Shump v. First Continental-Robinwood Assoc.

Decision Date27 December 1994
Docket NumberNo. 93-1381,CONTINENTAL-ROBINWOOD,93-1381
Citation644 N.E.2d 291,71 Ohio St.3d 414
PartiesSHUMP, Appellee and Cross-Appellant, v. FIRSTASSOCIATES, a.k.a. Robinwood Associates, Ltd., Appellants and Cross-Appellees, et al.
CourtOhio Supreme Court
SYLLABUS

A landlord owes the same duties to persons lawfully upon the leased premises as the landlord owes to the tenant. (Stackhouse v. Close [1911], 83 Ohio St. 339, 94 N.E. 746, paragraph one of the syllabus; 2 Restatement of the Law 2d, Torts [1965], Sections 355 to 362, approved and adopted; and Restatement of the Law 2d, Property [1977], Sections 17.6 and 19.1, approved.)

Ronald Daugherty leased a two-story town house in Robinwood Estates, located in Dayton, Ohio, from First Continental-Robinwood Associates, a.k.a. Robinwood Associates, Ltd. ("First Continental"), the owner of the apartment complex. The apartment contained one smoke detector. First Continental had hired Bill Goessl Electric, Inc., d.b.a. Bill's Electric ("Goessl"), an independent contractor, to install smoke detectors in all of the apartments in Robinwood Estates, including the apartment leased to Daugherty. In Daugherty's apartment, Goessl installed the smoke detector on the ceiling in a hallway between two bedrooms on the second floor and immediately above the stairway leading from the first floor to the second floor.

On October 11, 1987, Sandra J. Burnside visited Daugherty at his apartment. At approximately 1:30 a.m., a couch in the downstairs living room began to burn, emitting large amounts of smoke and carbon monoxide. First Continental asserted that fire department personnel determined that an unattended cigarette caused the fire. Daugherty and Burnside, who apparently had been sleeping in one of the two bedrooms on the second floor, apparently awoke when the smoke detector alarm sounded. However, both failed to escape from the second floor and died from smoke inhalation and/or carbon monoxide poisoning.

On behalf of Sandra Burnside's three children, Joe Shump, the administrator of the estate of Sandra Burnside, filed a wrongful death claim against First Continental, Goessl and others. In his complaint, Shump asserted that the defendants were negligent for failing to install an additional smoke detector on the lower level of Daugherty's apartment, as allegedly required by a 1984 city ordinance. Shump asserted that a second smoke detector on the lower level would have detected the smoke sooner than the smoke detector on the second floor, thus enabling Daugherty and Burnside to escape. 1

Defendants First Continental and Goessl filed motions for summary judgment in the Common Pleas Court of Montgomery County. The trial court granted Goessl's motion. Ruling that the duty to comply with safety codes imposed upon First Continental by R.C. 5321.04(A)(1) was nondelegable, the court reasoned that Goessl could not be found liable for any negligence. Ultimately, the trial court also granted First Continental's motion for summary judgment. The court dubbed Burnside a licensee and reasoned that First Continental merely owed Burnside a duty to refrain from willful and wanton conduct, which Shump had failed to demonstrate.

Shump appealed and presented the following three assignments of error: (1) the court erred in granting Goessl's motion for summary judgment, because the presence of a nondelegable duty owed by a landlord does not exonerate Goessl, an independent contractor, from liability for its own negligent acts; (2) the court erred in granting First Continental's motion for summary judgment, because whether First Continental acted willfully or wantonly is a question of fact for the jury to decide; and (3) the distinction between the common-law duty that a landowner owes an invitee and the duty a landowner owes a licensee should be abolished.

The court of appeals reversed the judgment of the trial court and remanded the cause for further proceedings. Agreeing with Shump's first assignment of error, the court concluded that First Continental's breach of its nondelegable duty to maintain the apartment in a reasonably safe condition did not exonerate Goessl from liability for its own negligent acts. Finding genuine issues of material fact as to whether Goessl breached its duty of ordinary care, the court of appeals held that the trial court erred in granting Goessl's motion for summary judgment. The court of appeals also upheld Shump's second assignment of error. Noting that evidence of willful and wanton conduct is generally a question for the jury, the court concluded that genuine issues of fact existed as to whether First Continental acted wantonly or willfully. The court of appeals overruled Shump's third assignment of error. It reasoned that the Ohio Supreme Court has shown no inclination to disregard the common-law distinctions among trespassers, licensees, and invitees.

First Continental has appealed and argues that the court of appeals erred in reversing the trial court, because there was no evidence that First Continental acted wantonly or willfully. Shump has cross-appealed, primarily arguing that the distinction between licensees and invitees under the common law of premises liability should be abolished and that First Continental owed Burnside a duty to exercise reasonable care.

