Humbert v. Sellars

• Decision Date: 15 October 1985
• Citation: 708 P.2d 344,300 Or. 113
• Parties: Fanny Myrtle HUMBERT, Petitioner on Review, v. W.H. SELLARS and Geraldine Sellars, husband and wife, and William Taylor dba Banker's Realty Property Management, Respondents on Review. CA A27258; SC S30581.
• Court: Oregon Supreme Court

Page 344

708 P.2d 344

300 Or. 113

Fanny Myrtle HUMBERT, Petitioner on Review, v. W.H. SELLARS and Geraldine Sellars, husband and wife, and William Taylor dba Banker's Realty Property Management, Respondents on Review.

CA A27258; SC S30581.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 5, 1984.

Reassigned July 3, 1985.

Reassigned Sept. 17, 1985.

Decided Oct. 15, 1985.

[300 Or. 114] Wesley S. Johnson, John Day, argued the cause and filed briefs for petitioner on review.

J.C. Van Voorhees, of Minturn, Van Voorhees, Larson & Dixon, Prineville, argued the cause and filed the brief for respondents on review.

PETERSON, Chief Justice.

Plaintiff slipped and fell on a wet patio while visiting a friend's apartment. She sought damages for injuries from the owners and manager of the apartment complex. Defendants moved for summary judgment. The trial court granted the motion. The Court of Appeals affirmed. Humbert v. Sellers, 67 Or.App. 176, 180, 677 P.2d 760, 762 (1984). For the reasons that follow, we reverse the Court of Appeals and remand the case to the circuit court for further proceedings.

In the trial court defendants stated that they relied on the common-law principle that "a landlord is not subject to liability to a tenant or a tenant's invitees or guests for injury incurred on the premises caused by dangerous conditions which existed when the tenant took possession of the rented premises." ¹ The plaintiff asserted in response that even if she could not recover under the common law, she was entitled to recover under the Residential Landlord and Tenant Act, ORS 91.700 to 91.895, specifically ORS 91.770(1)(h), which provides that "a dwelling unit shall be considered unhabitable if it substantially lacks: (h) Floors * * * maintained in good repair." The trial court rejected plaintiff's contentions, stating:

"I rule that the Landlord-Tenant Law is not applicable to this situation, because it was not the intent of the legislature to make it so. The Landlord-Tenant Law was intended to impose a duty upon the landlord that was concurrent with the duty of the tenant to pay rent. The landlord's duty was to maintain the premises in a habitable condition, the measure of the damages being the difference between the fair market value of the premises as they had been rented and the value of the premises during the period of breach as they actually existed. That quotation comes from the case of Lane v. Kelley, 57 Or App 197 [643 P.2d 1375,] 1982 Court of Appeals case. I can find no authority when there is no evidence of any intent on the part of the legislature to extend the requirements of this act to a guest of a tenant who is injured on the premises, thereby modifying common law in this matter.

"Because plaintiff has not made out a case under any of the exceptions of the Restatement and because there has been no other demonstration of a duty imposed upon the landlord under the facts of this case, [the defendants are] entitled to summary judgment. * * *"

The Court of Appeals affirmed the trial court. Concerning the common-law rule, the Court of Appeals held that "with certain [inapplicable] exceptions, a lessor of land is not liable to his lessee or others on the land for harm caused by any dangerous condition which existed when the lessee took possession." 67 Or.App. at 179, 677 P.2d at 761. Considering ORS 91.770(1), the court stated:

"Plaintiff fails to point out or allege in her complaint which subsection of ORS 91.770 she contends was violated by the water accumulation on the patio. Although we agree that a landlord's duty to a guest is the same as that owed to a tenant, Lyons v. Lich, 145 Or 606, 612, 28 P.2d 872 (1934), we do not agree that the water on the patio falls within the statutory guidelines defining which defects amount to unhabitable premises. Plaintiff's basic argument that a guest might state a claim under ORS 91.770 may not be entirely untenable. See Brewer v. Erwin, 287 Or 435, 452, 600 P.2d 398 (1979). However, without an additional assertion that defendants failed to provide one of the specifically-enumerated services mandated by ORS 91.770, the argument is irrelevant. We therefore reject plaintiff's argument that the trial court erroneously dismissed her complaint because ORS 91.770 impliedly permits her to state a claim for defendants' breach of their duty to maintain the tenant's premises in a habitable condition." 67 Or.App. at 180, 677 P.2d at 762.

