Jensen v. Meyers

JurisdictionOregon
PartiesBilly JENSEN, by and through his guardian ad litem, Elton T. Lafky, Appellant, v. Harvey MEYERS, Norman Welch and Marjorie Welch, husband and wife, Respondents.
Citation250 Or. 360,441 P.2d 604
CourtOregon Supreme Court
Decision Date31 May 1968

Charles D. Burt, Salem, argued the cause for appellant. On the brief were Brown and Burt, Salem.

Robert Ringo, Corvallis, argued the cause for respondent Meyers. On the brief were Ringo, Walton & McClain, Corvallis.

Asa L. Lewelling, Salem, argued the cause and filed a brief for respondents Welch.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

O'CONNELL, Justice.

This is an action to recover damages for personal injuries. The trial court granted defendants' motions for a directed verdict and entered a judgment for defendants. Plaintiff appeals.

Plaintiff, aged nine, accompanied by his uncle and three other children, came to visit Mr. and Mrs. McConnell at their residence in Dallas, Oregon. The McConnell's were in possession of the premises as lessees of the defendants. 1 Plaintiff and the other children were told by their parents to go out and play. The children went into the garage and began playing with an old printing press left there by defendant Meyers. Plaintiff's hand was injured when it was caught between the fly wheel and the driving arm of the press.

The press was an obsolete piece of equipment weighing about a half ton. At the time the premises were leased there were two presses in the garage, but shortly after the lease was executed Myers removed one of them. Mr. McConnell testified that at the time the one press was removed Meyers said that he would also remove the other. McConnell knew that the press was in the garage. During the period of the lease Meyers entered upon the premises on a few occasions to make repairs and to remove articles belonging to him. In addition to the printing press, Meyers left other articles on the premises including two lawn mowers, a band saw, and a boat. There is nothing in the record to indicate whether he was authorized or obligated to remove these and other articles.

Subject to certain exceptions 'a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.' Restatement (Second) of Torts, § 356 (1965). 2 The comment appended to Section 356 explains the lessor's non-liability on the ground that 'when the land is leased the law of property regards the lease as equivalent to a sale of land for the term of the lease,' and thus the lessor stands in the same position as the grantor of property who, it is well established, is not liable for injuries occurring after the transfer of title. 3

The property concept standing alone is not a satisfactory explanation for immunizing the lessor from liability. As observed in 2 Harper & James, § 27.16 at p. 1509 (1956), '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).'

However, the immunity of the lessor may be rested upon grounds other than the mere transfer of a property interest to the lessee. Granting that one may, under certain circumstances, be liable for a condition attributable to his negligence which 'has passed beyond his control' as Harper & James point out, it does not follow that control is never a significant factor in allocating liability. The exceptions engrafted upon the lessor's immunity from liability appear to be based principally upon the ground that the hazard created by the lessor is not likely to be remedied or immunized by the lessee and thus the lessor is made liable upon the well accepted principle that one is liable for reasonably foreseeable harms. 4 But this is not to say that the lessor should be liable in every case where a dangerous condition exists at the time of leasing the premises. As one court has expressed it, '* * * the nature of the defect might be such that the landlord would reasonably expect that the tenant would take steps to remedy the defect or otherwise to safeguard persons entering them at his invitation.' 5

The present case does not fall within any of the recognized exceptions to lessor's nonliability. The only possible argument for bringing these facts within an exception would be on the theory that Meyers' declaration of his intent to return and remove the press induced the McConnells to forego any effort to remedy the hazard. This theory would have some merit if, as in the case of a promise by lessor to repair, there was an assurance that lessor would act to remove the hazard. But Meyers' declaration in this case was not an agreement to remove the press; at most it was a general indication of Meyers' intention which gave no assurance as to when, if ever, the hazard would be removed.

The mere fact that the hazard could have been eliminated by Meyers does not make him liable for plaintiff's injuries. The hazard could likewise have been eliminated by the McConnells. The McConnells had the opportunity not only to render the machine harmless by covering it or immobilizing the moving parts, but they were also in a position to warn their guests of the danger and to exercise control of activities on the premises so as to keep them away from the known danger. We are of the opinion that the lessor should not be liable under these circumstances on the ground that he should be entitled to expect that the lessee will take the necessary steps to eliminate the hazard or to warn his guests of the danger.

The present case is to be distinguished from the recent case of Flint v. Snow, Or., 439 P.2d 610 (April 10, 1968). That case involved the duty of a lessor to persons outside of the leasehold premises for harm caused by a dangerous condition of a part of the premises the control of which was retained by the lessor. In the present case the harm resulted to a person on the leasehold premises. Moreover, the lessor did not retain control of any part of the leasehold.

The judgment of the trial court is affirmed.

McALLISTER, Justice (dissent...

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15 cases
  • Bellikka v. Green
    • United States
    • Oregon Supreme Court
    • November 16, 1988
    ... ... 641] existed when the lessee took possession is based on a conveyance concept of property which this court, in Jensen v. Meyers, 250 Or. 360, 363, 441 P.2d 604 (1968), found is not by itself a satisfactory explanation for immunizing the lessor from liability. We now ... ...
  • Eduardo v. Clatsop Community Resource
    • United States
    • Oregon Court of Appeals
    • June 21, 2000
    ... ... Jensen v. Meyers, 250 Or. 360, 363, 441 P.2d 604 (1968)—a dispute over the landlord's liability for injury to the lessee's social guest caused by a known ... ...
  • Humbert v. Sellars
    • United States
    • Oregon Supreme Court
    • October 15, 1985
    ... ... Rogers, 265 Or. 586, 588, 510 P.2d 551 (1973); Jensen v. Meyers, 250 Or. 360, 441 P.2d 604 (1968). The relevant section of Restatement (Second) of Torts is: ...         § 356 Conditions ... ...
  • Walsh v. Spalding & Son, Inc.
    • United States
    • Oregon Court of Appeals
    • November 7, 2007
    ... ... relied on generalized notions of reasonable foreseeability rather than the more particularized standard of premises liability adopted in Jensen v. Meyers, 250 Or. 360, 441 P.2d 604 (1968), and refined in Bellikka v. Green, 306 Or. 630, 762 P.2d 997 (1988). Defendant further contends that, ... ...
  • Request a trial to view additional results
1 books & journal articles
  • §10.2 Premises Liability in the Landlord-tenant Context
    • United States
    • Torts (OSBar) Chapter 10 Premises Liability
    • Invalid date
    ...noted exceptions are set forth in Restatement, supra, §§357, 360-362. Beginning with its 1968 decision in Jensen v. Meyers, 250 Or 360, 441 P2d 604 (1968), however, the Oregon Supreme Court departed from the rule in the Restatement and identified a new standard discussed in §10.2-2(b). This......

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