Young v. Mager

• Citation: 322 N.E.2d 130,41 Ohio App.2d 60
• Parties: , 70 O.O.2d 59 YOUNG, Appellant, v. MAGER, Appellee.
• Decision Date: 21 August 1974
• Court: United States Court of Appeals (Ohio)

Page 60

41 Ohio App.2d 60

322 N.E.2d 130, 70 O.O.2d 59

YOUNG, Appellant, v. MAGER, Appellee.

Court of Appeals of Ohio, Ninth District, Lorain County.

Aug. 21, 1974.

Syllabus by the Court

1. A landlord who rents parts of a building to various tenants, who must use, in common, a porch, entrance way and hallway to go to their living quarters, reserves control, in the absence of a contract to the contrary, of such parts of the building and is under a duty to use ordinary care to keep such places in a reasonably safe condition, and is liable for injuries to a guest of the tenants, proximately caused by a failure to perform that duty.

2. Before a landlord may be held liable for injuries received by a guest of a tenant, for failure to repair a defective common way, such landlord must have either actual or constructive knowledge of such defect, or the defect must have existed for such a length of time that the landlord should have known of the defect.

Ronald H. Gordon, Lorain, for appellant.

Miraldi & Barrett, Amherst, for appellee.

HUNSICKER, Judge.

On December 18, 1973, a verdict was entered for Jack Young, in an action he had filed against Paul S. Mager. Young claimed that he fell and broke his ankle when the heel of his shoe caught in a hole on the back porch of a home owned by Mager, and occupied by three tenant families. Young said that he was thrown to the floor of the porch and had to extricate his leg from the hole by pulling it away from the hold. Young, who had gone into the house an hour or so before leaving the building, had no difficulty and had never seen a hole on the porch in other visits to see his niece, who lived in an apartment on the second floor.

Young said that he had gone to the home of his niece (a daughter of his sister, Selma), in response to a call for help in unplugging a blocked or stopped toilet. Fannie Young, a sister of Jack Young, lived in the downstairs apartment.

The floor of the porch was wood, and it was about eight feet wide and twenty feet long. The roof had been removed by Mager, preparatory to building a smaller porch of concrete with no roof.

The evidence, as to the condition of the porch floor and the presence of a hole, is in great conflict. The testimony as to the location of a hole is uncertain, as testified to by Young and some of his witnesses. The record of testimony relates only that the hold was 'here indicating,' with no measurements given. The reader of the record is not able to see where the 'indicating' is located. There is, however, some description of the location of the hole given by the witnesses. Young says that it was two steps or two feet from the entrance door.

Fannie Young first said that the hole was on the left side, then she said that it was on the right and not in the path between the door and the steps, maybe over a foot. Annie Charlton (Jack Young's girl friend and landlady) said that she saw the hold on the right side, two or three steps from the door and to the right of the steps. It was a small hole and the wood was rotten at the hole.

One Timothy Robinson testified that Jack Young, and the estranged husband of Selma Bailey, to whose apartment Jack Young had gone to unplug the toilet, had an altercation, and Young hurried out of the downstairs entrance and onto the porch. Robinson came to the Fannie Young home frequently because she was the mother of his child. He never saw a hole on the porch. Robinson took Jack Young first to Young's home to get Annie Charlton then they went to the hospital where it was learned that Jack Young had broken an ankle.

Upon a cross-examination of the medical clerk of the hospital to which Jack Young was taken, she stated that the medical record reads:

'The patient states that in the early morning he jumped off his porch onto the ground and he slipped and fell and twisted his ankle.'

There is no testimony as to the length of time a hole may have existed on the porch. Mager denies that there was a hole there, or that he was ever told of such a condition by any tenant. Mager does admit that, after the occurrence detailed herein, he was told of a loose board, and found a board about twelve inches long, with nails protruding from it, near the edge of the porch, which board had been taken from the floor.

None of the tenants ever complained or told Mager of a defect in the porch, although he came to this apartment home three or four times a month. There is nothing to show actual or constructive knowledge on the part of the landlord, Mager, of a defective condition of the floor of the porch. There is only the slightest suspicion, raised herein because of the rebuilding of a smaller porch made of concrete, that the wooden porch floor was deteriorating.

As stated above, the jury rendered a verdict for Jack Young. Counsel for Paul S. Mager then filed a motion for a judgment notwithstanding the verdict, and, in the alternative, if such motion was denied, for a new trial. The trial...