Update: The Supreme Court handed down a merit decision in this case on February 12, 2014. Read the analysis here.
On April 24, 2013, the Supreme Court heard oral argument in the case of Lauren J. Mann v. Northgate Investors LLC, d.b.a. Northgate Apartment, 2012-1600. The case is before the Court on conflict certification. The certified question is whether the landlord owes the statutory duties of R.C. 5321.04(A)(3) to a tenant’s guest properly on the premises but on the common area stairs at the time of injury.
Plaintiff Lauren J. Mann was visiting a friend who was a tenant at the Defendant’s Northgate Apartment. The friend lived on the second floor and the only way out of the apartment was down two flights of stairs. The common area outside the apartment and the stairs were both unlit. When Mann left the apartment, she had to go down two flights of stairs in total darkness. As she reached the bottom of the stairs, she stumbled through the glass plates on one side of the exterior door and was injured. Mann sued, alleging that Northgate negligently failed to maintain adequate lighting in the stairwell, creating a danger to residents and guests. The trial court concluded that R.C. 5321.04(A)(3) did not apply to Mann’s case and granted summary judgment to Northgate. The trial court also found that the open and obvious danger doctrine applied in the case.
The Tenth District Court of Appeals reversed, finding that Mann’s evidence was sufficient to create genuine issues of material fact for trial. The appeals court concluded that R.C. 5321.04(A)(3) applies to a tenant’s guests in any common area, and that Northgate was negligent per se in failing to properly maintain a common area in its apartment building. The appeals court also held that the open and obvious doctrine did not negate Northgate’s liability. Read the oral argument preview of the case here.
R.C. 5321.04 – Landlord Obligations under Landlords and Tenants Act
(A) A landlord who is a party to a rental agreement shall do all of the following
(3) Keep all common areas of the premises in a safe and sanitary condition.
Shump v. First Continental-Robinwood Assoc., 1994-Ohio-427 (syllabus)
A landlord owes the same duties to persons lawfully upon the leased premises as the landlord owes to the tenant. (Stackhouse v. Close , 83 Ohio St. 339, 94 N.E. 746, paragraph one of the syllabus; 2 Restatement of the Law 2d, Torts , Sections 355 to 362, approved and adopted; and Restatement of the Law 2d, Property , Sections 17.6 and 19.1, approved.)
Sikora v. Wenzel, 2000-Ohio-406 (syllabus)
A landlord’s violation of the duties imposed by R.C. 5321.04 (A)(1) or 5321.04(A)(2) constitutes negligence per se, but a landlord will be excused from liability under either section if he neither knew nor should have known of the factual circumstances that caused the violation. (Shroades v. Rental Homes, Inc. , 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774, clarified.)
The certified question should be answered in the negative for two reasons. Subsection (A)(3) contains no language indicating it applies to guests, and the imposition of such a duty would not be consistent with the purpose of the Landlord Tenant Act, which was to govern rights, duties, and responsibilities of landlords and tenants, not others. In addition, violation of (A)(3) does not constitute negligence per se because the statute just embodies a common law duty of ordinary care, and no duty beyond that. Unlike Sections A(1) and (A)(2), that section is not specific enough to impose negligence per se. Any statutory duties owed by the landlord to a tenant’s guests are only owed to those guests when they are in the leased premises. The (A)(3) section of the statute only imposes a duty of ordinary care in the common areas. That duty is governed by the jurisprudence on premises liability. Duty to an invitee is to keep the premises reasonably safe and to warn of any latent or hidden dangers. And there is no such duty when the danger is open and obvious.
Counsel for Amicus OAJ split argument time with Mann’s attorney. Both argued that the certified question should be answered in the affirmative.
Mann’s counsel argued that the case came down to the meaning of the term “premises” which is defined in the statute, and specifically includes common areas. Because Mann was lawfully on the premises, she was entitled to all the statutory protections. All duties owed by the landlord under the statute are owed both to the tenants and their guests. The violation in this case is a statutory violation, and because of that the open and obvious danger doctrine is not applicable.
