Meier v. Vistula Heritage Village

• Court: Ohio Court of Common Pleas
• Writing for the Court: FREDERICK H. McDONALD
• Citation: Meier v. Vistula Heritage Village, 609 N.E.2d 1360, 62 Ohio Misc.2d 632 (Ohio Ct. Com. Pl. 1992)
• Decision Date: 13 October 1992
• Docket Number: No. 91-3810,91-3810
• Parties: MEIER v. VISTULA HERITAGE VILLAGE et al. *

Page 632

62 Ohio Misc.2d 632

609 N.E.2d 1360

MEIER v. VISTULA HERITAGE VILLAGE et al. ^*

No. 91-3810.

Court of Common Pleas of Ohio Lucas County.

Decided Oct. 13, 1992.

Dixon & Dixon, Randall C. Dixon and John Blaufuss, Toledo, for plaintiff.

Eastman & Smith, David M. Jones and Timothy C. Kuhlman, Toledo, for defendants.

FREDERICK H. McDONALD, Judge.

This cause comes before the court on the motion of defendants Vistula Heritage Village, the National Housing Partnership, Christopher Hanvack, and Lilia Gotiangco for summary judgment (hereinafter referred to as "defendants/landlords"). Upon consideration of this motion, I find that summary judgment should be granted in part and denied in part.

I

The undisputed facts in this case are that plaintiff, Eunice R. Meier, was awakened by a noise in her kitchen in her residence at 823 N. Erie Street, Apt. B, sometime after midnight on November 22, 1990. Louis Clarence Jackson, ¹ an assailant unknown to the plaintiff at the time of the incident, had broken into plaintiff's apartment. Meier was then sexually assaulted by the intruder.

II

The general rules governing motions for summary judgment filed pursuant to Civ.R. 56 are well established. In Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, the Supreme Court of Ohio stated the requirements that must be met before a motion for summary judgment can be granted:

"The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.

"The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment." See, also, Johnson v. New London (1988), 36 Ohio St.3d 60, 61, 521 N.E.2d 793, 794.

The Sixth District Court of Appeals has consistently held that motions for summary judgment should be granted with caution in order to protect the non-moving party's right to trial. As stated by the court in Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 14-15, 13 OBR 8, 16, 467 N.E.2d 1378, 1386:

"We recognize that summary judgment, pursuant to Civ.R. 56, is a salutary procedure in the administration of justice. It is also, however, a procedure which should be used cautiously and with the utmost care so that a litigant's right to a trial, wherein the evidentiary portion of the litigant's case is presented and developed, is not usurped in the presence of conflicting facts and inferences. * * * It is settled law that '[t]he inferences to be drawn from the underlying facts contained in the affidavits and other exhibits must be viewed in the light most favorable to the party opposing the motion, * * * ' which party in the instant case is appellant. * * * It is imperative to remember that the purpose of summary judgment is not to try issues of fact, but rather to determine whether triable issues of fact exist." (Citations omitted.) See, also, Bowlds v. Smith (1961), 114 Ohio App. 21, 29, 18 O.O.2d 305, 310, 180 N.E.2d 184, 189.

III

Plaintiff asserts in her claim that the defendants/landlords were negligent for not taking adequate steps to secure the residence, were in violation of the Landlord/Tenant Act, R.C. 5321.04(A), for failing to make repairs to a faulty window, and were in breach of contract for not maintaining the apartment in a safe condition. Defendants/landlords' motion for summary judgment argues that they have no duty or obligation to protect the plaintiff/tenant from the intentional criminal acts of third-parties, under statutory law, contract, or common-law theories.

A. Statutory Law

Plaintiff claims in Count Two of her complaint that she is entitled to relief because the defendants/landlords failed to repair a defective window in violation of R.C. 5321.04. This statute imposes a duty for landlords to maintain their premises in a "fit and habitable condition" and to "maintain in good and safe working order and condition all * * * heating, ventilating, and air conditioning fixtures and appliances * * *." R.C. 5321.04(A)(2) and (A)(4). Plaintiff claims that because her windows were often very difficult to close in humid and rainy weather, these ventilating fixtures were not maintained in good and safe working order.

In Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 25-26, 22 O.O.3d 152, 155, 427 N.E.2d 774, 778, the court stated: "A violation of a statute which sets forth specific duties constitutes negligence per se. However, in addition to negligence per se, proximate cause for the injuries sustained must be established. Also it must be shown 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." (Citations omitted.)

