Opinion
No. 31644
Decided April 20, 1949.
Negligence — Lessee's employee may not recover damages from lessor for injuries — Elevator formerly in safe condition — Lessor out of possession and control — Lessor not under agreement to maintain and repair elevator — Or connected with conducting business on premises — Statute, Industrial Commission regulation and ordinance, relating to elevators, inapplicable.
1. An employee of the lessee of premises, who sustained physical injuries by reason of a claimed defect in an appurtenance to an elevator on the leased premises, may not successfully maintain an action against the lessor of the premises to recover damages for such injuries, where, at the commencement of the lease, the elevator and its appurtenances were in a good and safe condition and equipped in compliance with lawful requirements, the lessor was out of possession and control of the premises, made no agreement with respect to maintenance and repair, and was in no way connected with the conduct of the business and activities being carried on on such premises.
2. In such circumstances, neither subsection 4 of Section 1027, General Code, relating to protective measures as to elevators required of the "owners and operators" of certain establishments, Bulletin 110, issued by the Department of Industrial Relations of the Industrial Commission of Ohio, pertaining to elevators and their equipment, nor Part 5 of Ordinance 7154 of the city of Akron, being a part of the building code of that municipality and pertaining to elevators and elevator shafts, is applicable, and neither may be invoked by the injured employee to create liability against the lessor of the premises upon which the injury occurred.
CERTIFIED by the Court of Appeals for Summit county.
The First-Central Trust Company of the city of Akron, as trustee, has been for a number of years the owner of the building and land in Akron, in and upon which the Portage Hotel is located. In 1935, a written lease was entered into between the trust company, as trustee, and the Portage Bereal Company, whereby the premises mentioned, with the appurtenances, were leased to the Portage Bereal Company for use as a hotel for a term beginning in 1935 and ending in 1956.
No unusual or extraordinary provisions were contained in the lease and the rental was based upon a percentage of the amounts received by the lessee from specified sources connected with the operation of the hotel.
It is conceded that the electrically powered elevators in the hotel building were in a good and safe condition at the commencement of the lease and it further appears that the lessor did not agree to maintain or repair such elevators.
One of these elevators, running from the basement to the upper floors, was used principally for the transportation of the employees of the lessee and for the carriage of light freight and laundry. About January 1, 1945, the sliding metal door guarding the basement entrance to the shaft of the elevator referred to became broken and was replaced, by the lessee, with a hinged, wooden gate, presumably as a temporary measure, which did not fit as closely by some inches to the sill of the elevator cage as had the metal door. However, the Department of Industrial Relations of the state of Ohio, Division of Elevator Inspection, issued certificates of operation for the elevator in question in March of 1945 and again in March of 1946, each certificate being effective for one year from the date of issuance.
Early on the afternoon of June 29, 1946, Carrie R. Kauffman, employed as a maid by the lessee and about to resume her duties, entered the described elevator cage at the basement level. The cage was then occupied by the operator and another employee. As the elevator cage was started upward, Mrs. Kauffman's right foot slipped from the sill and her body was caught between the floor of the elevator cage and a beam extending across the top of the basement entrance to the elevator shaft, whereby she was severely and painfully injured.
Sometime later, Mrs. Kauffman brought this action in the Court of Common Pleas of Summit county against The First-Central Trust Company, as trustee, the lessor of the premises occupied by the Portage Hotel, to recover damages for such personal injuries, upon the claim that the lessor had violated certain duties of a protective nature, imposed on it by statute and by pleaded ordinances of the city of Akron, in permitting the placement and maintenance of the inadequate wooden gate at the basement entrance to the elevator cage, and that such violation of the imposed duties was a direct and proximate cause of the injuries sustained by plaintiff.
The lessor denied any liability or responsibility in connection with the placement and maintenance of the wooden gate and further denied any liability to plaintiff for the injuries she had received.
The case came on for trial before the court and a jury. At The close of plaintiff's evidence in chief, the court sustained defendant's motion to arrest the case from the jury and to render judgment for defendant. Thereafter, the petition as amended was dismissed and final judgment entered for defendant.
An appeal was perfected to the Court of Appeals on questions of law and that court affirmed the judgment below. However, the judges of the Court of Appeals found that their judgment of affirmance was in conflict with the judgment pronounced by another Court of Appeals in the case of Bevan, Admx., v. Century Realty Co., 64 Ohio App. 58, 27 N.E.2d 777, and certified the case to this court for review and final determination.
