Summary
In Martin, the guests were visiting a tenant of the building, while in Bowins the visitor was at the hospital to see a patient.
Summary of this case from Diesz v. Ampco Sys. ParkingOpinion
No. 91-CV-40497.
Decided July 15, 1992.
Daniel E. Whiteley, Jr., for plaintiffs.
Freund, Freeze Arnold and Thomas B. Bruns, for defendant Leo Konstam, d.b.a. Konstam Investment Co., d.b.a. Valley Vista Apartments.
This matter is before the court on defendant's motion for summary judgment. Defendant contends that no issue of material fact exists and that he is entitled to summary judgment as a matter of law.
This dispute is a result of an accident involving the plaintiffs, Mary Martin and Threcia J. Raifsnider, and a passenger elevator in defendant's apartment building in 1989. Plaintiffs entered defendant's apartment building with the intention of visiting a resident, and boarded a passenger elevator maintained and controlled by the defendant, with the intent to exit on the fifth floor. While en route, the elevator stopped and eventually dropped to the first floor. Plaintiffs brought suit for physical and emotional damages, alleging negligence in the maintenance, operation and control of the elevator.
Defendant's motion for summary judgment rests on the theory that no duty of care was owed to the plaintiffs due to their status as licensees. At common law, there are three distinct classifications of persons present on another's land, as follows: invitees, licensees and trespassers. While some jurisdictions have elected to abolish this trichotomy in favor of a generalized duty of reasonable care, the Ohio Supreme Court recently reaffirmed Ohio's adherence to the common-law classification scheme. Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265, 551 N.E.2d 1257.
Under common-law principles, an owner of land owes an invitee a duty of ordinary care, but only owes a licensee a duty to refrain from the wanton or willful causing of injury. Id. at 266, 551 N.E.2d at 1258. The distinction between an invitee and a licensee is dependent on whether the person enters the land for personal benefit or for the benefit of the owner. A person who enters an owner's land, with permission, for personal benefit is considered a licensee at common law. Id.
Defendant asserts that the Provencher analysis is controlling in the case at hand. Since plaintiffs entered his building and elevator for purely personal benefit, defendant contends the only duty owed was to refrain from wanton and willful injury. We cannot agree with defendant's position.
The Provencher holding is not dispositive of the issue in this case. The single issue in Provencher was the liability of the Ohio Department of Transportation for an injury suffered at a highway rest area. Id., 49 Ohio St.3d at 265, 551 N.E.2d at 1258. No issue was presented as to a landlord's duty of care to his tenant's guests. Indeed, the sole question considered by the court was whether Ohio recognized the "public invitee" standard of 2 Restatement of the Law 2d, Torts (1965), Section 332(2). Id. at 265, 551 N.E.2d at 1259.
The question of a landlord's duty to a tenant's guest is settled by looking to an earlier Ohio Supreme Court decision, Davies v. Kelley (1925), 112 Ohio St. 122, 146 N.E. 888. In Davies, the court determined that a landlord who retains control of certain common portions of an apartment building owes a duty to exercise reasonable care to both tenants and their guests and is liable for injuries occurring in these areas as a result of his negligence. Id. at 127, 146 N.E. at 890. Although the particular facts in Davies involved a defective railing surrounding a common porch area, the court's holding that landlords are liable for conditions in common areas is controlling in the present case. Defendant in his answer to plaintiffs' complaint admits that he maintained and controlled the elevator with the purpose of providing access to the various apartments. As such, the elevator would be considered a common area subject to the control of the landlord, and a duty of reasonable care was owed, not only to the tenants, but their guests as well. "* * * [S]uch duty and liability extends not only to the tenant himself, but also to members of his family, employees, guests, and invitees." (Emphasis added.) Davies, supra, at paragraph two of the syllabus.
It should be noted that defendant's motion cites appellate cases indicating a tenant's guests have only licensee status. E.g., Stephens v. Grad (1929), 31 Ohio App. 158, 166 N.E. 425; Ricciardo v. Weber (Dec. 22, 1989), Licking App. No. CA-3452, unreported, 1989 WL 155719, motion to certify the record overruled (1990), 50 Ohio St.3d 715, 553 N.E.2d 1367. However, other appellate courts have adopted the holding of Davies and extended the landlord's duty of ordinary care to guests of the tenant. E.g., Chiesa v. Thomas (1956), 103 Ohio App. 468, 76 Ohio Laws Abs. 590, 2 O.O.2d 456, 144 N.E.2d 476; Young v. Mager (1974), 41 Ohio App.2d 60, 70 O.O.2d 59, 322 N.E.2d 130. Encyclopedia writers have adopted this position: "The landlord's duty to exercise ordinary care with respect to the condition of the portion of the premises over which he has retained control extends to the tenant's invitees such as business patrons, and to his guests, family, and employees." 76 Ohio Jurisprudence 3d (1987, Supp. 1992), Premises Liability, Section 103.
