Opinion
Decided November 29, 1937.
Landlord and tenant — Negligence — Tenant in exclusive control — Injured by defective flooring — Landlord not liable, when.
Where a tenant, who is in exclusive control of the premises, is injured by reason of the breaking of a floor board in a hallway, no liability attaches to the landlord in the absence of any affirmative action by him during the tenancy, or any express warranty or deceit by him as to the safe condition of the premises.
APPEAL: Court of Appeals for Hamilton county.
Messrs. Cramer Gordon, for appellant.
Mr. Benjamin S. Schwartz, for appellee.
The plaintiff has appealed from a judgment of the Court of Common Pleas against her.
Plaintiff alleged in her petition that she had been a tenant of the defendant, and during her tenancy she was injured by a board giving way in the floor of a hallway of the premises, and that this occurred through the negligence of the defendant in that "the flooring boards were in a rotted condition and were loose and detached and that the defendant knew or should have known with the exercise of ordinary care the condition of the premises, and did negligently permit said nuisance to continue."
At the trial the evidence disclosed that this hallway was in the exclusive possession of the plaintiff, and that one of the flooring boards broke when she stepped on it. There was evidence that an agent or independent contractor had taken this board up a little more than a month previously to place some electric wires thereunder. There is no evidence from which a rational inference could be drawn that the taking up and replacing of these boards had anything to do with the breaking of the boards, which was the cause of the plaintiff's injury. That being true, the interesting question of the liability or non-liability of the landlord, because of his affirmative action through an agent or independent contractor during the tenancy, which was principally argued at the bar and in the briefs, is not presented by the record, because, upon any theory of the evidence and law, such interference must be the proximate cause of the injury in order to have liability attach.
We have, then, a case in which a tenant was injured during her tenancy of premises, over which she had exclusive control, by reason of a defect developing in such promises. Under such circumstances, the lessor is not liable in the absence of an express warranty of the safe condition of the premises, or deceit as to their condition. Shinkle, Wilson Kreis Co. v. Birney, 68 Ohio St. 328, 67 N.E. 715; Goodall v. Deters, 121 Ohio St. 432, 169 N.E. 443.
The court committed no error in sustaining the motion for an instructed verdict and in entering judgment thereon.
The judgment is affirmed.
Judgment affirmed.
ROSS, P.J., HAMILTON and MATTHEWS, JJ., concur.