Ripple v. Mahoning Nat. Bank

• Citation: 56 N.E.2d 289,143 Ohio St. 614
• Decision Date: 26 July 1944
• Docket Number: 29915.
• Parties: RIPPLE v. MAHONING NAT. BANK.
• Court: United States State Supreme Court of Ohio

56 N.E.2d 289

143 Ohio St. 614

RIPPLE v. MAHONING NAT. BANK.

No. 29915.

Supreme Court of Ohio

July 26, 1944

Syllabus by the Court.

The reservation in a lease of a suite of rooms for use as a private office, whereby control thereof is retained only 'for the purpose of repairing the same and the doing of daily janitor work,' does not render the lessor liable for injuries sustained by an employee of the lessee caused by falling plaster, in the absence of authority of the lessor to exercise control over such premises to the exclusion of any control by the lessee. (Burdick v. Cheadle, 26 Ohio St. 393, 20 Am.Rep. 767; Marqua v. Martin, 109 Ohio St. 56, 141 N.E. 654; and Berkowitz v. Winston, 128 Ohio St. 611, 193 N.E. 343, approved and followed.)

Appeal from Court of Appeals, Mahoning County.

BELL J., DISSENTING.

This case originated in the Court of Common Pleas of Mahoning county as an action to recover for personal injuries suffered by the plaintiff, Moody Ripple, appellant herein, when plaster fell upon him from the ceiling of an office in the Mahoning National Bank building in the city of Youngstown.

The issues were made in the Court of Common Pleas upon the petition of the plaintiff and the general demurrer thereto filed by the defendant, the Mahoning National Bank, appellee herein.

The petition, after alleging the corporate capacity of the defendant, contained the following allegations, which are the basis of plaintiff's claim:

'Plaintiff says that at all times herein referred to this defendant rented and leased various rooms and quarters in its said office building to various and divers persons for commercial and office purposes; that one of said office suites in said building consisting of four rooms, on the second floor of said building was rented and leased by this defendant to the Beck Insurance and Real Estate Agency but defendant retained control over said suite of offices for the purpose of repairing the same and the doing of daily janitor work; that this plaintiff was an employee of said Beck Insurance and Real Estate Agency.

'Plaintiff avers that in the course of his employment he used one of said private office rooms in said suite to confer with clients of said agency. Plaintiff says that on September 9th, 1941, at about ten o'clock a.m., that he was in the use of the northeast private office of said suite, seated behind his desk, when a section of plaster about four (4) feet long and one (1) inch in thickness suddenly and without warning fell from the ceiling of said room and struck him with great force and violence and injuring him as hereinafter more specifically set forth.

'Plaintiff says that said ceiling plaster of said room fell by reason of the fact that it had been improperly and defectively placed and installed on the base of said ceiling, which fact was well known to this defendant, or with the exercise of proper care should have been known to the defendant; that this defendant was negligent and careless in [not] seasonably inspecting said ceiling plaster to ascertain its dangerous and defective condition; that this defendant was careless and negligent in failing to remove said dangerous and defective plaster when it knew, or in the exercise of the proper degree of care should have known it was liable to fall and injure persons in the lawful use of said private office room; that said defendant retained control over said office suite for the purpose of making repairs in the same.'

The Court of Common Pleas sustained the demurrer to the petition, and, plaintiff not pleading further, entered final judgment for the Mahoning National Bank. That judgment was affirmed by the Court of Appeals, and the cause is before this court for review, a motion to certify the record having been allowed.

Mr. Clyde W. Osborne and William E. Lewis, both of Youngstown, for appellant.

R. J. Nicholson, of Youngstown, for appellee.

MATTHIAS Judge.

The demurrer presents but a single question of law: Where the owner of a building retains control over a suite of offices therein, leased to a tenant, 'for the purpose of repairing the same and the doing of daily janitor work,' is such owner liable to an employee of his tenant, who is injured as a result of falling plaster which has been 'defectively placed and installed on the base of said ceiling'?

The plaintiff argues that this case differs from the ordinary landlord and tenant case in that here the landlord of a large office building has retained control over the various suites and private offices located therein, for the purpose of making repairs and the daily cleaning of these suites and offices.

The question presented by the demurrer is not one of first impression. It was considered and decided in the early case of Burdick v. Cheadle, 26 Ohio St. 393, 20 Am.Rep. 767. Cheadle was the owner of a brick building designed to be used for storerooms for the sale of dry goods and groceries. He leased to Hunt and Newcomer a room on the lower floor of the building, for the sale of dry goods and groceries, agreeing with them to complete certain cornices, shelving and fixtures, then in process of construction in the room, in a secure, safe, convenient and proper manner, and to keep the premises in good order.

Burdick, the plaintiff in that case, while on the premises as a customer of one Mattison, who had sublet the premises, was injured when the cornices and shelving fell upon him. Cheadle had been notified prior to the accident that the shelves were loose, dangerous and unsafe, and had been requested to make repairs, but had refused and neglected to do so. Burdick sued to recover from both Cheadle and Mattison for his injuries, and to his petition Cheadle, the landlord, demurred, which demurrer was sustained by the lower court and that decision was affirmed by the Supreme Court. We quote from the opinion of McIlvaine, J., the following pertinent language:

'Nor can the plaintiff hold the lessor liable to him for the injuries sustained upon his contract of lease with the tenant in possession. In disposing of this question, we have regarded Mattison as standing in the shoes of the original lessees.

'The general rule of law undoubtedly is, that persons who claim damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule. There is no implied engagement or promise, on the part of a lessor, that the leased premises are in a safe condition, or that they are fit for the use to which the lessee intends to put them. If they be unsafe or unfit, it is the duty of the tenant to make them safe, or to fit them for the intended use; and the landlard may reasonably expect that the tenant will do so. And if the landlord warrants their fitness, the covenant stands for the benefit of the lessee and not for the benefit of strangers to the contract. And so, if the lessor engages with the lessee, to keep the premises in repair, a breach of the engagement gives a right of action only to the lessee. But whatever may be the rights and duties respectively of landlord and tenant, as between themselves, the latter can not, by the terms of the lease, be discharged from the duty to his guests, and in a greater degree to his customers, of caring for their safety. And while such persons may reasonably expect the exercise of care for their safety from the person who invites them, they have no right to expect like care from his landlord, with whom they are not in privity. Hence, it is well stated by Shearman and Redfield, in their work on Negligence (section 503), that the guests or customers of the tenant must seek redress for injuries, caused by defects in the premises, from the tenant and not from the landlord, even though the defects existed when the lease was made; for if they had not entered the premises at the request of the tenant, or under his license, they would not have suffered injury.'

The rule announced in Burdick v. Cheadle has been repeatedly followed and applied in this court. See Marqua v Martin, 109 Ohio St. 56, 141 N.E. 654, and cases cited therein; also Goodall v. Deters, 121 Ohio St. 432, 169 N.E. 443. A very similar question was before this court in the case of Berkowitz v. Winston, 128 Ohio St. 611, 193 N.E. 343, which...