Messrs. Brouse, McDowell, May, Bierce Wortman, for appellant.
Messrs. Wise, Roetzel, Maxon, Kelly Andress and Messrs. Ferbstein Sicherman, for appellee.
As a preliminary observation it should be noted that although under the lease in question the lessor reserved certain rights of examination and inspection pertaining to the leased premises, the premises themselves were turned over to the lessee and were wholly within its possession and control. Moreover, the lessor made no agreement with respect to the maintenance and repair of the instrumentalities and facilities employed by the lessee in conducting its hotel business, and at the time the lease took effect the elevator involved was equipped in compliance with lawful requirements.
It is generally held that the reservation by a lessor of the right to enter the leased premises for the purposes of examination and inspection, or for other like purposes, imports no reservation of control by him over the premises. Stone, Admx., v. Sullivan, 300 Mass. 450, 15 N.E.2d 476, 116 A.L.R., 1223.
And the bare fact, as exists here, that a policy of general liability insurance covering elevators in the leased premises was issued to the lessor and the lessee as the insured is not indicative of an agreement on the part of the lessor to keep the elevators in repair. Flynn v. Pan American Hotel Co., 143 Tex. 219, 183 S.W.2d 446, a case resembling the instant one in several particulars.
Certain general propositions may be accepted as elementary. In 2 Restatement of Torts, 966, Section 355, we find the following language:
"Except as stated in Sections 357 and 362 [covenant by lessor to repair and repairs negligently made by lessor], a lessor of land is not subject to liability for bodily harm caused to his lessee or others upon the land with the consent of the lessee or sub-lessee by any dangerous condition which comes into existence after the lessee has taken possession."
In harmony with the rule just quoted is the fourth paragraph of the syllabus in Hess v. Devou, 112 Ohio St. 1, 146 N.E. 311, which reads:
"A lessor of a building, out of possession and control, is not responsible for injuries caused by a defective condition of the premises arising during the continuance of the lease where no claim is made of defects in original construction."
And in the first paragraph of the syllabus in the case of Marqua v. Martin, 109 Ohio St. 56, 141 N.E. 654, this court declared:
"The owner of a building, out of possession and control, is not liable to persons upon the premises, by invitation of the lessee thereof, for injuries resulting from the physical condition of such premises, unless such liability is imposed by contract or statute."
As to elevators, if a lessee has the sole control and management of an elevator in a leased building, he and not the lessor must usually answer to one who is injured because of defects in the elevator or by reason of surrounding dangers. 18 American Jurisprudence, 539, Section 27; Marcovitz, Admr., v. Hergenrether, 302 Ill. 162, 134 N.E. 85; Tibbetts v. Wentworth, 248 Mass. 468, 143 N.E. 349.
In the case of Marcovitz, Admr., v. Hergenrether, supra, it is remarked in the opinion:
"In order to charge owners of leased premises with responsibility for the existence of the alleged defective elevator, elevator well or hoistway, it was necessary for plaintiff to allege and prove that the conditions complained of existed at the time of the letting or that the owners had covenanted to repair or to remedy the condition or nuisance complained of." Compare Sinton v. Butler, 40 Ohio St. 158.
Counsel for plaintiff are in substantial agreement with the foregoing statements and say in their brief "that the only question involved in this appeal is whether the appellee was under a duty to the appellant in reference to the elevator in which the appellant was crushed."
Arguing that the lower courts were in error and that plaintiff was entitled to have her case go to the jury, her counsel insist that defendant violated the following duties which it owed to plaintiff and that such violations created liability against it:
"1) A common law duty,
"2) A duty imposed by subsection (4) of General Code Section 1027,
"3) The duties imposed by bulletin 110 issued by the Department of Industrial Relations of the Industrial Commission of the state of Ohio, and
"4) Ordinance 7154 of the city of Akron, being the Building Code of that city."
We shall discuss these matters in the order listed.
1. "At common law, subject to certain exceptions, the occupier or tenant and not the landlord was liable for injuries occurring to a third person on or off the premises: * * *. A tenant in possession is practically the owner of the property. If the building afterwards became dangerous in law, the owner was not liable for an injury occurring thereon * * *." Harte v. Jones, 287 Pa. 37, 39, 134 A. 467, 47 A. L. R., 843, 844.