The cause is now before this court upon the allowance of a motion and cross-motion to certify the record, 67 Ohio St.3d 1471, 619 N.E.2d 1027.

E.S. Gallon & Associates and David M. Deutsch, Dayton, for appellee and cross-appellant.

Jenks, Surdyk & Cowdrey Co., L.P.A., Scott G. Oxley and Robert F. Cowdrey, Dayton, for appellants and cross-appellees.

WRIGHT, Justice.

All parties and both lower courts have determined that the general law of premises liability governs the outcome of this case and have shaped their arguments accordingly. The question as to whether there is any evidence that First Continental acted willfully or wantonly with regard to Burnside arises only if we find that a licensor-licensee relationship existed between those parties under the law of premises liability.

Although we believe that this case involves the law of premises liability in a broad sense, we do not agree that the duty that First Continental owed Burnside should be governed by the common-law classifications of trespasser, licensee, or invitee. Instead, we think that the common law governing the tort liability of a landlord for injury or death caused by the dangerous condition of a leased premises governs the outcome of this case. See, generally, Annotation (1975), 64 A.L.R.3d 339.

It is axiomatic that, under the common law of premises liability, the status of the person who enters upon the land of another (i.e., trespasser, licensee, or invitee) defines the scope of the legal duty that the responsible party owes the entrant. Because one person is usually both the owner and possessor of real estate, in many premises liability cases no question arises as to who has the responsibility to maintain a premises in a safe condition. Where a party other than the owner possesses a premises (as in the case of a leased premises), under the common law of premises liability, the possessor or occupier and not the owner owes the applicable legal duty to the entrant. See 5 Harper, James & Gray, Law of Torts (2 Ed.1986) 134, 271, Sections 27.2 and 27.16 ("Harper & James"); Prosser & Keeton, Law of Torts (5 Ed.1984) 434, Section 63 ("Prosser"); Page, Law of Premises Liability (1976) 2-3; 2 Restatement of the Law 2d, Torts (1965), Sections 328E to 350.

This, of course, means that the common-law classifications of trespasser, licensee, and invitee determine the legal duty that a tenant owes others who enter upon rental property that is in the exclusive possession of the tenant. However, with regard to areas within the exclusive possession of a tenant, the common-law classifications do not affect the legal duty that a landlord owes a tenant or others lawfully upon the leased premises. See, e.g., 2 Restatement of the Law 2d, Torts, supra, Sections 357 and 362; Prosser, supra, Section 63. In the case at hand, it is undisputed that the apartment was in the exclusive possession of Daugherty when the fumes from the fire in his apartment overtook Burnside.

At early common law, a landlord generally was immune from tort liability for any injuries sustained by any person due to dangerous conditions on a leased premises in the exclusive possession of a tenant, even if the dangerous condition existed at the commencement of the tenancy. Burdick v. Cheadle (1875), 26 Ohio St. 393; Stackhouse v. Close (1911), 83 Ohio St. 339, 94 N.E. 746; Berkowitz v. Winston (1934), 128 Ohio St. 611, 1 O.O. 269, 193 N.E. 343; Ripple v. Mahoning Natl. Bank (1944), 143 Ohio St. 614, 28 O.O. 508, 56 N.E.2d 289; Cooper v. Roose (1949), 151 Ohio St. 316, 39 O.O. 145, 85 N.E.2d 545; Brown v. Cleveland Baseball Co. (1952), 158 Ohio St. 1, 47 O.O. 478, 106 N.E.2d 632; Pitts v. Cincinnati Metro. Hous. Auth. (1953), 160 Ohio St. 129, 51 O.O. 51, 113 N.E.2d 869. Absent fraud or an agreement to the contrary, a landlord simply owed no one a legal duty with regard to dangerous conditions upon a leased premises in the exclusive possession of a tenant. See 5 Harper & James, supra, Section 27.16; Prosser, supra, at 434-435; Page, supra, at 180; 2 Restatement of the Law 2d, Torts, supra, Section 356, Comment a.

The legal duty that a landlord owes a tenant is not determined by the common-law classifications of invitee, licensee, and trespasser under the law of premises liability; instead, a landlord's liability to a tenant is determined by a landlord's common-law immunity from liability and any exceptions to that immunity that a court or a legislative body has created. See, e.g., 2 Restatement of the Law 2d, Torts, supra, Sections 355 to 362; Annotation, supra, 64 A.L.R.3d 339. In point of fact, the exceptions nearly have swallowed up the...

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