this court on the ground of conflict with the judgment in the case of Miller Admr., v. Ellis, decided by the Court of Appeals of Summit county, April 9, 1928.

Messrs. Dolle, O'Donnell & Cash, for plaintiff in error.

Mr. Amos P. Foster and Mr. George Bailes, for defendant in error.

MATTHIAS J.

The facts in evidence present but a single question of law: Is the owner of premises rented to another, to whom complete and entire possession has been surrendered, liable for personal injuries resulting to an employee of the lessee from the defective condition of the premises, though the owner had promised the lessee to make repairs?

That precise question was before this court in the case of Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. 767, and was answered in the negative. It was there held that the landlord was not liable in such action. The principle there announced has been adhered to and consistently approved in numerous cases, notably Shindelbeck v. Moon, 32 Ohio St. 264, 30 Am. 584; Stackhouse v. Close, 83 Ohio St. 339, 94 N.E. , 746; and Marqua v. Martin, 109 Ohio St. 56, 141 N.E. , 654.

The test to be applied in every case involving the liability of an owner for injuries arising from the defective condition of premises under lease to another is the question whether the landlord was in possession or control of the premises, or the part thereof the disrepair of which occasioned the injury.

Where portions of a building are rented to several tenants who have the use of halls, stairways, etc., in common, the landlord is held to...