2. Section 1027, General Code, reads in part:
"The owners and operators of shops and factories [including hotels] shall make suitable provisions to prevent injury to persons who use or come in contact with machinery thereon or any part thereof as follows: * * *
"4. They shall case in all unused openings of elevators and elevator shafts and place automatic gates or floor doors on each floor where entrance to the elevator carriage is obtained. They shall keep such gates or doors in good repair and examine frequently and keep in sound condition the ropes, gearing and other parts of elevators."
In our opinion this section and subsection of the General Code, in relation to the instant case at least, apply to the owners and operators of a business which is being conducted on real property and has no application or reference to the lessor of the property, out of possession and control, and who is not connected with the activities being carried on on the premises. Such interpretation finds support in the case of Lee v. Smith, 42 Ohio St. 458, 51 Am. Rep., 839, wherein it was held that a statute, requiring "any owner or agent for owner of any factory, workshop, tenement house, inn or public house" to install fire escapes, imposed such duty on a tenant using a part of the building for factory purposes, and not on the owner of the building.
Attention is directed to the case of Chicago N.W. Ry. Co. v. Booten (C.C.A. 8), 57 F.2d 786, for a thorough discussion of a question similar to the one involved here, and where a conclusion corresponding to the one we have come to was reached. Compare Sorenson v. Kalamazoo Auto Sales Co., 201 Mich. 318, 167 N.W. 982, and Flynn v. Pan American Hotel Co., supra ( 143 Tex. 219, 183 S.W. [2d], 446). And see 52 Corpus Juris Secundum, "Landlord and Tenant," 37, 38, Section 417.
The rule is well settled that a lessee of premises, having the entire control thereof, is, so far as third persons are concerned, the owner. Midland Oil Co. v. Thigpen (C.C.A. 8), 4 F.2d 85, 53 A. L. R., 311, writ of error dismissed, 273 U.S. 658, 71 L.Ed., 826, 47 S. Ct., 343; Simms v. Kennedy, 74 Fla. 411, 76 So. 739, L.R.A. 1918C, 297; 32 American Jurisprudence, 695, Section 817.
3. Bulletin 110 is a code of specific requirements relating to elevators, their maintenance and operation, promulgated by the Industrial Commission of Ohio, and has particular reference to the duties owed by an employer toward his employees. Likewise, in our opinion, this rule of the Industrial Commission does not pertain to the lessor of a building, who has surrendered the promises to the lessee under a long term lease in a good and safe condition and who is in no way linked with the management or direction of the affairs being conducted on such premises.
4. Ordinance No. 7154 of the city of Akron comprises the building code of that municipality and was enacted primarily to insure the safe construction of buildings, to prevent and lessen the hazards of fire, and to protect the interests of the public as a class. Part 5 thereof relates to elevators and elevator shafts.
We hold to the view that such ordinance may not properly be invoked in a situation like the present one to impose a civil liability in tort on the lessor of a building, who is out of possession and control, for injuries to an employee of the lessee, which employee is a stranger to the lessor.
"To establish actionable negligence it is fundamental that the one seeking recovery must show the existence of a duty on the part of the one sued not to subject the former to the injury complained of, a failure to observe such duty, and an injury resulting proximately therefrom." Baier v. Clev. Ry. Co., 132 Ohio St. 388, 391, S N.E.2d 1, 2.
Here, there was no fault in the original construction and installation of the elevator, lawful requirements had been met by the lessor with respect to the elevator door, and the defect about which complaint is made occurred long after the lessee assumed dominion over and took charge of the premises. See Garland v. Stelson, 292 Mass. 95, 197 N.E. 679. Compare Tralle, Admx., v. Hartman Furniture Carpet Co., 116 Neb. 418, 217 N.W. 952.
Because of the position taken, it becomes unnecessary to discuss or decide other questions raised in the briefs and oral arguments of counsel, including the claimed contributory negligence of the plaintiff.
Since the statute, rule and ordinance relied on by the plaintiff do not affect the defendant in the circumstances described and since otherwise there is no legal liability resting on the defendant for the injuries to plaintiff, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART, TURNER and TAFT, JJ., concur.