Summary
In Tair v. Rock Investment Co. (1942), 139 Ohio St. 629, the court was faced with the question of whether a penal sanitary regulation contained in the Municipal Code of the city of Cleveland imposed a duty for the breach of which a landlord could be held strictly liable in tort.
Summary of this case from Thrash v. HillOpinion
No. 28917
Decided May 13, 1942.
Negligence — Landlord and tenant — Section 2109, Municipal Code of Cleveland — Penal sanitary regulation — Civil liability rule requiring landlord to repair defects, not modified.
1. Section 2109 of the Municipal Code of the city of Cleveland is a penal sanitary regulation requiring tenement house premises to "be maintained thoroughly clean, sanitary and in good repair and free from any accumulation of filth, garbage or other refuse matter."
2. Such penal regulation does not by necessary implication modify the definite and established rule of civil liability requiring ordinary care on the part of a landlord to repair defects of which he has actual knowledge, or of which he would know if he exercised reasonable care in inspecting premises in his possession or under his control.
APPEAL from the Court of Appeals of Cuyahoga county.
The plaintiff instituted this action in the Municipal Court of the city of Cleveland to recover damages for injuries sustained July 10, 1940, when a tread gave way as he was descending an outside, common stairway at the rear of an apartment building owned and operated by the defendant.
The plaintiff was a tenant who occupied a room in a suite on the third floor. The stairway was the sole means of egress and ingress. It was constructed of heavy, parallel steel beams or stringers approximately four feet apart and extending upward from the ground. The treads were of oak. They rested upon and were fastened to angle irons that were bolted to the beams. The bolts holding one of the angle irons became rusted and were sheared off when the plaintiff placed his weight upon that tread. That end of the tread went down, and the plaintiff fell and was injured.
The trial resulted in a verdict and judgment for the plaintiff.
Upon an appeal to the Court of Appeals on questions of law the judgment was affirmed.
The case is in this court for review by reason of the allowance of the defendant's motion to certify the record.
Mr. George J. McMonagle, for appellee.
Messrs. Thompson, Hine Flory, for appellant.
The single assignment of error here urged by the defendant involves two statements made by the trial court in the charge to the jury. The first was given before the arguments. It reads as follows:
"I charge you, as a matter of law, that it was the duty of the defendant, The Rock Investment Company, to maintain the rear stairway of the premises at 5518 to 5612 Woodland avenue, Cleveland, Ohio, in good repair on July 10, 1940."
The second statement was made during the general charge after the arguments. The substance was the same but it was expressed in the following form:
"If you find by a preponderance of the evidence that the defendant herein failed to keep this stairway in good repair, then it would be failing in the duty which it owed to the plaintiff, and in the law this would constitute negligence."
Although there is nothing in the pleadings or charge to so indicate, counsel agree that these instructions were based upon the following ordinance designated as Section 2109 of the Municipal Code of the city of Cleveland:
"Cleanliness and Repair. Every tenement house and all rooms, passages, stairs, halls, floors, walls, ceilings, windows, doors, cellars, roofs, porches, balconies, thereof and all plumbing drains, water closets, privies, cesspools, and the yards, courts, passages, and appurtenances thereof shall be maintained thoroughly clean, sanitary and in good repair and free from any accumulation of filth, garbage or other refuse matter.
"Any person who shall cause or permit any filth, garbage, or other refuse to be cast into a shaft, a court, yard or other space, or shall commit any other nuisance in or about a tenement house, or shall in any way deface, destroy, or cause to be out of repair any part of a tenement house, or any fixtures therein, shall be subject to a fine as hereinafter provided."
Concededly, the settled common-law rule in effect in this state requires the owner of an apartment building to exercise ordinary care to keep common stairways in a reasonably safe condition. Restated more specifically, the rule exacts ordinary care on the part of a landlord to repair defects of which he has actual knowledge, or of which he would know had he exercised reasonable care in inspecting premises in his possession or under his control.
Reduced to its lowest terms, the precise question presented to this court is whether this definite and established rule of civil liability has by necessary implication been modified by a penal ordinance of this character.
As indicated by its title and its terms, the ordinance patently is intended primarily as a sanitary regulation. Significantly its application is not limited to tenement-house owners; instead, it employs the all-inclusive language "any person." Equally significant too, is the startling fact that it does not distinguish between demised premises and those used in common. Thus, if the ordinance were interpreted as an intended modification of the established rule, as contended by the plaintiff, the civil liability of a landlord would be the same irrespective of whether possession and control of the premises were retained by him. A majority of the members of this court are of the opinion that if any such change is to be injected into the law, it should be based upon express legislative enactment and not upon judicial inference. Palmigiana v. D'Argenio, 234 Mass. 434, 125 N.E. 592; Vallen v. Cullen, 238 Mass. 145, 130 N.E. 216; Chambers v. Lowe, 117 Conn. 624, 169 A. 912; Johnson v. Carter, 218 Iowa 587, 255 N.W. 864.
By the pleadings and the evidence negligence on the part of the defendant was made an issue in the case. The questioned instructions imposed absolute liability rather than the requirement of ordinary care. This was prejudicially erroneous.
The judgment of the Court of Appeals must be reversed and the cause remanded to the trial court for retrial.
Judgment reversed and cause remanded.
TURNER, MATTHIAS and HART, JJ., concur.
WILLIAMS and ZIMMERMAN, JJ., dissent.
BETTMAN, J., not participating.