In the case sub judice, a dispute exists whether the defendants/landlords were notified of the faulty windows. However, even if the plaintiff did notify the defendants/landlords, she cannot recover unless the faulty windows were a proximate cause of the attack upon her. In Shroades, the tenant was injured by the faulty condition of the premises and not from the acts of a third party as in the present case. Plaintiff argues that the intervention of the third party presents an issue of proximate cause.

This court was presented with the same issue in Cherkiss v. Thomas (Nov. 21, 1983), Lucas C.P. No. 82-3325, unreported, affirmed (Apr. 13, 1984), Lucas App. No. L-83-416, unreported. The Lucas County Court of Common Pleas held in that case that "in order to recover for injuries sustained as a result of the violation of a statute, plaintiff must show that she suffered the kind of injury which the statute was designed to prevent." Id. at 4. The court reasoned that:

"Section 5321.04 requires the landlord to comply with housing codes, keep the premises clean, [and] maintain utilities and appliances. In turn, the tenant is obligated to keep the residence clean, operate the utilities properly, maintain appliances and ensure that strangers do not destroy the property. The act also gives the tenant remedies to be used in the event that the landlord violates his duties. Thus upon reading the statute, it becomes clear that the legislature enacted the provisions to protect the tenant from filth, adverse weather conditions, and such injuries as falling down stairs, gas explosions, and falling plaster. To extend this statute any further would be to encroach upon the powers of the legislature." Id. at 5-6.

Under Cherkiss, landlords are not under an obligation to protect against unforeseeable events outside the scope of R.C. 5321.04. The majority of cases also holds that unforeseeable events outside the scope of the statute are not actionable. See Pamer v. Pritchard Bros. (1990), 61 Ohio Misc.2d 150, 575 N.E.2d 900; Barber v. Mid-Towne Assoc. (1990), 62 Ohio App.3d 384, 575 N.E.2d 879; Carmichael v. Colonial Square Apts. (1987), 38 Ohio App.3d 131, 528 N.E.2d 585. Plaintiff could recover for damage to personal property from rain or wind that may have occurred from open windows that could not close, but not from a criminal act. A landlord is not the insurer of rental property from criminal activity. Sciascia v. Riverpark Apts. (1981), 3 Ohio App.3d 164, 166, 3 OBR 188, 190, 444 N.E.2d 40, 42.

Plaintiff relies on Stancil v. K.S.B. Invest. & Mgt. Co. (1991), 62 Ohio App.3d 765, 577 N.E.2d 452, for the notion that current case law supports recovery under R.C. 5321.04. However, the issue raised in that case primarily concerned the requirement of notice, to be given in the jury instructions; proximate cause was never addressed. Accordingly, there is no issue of material fact with regard to the duty imposed by statute and defendants/landlords' motion for summary judgment is well taken on this issue.

B. Contract Law

Plaintiff claims in Count Three of her complaint that Paragraphs 6 and 10 of her lease agreement place a duty on the defendants/landlords to maintain the apartment in a safe condition. Paragraph 6 states:

"6. Condition of Dwelling Unit: By signing this Agreement, the Tenant acknowledges that the unit is safe, clean and in good condition. The Tenant agrees that all appliances and equipment in the unit are in good working order, except as described in the Unit Inspection Report which is Attachment 2 to this Agreement. The Tenant also agrees that the Landlord has made no promises to decorate, alter, repair or improve the unit, except as listed on the Unit Inspection Report."

Paragraph 10 of the lease states in pertinent part:

"10. Maintenance

"a. The landlord agrees to:

" * * * "2. maintain the common areas and facilities in safe condition;

" * * *

"4. maintain all equipment and appliances in safe and working order;

"5. make necessary repairs with reasonable promptness.

"b. The tenant agrees to:

" * * *

"4. give the landlord prompt notice of any defects in the plumbing, fixtures, appliances, heating, and cooling equipment or any other part of the unit or related facilities."

The lease does require the defendants/landlords to maintain the apartment in a safe and working condition. However, "safe" is not necessarily synonymous with "secure." "It is a well-known principle that contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." (Citations omitted.) Skivolocki v. East Ohio Gas Co. (1974), 38 Ohio St.2d 244, 247, 67 O.O.2d 321, 322, 313 N.E.2d 374, 376.

There is no provision in the lease which imposes a duty for the landlord to provide...