I

Defendants' motion for summary judgment was based on evidence contained in depositions of plaintiff and of defendant Taylor, who managed the property for the owners, Mr. and Mrs. Sellars. According to the evidence, the property was an apartment complex operated for low income elderly tenants under standards set by the State Housing Authority and the federal Department of Housing and Urban Development. Plaintiff occupied one of the other apartments in the complex.

On the day she was injured, the plaintiff visited her neighbor in the adjoining apartment. In front of the neighbor's apartment was a patio, enclosed by a fence. The evidence suggests that the patio was within the premises leased to the neighbor. It had been raining, and there was standing water on the patio in front of the entry to the neighbor's apartment. The water was as deep as plaintiff's oxford shoes, reaching up to a cement step in front of the door. She successfully entered the apartment, but on the return trip she slipped in the water and fell, causing her injuries. Some kind of board had been placed on the patio for the purpose of stepping above standing water, but it was some distance away from the cement step and plaintiff did not recall stepping on it.

An affidavit executed by the host neighbor stated that she had had a water problem on the patio since 1978, some three years before the incident. Defendant Taylor, who managed the apartments for the other defendants, testified that he began managing the property in February, 1980, and that the previous property manager told him of the problem. The accident happened in July, 1981.

II

In her petition for review, the plaintiff urges that we should "abolish the immunity afforded to landlords and * * * apply general negligence principles to the relationship between landlords and tenants." ² We need not reach that question because we hold that there is evidence showing a violation of ORS 91.770, and defendant therefore was not entitled to summary judgment. ORCP 47C.

Minimum standards of safety and fitness for human habitation have not been left to private ordering and the inventiveness of common-law courts; they have long been imposed by state and local lawmakers. A landlord's duties under housing codes and the more recent landlord-tenant acts generally are enforceable by public officials or by special civil remedies accorded the tenant. Love, Landlord's Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability? 1975 Wis.L.Rev. 19, 42-48. Some acts spell out the consequences if a landlord's noncompliance results in personal injuries, ³ but many do not. Courts nevertheless have held landlords liable for injuries caused by breaches of such statutory duties as in the case of other safety laws. The point was first made by Cardozo, J., in Altz v. Leiberson, 233 N.Y. 16, 134 N.E. 703 (1922), when a tenant was injured in her room by a falling ceiling, which the landlord failed to repair after notice:

"At common law there was no duty resting on the landlord of an apartment house to repair the rooms demised. His duty of repair was limited to those parts of the building which the occupants enjoyed in common. The Tenement House Law has changed the measure of his burden.

[The law provided: 'Every tenement house and all the parts thereof shall be kept in good repair.']

The command of the statute, directed, as it plainly is, against the owner * * * has thus changed the ancient rule. * * * The meaning is that the premises shall not be suffered to fall into decay. The duty to prevent this, which, in part at least, once rested upon the tenant, is now cast upon another.

"A narrower construction ignores, not only the letter of the statute, but the evil to be cured. * * * We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers. The right extends to all whom there was a purpose to protect."

Altz v. Leiberson, supra, 233 N.Y. at 17-19, 134 N.E. at 703-04 (citations omitted). Tort liability for violations of housing laws has been implied in California, Kentucky, Michigan, New Jersey, New Mexico, and Ohio. ⁴

Oregon's Residential Landlord and Tenant Act extends the landlord's liability to others besides the tenant. ORS 91.725 states that the remedies provided in the act "shall be so administered that an aggrieved party may recover appropriate damages." In Brewer v. Erwin, 287 Or. 435, 441, 600 P.2d 398, 403 (1979), we quoted the comment to the corresponding section of the Uniform Residential Landlord and Tenant Act, 7A Uniform Laws Annotated section 1.105(a): "The use of the words 'aggrieved party' is intended to indicate that in appropriate circumstances rights and remedies may extend to third persons under this Act or supplementary principles of law * * *."

An aggrieved party includes a tenant's guest who is injured by a landlord's failure to maintain the premises in a habitable condition, if the tenant herself could recover damages for the same injury. The measure of a "habitable condition" may be what is habitable by those who reside in the premises, but when the measure is breached, ORS 91.725 recognizes that others may suffer...