Ordinarily, the ruling of the First District Court of Appeals in Stephens v. Grad that a guest of a tenant is merely a licensee would be binding on this court, since Stephens is a published decision of the court of appeals for this district, S.Ct.R.Rep.Op. 2(C)(2). However, Stephens was decided in 1929 and subsequent rulings by that court indicate the Stephens decision is no longer good law in this appellate district. Also, a reading of Stephens leaves one unsure whether the issue was even considered, and the Ohio Supreme Court in Davies had just previously ruled to the contrary.
In R.K.O. Midwest Corp. v. Berling (1935), 51 Ohio App. 85, 3 O.O. 293, 199 N.E. 604, the First District extended a landlord's duty of care to business invitees of a tenant. Additionally, this duty was held to be applicable to employees of a tenant in Weigel v. Cottage Bldg. Loan Co. (1941), 68 Ohio App. 467, 23 O.O. 189, 42 N.E.2d 171. The holdings in these cases are logically inconsistent with defendant's theory that the common-law distinctions between invitees and licensees apply to the guest-landlord relationship.
To illustrate this inconsistency, the facts of the Weigel case need only be examined. In Weigel, the court held that a landlord owed a duty of ordinary care to the plaintiff, a laundress in the employ of a tenant, in a common basement area. Id. at 470, 23 O.O. at 191, 42 N.E.2d at 173. Additionally, the court held that the plaintiff was an invitee of the tenant and, as such, the landlord's invitee as well. Id. This ruling is in direct opposition to the defendant's contention that the relationship between a tenant's guest and the landlord is determinative of the duty owed. Defendant's motion rests on the assumption that, since plaintiffs' presence in his building was of no personal benefit, plaintiffs were merely licensees and were owed only the duty of restraint from wanton and willful injury. The Weigel decision in no way supports this contention. The plaintiff in Weigel was employed by a tenant to assist in laundry work. Id. at 469, 23 O.O. at 190, 42 N.E.2d at 172. No direct benefit was conferred on the landlord, yet the court still determined a duty to exercise reasonable care existed toward the plaintiff. The First District went even further in Weigel and held: "The liability of the landlord results from a direct relationship with the invitee of the tenant who in legal contemplation is the landlord's invitee." Weigel, supra, 68 Ohio App. at 470, 23 O.O. at 191, 42 N.E.2d at 173. See, also, Porter v. Holmes (C.P. 1934), 22 Ohio Law Abs. 654, 656, 1 O.O. 496, 497, 2 Ohio Supp. 289, 291, where the court stated: "Indeed the right of the guest or invitee of the tenant is not derivative. It is his own right that he asserts — not the tenant's."
In Berling, a business invitee was deemed to be deserving of a duty of reasonable care. Id. at the syllabus. Perhaps no direct benefit accrues to a landlord from the presence of a tenant's business invitee. To be sure the presence of employees and/or patrons do enable the tenant to conduct a profitable business, which in turn incidentally benefits a landlord through timely rental payments and lease renewals. Similarly, a landlord who prohibited a tenant's visitors might experience great difficulty in renting or re-renting his apartments. Thus, it is implied in law that the invitees of the tenant are invitees of the landlord, and the landlord owes them a duty of reasonable care. Weigel, supra, 68 Ohio App. at 470, 23 O.O. at 191, 42 N.E.2d at 172; Porter, supra, 22 Ohio Law Abs. at 656, 1 O.O. at 497, 2 Ohio Supp. at 291.
Therefore, the ruling in Davies that a landlord retaining control of common areas owes a duty of ordinary care to a tenant's family, employees, and guests is applicable in this jurisdiction and to the case at bar. Quite obviously, a contrary ruling would be bizarre in that an elevator containing a tenant and a tenant's guest could fall and the tenant could recover for injuries, but the other passenger could not. Surely, the law could not be thus.
Summary judgment is only appropriate where no genuine issue of material fact is presented by the evidentiary materials and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). "That standard frequently precludes summary judgment in negligence actions where the trier of fact must evaluate conduct as negligent or nonnegligent even when the conduct is undisputed." Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 274, 10 OBR 386, 389, 461 N.E.2d 1331, 1335. Genuine issues of material fact as to a breach of duty preclude the granting of summary judgment. Howington v. Hoerst (1986), 33 Ohio App.3d 320, 31 OBR 310, 515 N.E.2d 977. Plaintiffs allege negligence in the management, control and operation of the elevator, as well as a failure to repair and maintain the elevator in a safe condition. The question of whether defendant breached his duty by failing to repair and maintain the elevator involves genuine issues of material fact.
For all of the foregoing reasons, the court holds that the defendant owed the plaintiffs a duty to exercise reasonable care, and questions concerning a breach of that duty are genuine issues of material fact.
Defendant's motion for summary judgment is denied.
Motion denied.