Amicus Counsel argued that the statute defines leased premises as including the common areas, and that in addition, the common law on which the statute was based treats the duties owed to tenants and their guests as the same–the guest stands in shoes of the tenant. The only thing properly before the Court is the interpretation of the (A)(3) section of the statute—the open and obvious doctrine is not before the Court. The Court has already held that (A)(1) and (A)(2) apply to tenants and their guests—there is no reason to single out (A)(3) for different treatment.
What Was on Their Minds
The Common Areas
Justice Lanzinger commented that the statute did not say for whom the common areas were to be kept safe. The leased premises are within the tenant’s control, but weren’t the common areas places where the landlord should be vigilant?
Wasn’t the landlord’s duty to screw in a light bulb and make sure it worked, asked the Chief, with visible skepticism toward the defendant’s argument. Wasn’t the landlord on notice that the lights weren’t working?
Justice French commented that it seemed illogical to her that a landlord would have less responsibility in the common area than in a tenant’s leased premises. Why shouldn’t there be liability in the common areas where the landlord has exclusive control?
Statute versus Common Law
Justice O’Neill asked if the defendant was arguing that the landlord owed the tenant’s guest a common law, but not a statutory duty of ordinary care?
Was the defendant trying to use the statute to narrow the common law, asked Justice Pfeifer? If there were no statute what duty would the defendant owe to the tenants and their guests?
Invitees and Premises Liability
A landlord does owe invitees a duty of ordinary care, Justice Pfeifer commented, didn’t the defense agree? (yes)
As long as the guest was an invitee, shouldn’t the landlord owe the guest the same duty as to the tenant, asked Justice Lanzinger?
The Open and Obvious Doctrine—Go Borrow a Flashlight?
In Ohio, the open and obvious doctrine is a no duty rule, so if applicable, the case is over. Chief Justice O’Connor and Justice Pfeifer were very skeptical about the defendant’s arguments on this point. When defense counsel argued that the darkness itself should have served as a warning of the danger to the plaintiff, Justice Pfeifer asked how the plaintiff was supposed to get out of the building? When defense counsel suggested she might borrow a flashlight, Pfeifer asked for case law supporting the proposition that where it is dark in an area where the public usually travelled, you had ask for a flashlight?
Doesn’t the open and obvious doctrine presume some alternative? How on earth was the plaintiff supposed to get out of the building, asked the Chief?
More skepticism from Justice O’Donnell. He asked if it was the defense position that the more the landlord failed to maintain the common areas, the more open and obvious things became? (the bigger the pothole gets, the more open and obvious it would be?)
Justice O’Neill asked if it was plaintiff’s position that if there was a statutory violation, open and obvious did not apply? (answer-yes)
Lucky for You it Wasn’t the Tenant Who Fell
Said the Chief to defense counsel, about his reading of the duty owed in the common area. To which Justice O’Donnell added that if it had been the tenant who had fallen, would it still have been open and obvious?
How it Looks from the Bleachers
To Professor Bettman
This looks like a clear and unanimous loss for the defense. The defense view that the (A)(3) section of the statute shouldn’t apply to tenant’s guests in the common area was greeted with skepticism by all who spoke. The Court has already held that (A)(1) and (2) apply, and has already held that landlords owe the same duty to tenants’ guests as they do their tenants, so this is really only a baby step. And it really doesn’t make sense to limit the landlord’s duties to tenant’s guests just to the leased premises where after all the tenants have more control than they do in the common areas. And the idea that the plaintiff had some other way out of the apartment was ridiculous.
To Student Contributor Elizabeth Chesnut
On the whole, the Court seemed unreceptive to the notion that a darkened stairwell presented an “open and obvious” danger, particularly because the stairwell was the only way out of the apartment. Since previous case law has extended the rest of the duties of a landlord to a tenant’s guests under this statute, there is no reason that the Court will not apply this subpart as well and answer the certified question in favor of Mann.