*1 Argued May Appeals and submitted of the Court of decisions and trial court are 29,1988 proceedings September reversed and remanded to the trial court for further
BELLIKKA, Review, Petitioner on GREEN, Defendant, COLLEGE, COLUMBIA CHRISTIAN Respondent Review.
(CC S34821) A8507-04251; A42728; CA SC *2 Sather, Portland, Stan argued peti- the cause and filed the tion for petitioner on review.
631-a Lang Smith, Portland, Mitchell, & Christ, of Thomas M. petition response argued and filed the cause respondent review.
JONES, J. concurring part separate opinion
Gillette, J., filed part. specially concurring in
631-b *4 JONES, J. who in this case is whether a landowner question person a to a third tenant liable property
rents real property the a condition on rented dangerous injured the time the rental. known to the landowner at injury against action brought personal Plaintiff (the Green, College tenant, and Columbia Christian Carol had rented landowner, College the College), alleging lawn into which the with a concealed hole property The cir treating” fell while “trick or on Halloween. plaintiff plaintiffs motion to dismiss granted College’s cuit court 2lA(8) as not complaint against College under ORCP to constitute a claim. The stating ultimate facts sufficient Green, App Or Appeals affirmed. Bellikka Court (1987). decision of the Court We reverse the Appeals. amended allegations of the second com- factual liability may
plaint plaintiff predicates College’s on which College owned a residence on be summarized as follows. The it Green in Portland, which rented to Carol N.E. 92nd Place year, At on Halloween of the same February p.m. 1984. 5:30 the lawn her children across plaintiff accompanied pre-school of the house to to the front door going the children were There porch light was on at residence. trick-or-treat. fell and leading the front door. Plaintiff was no sidewalk stepped partially concealed hole injured was after she into (1) stating complaint relief: filed amended five claims for “STAT Plaintiff HABITABILITY,” (2) “IMPLIED WARRANTY OF WARRANTY OF UTORY HABITABILITY,” TORT,” (4) (3) “COMMON LAW NEGLI “STATUTORY GENCE,” (5) Each defendant LAW NEGLIGENCE.” claim named “COMMON tenant, party appeal. College; is not a the fifth claim included defendant who replead complaint reference to amended with leave to without The court dismissed the habitability (claims implied warranty of and Tenant Act and Residential Landlord (2)). (1) and repled ignored in the five claims for relief Plaintiff the instruction and same plaintiffs complaint. dismiss first and second Defendant moved to second amended allegations. only, plaintiff repled previously had dismissed claims on the basis that complaint entirety thereupon its with The court dismissed second amended prejudice. dismissed, third, although result, plaintiffs were there fourth and fifth claims As appealed the entire dismissal effect the court. Plaintiff was no motion before plaintiffs Appeals, claims. The trial which considered the merits all Court complaint brings this court as well. all five claims before court’s dismissal the entire *5 the the paved driveway. lawn about three feet from Plaintiff alleged that the hole had been in the lawn the time prior to Green, the defendant rented house to that defendant and knew should have known of the existence of hole and the give warning failed to fix or about hole. claims for relief are on
Plaintiffs based five interre- liability. lated theories of Plaintiffs first and third claims are alleged based on duty defendant’s violation of its under the (RLTA), Residential Landlord and Tenant Act ORS 91.700 to 91.895, to maintain the rental premises in a habitable condi- tion. The second claim on is based defendant’s alleged breach implied warranty premises that the rental are habitable. The fourth and fifth claims are based on negli- common-law gence.
RESIDENTIAL LANDLORD AND
TENANT ACT CLAIMS provides The RLTA that landlord shall all “[a] during tenancy times maintain unit a dwelling 91.770(1).2 habitable condition.” ORS This court held in Sellars, Humbert v. (1985), Or that guest tenant’s may damages recover from the landlord for duty violation of the landlord’s under the Act. Plaintiff relies on an extension of Humbert her liability theories of under the RLTA. start We with brief discussion of that case.
In Humbert the plaintiff guest who, was a on leaving apartment, the tenant’s slipped and attempting fell while wade through standing several inches of water on the tenant’s patio. The questions plaintiff before this court were whether other than a tenant could state arising a cause action under RLTA, Humbert could plaintiff whether the rely a violation of the statute for the basis of her cause of action. persons
We held that pro- other than tenants were tected the RLTA. The external floor contiguous patio within the tenant’s exclusive control was more like the other within the dwelling grounds. floors unit than it was like statutory duty to “good repair” maintain in covers “floors” “grounds.” Because evidence had been offered that keep good repair, landlord had failed to we patio appendix 1. See summary judgment for defendant granting
concluded improper. landlord was statutory case, bases her war- present plaintiff
In the RLTA, claiming applies it ranty claim on to the Specifically, in addition floors. grounds violated the RLTA rent- contends that defendant plaintiff the lawn. She relies on ORS premises with the hole in ing the 91.770(1) (f), provides: which tenancy during
“A shall at all times maintain landlord dwelling purposes unit a habitable condition. For of this section, dwelling unhabitable it unit shall considered *6 substantially lacks: jf: jc ‡
iff
“(f) Building,
appurtenances
time
grounds and
at the
every part
agreement
in
of the rental
the commencement
debris,
clean,
sanitary,
free from all accumulations
and
vermin,
filth, rubbish, garbage,
and
and all areas
rodents
clean,
kept
every part
sanitary
the landlord
in
under control of
rubbish,
debris, filth,
gar-
from all accumulations of
and free
* *
bage, rodents and vermin
floors
Plaintiff seeks to erase the distinction between
made in Humbert. The statute sets
grounds
and
that this court
parts
property.
different
of the
With
different
standards
for
—
—
at issue Humbert
the landlord must
to “floors”
regard
they
must
“good repair.”
“grounds,”
maintain them in
As
“clean, sanitary and
from accumulation of debris.”
be
free
91.770(1) (f)
create a
sanitary requirements
of ORS
do not
warranty
habitability
grounds pre
to include a hole
were leased. Plaintiffs
claim which
sent when
properly
statute was
dismissed.
relies
action, plaintiff argues that
In her third cause of
gives
statutory
against
to a
tort claim
the landlord.
RLTA
rise
Erwin,
(1979),
Brewer v.
Statements of a general principle category, fol- particular instances, lowed a list of often diverging reflects *7 of goals legislative drafting. general may statement alone open-ended, be too communicating too little to those who must it comply leaving argument with and too much to decision, hoc post agency unless is assigned some the task of See, refining the generality by e.g., Megdal rules. v. Board of Examiners, (1980) (standard Dental 288 Or conduct”). “unprofessional Those who bear the burden of compliance only want notice of prior obligations, their they also obligations acceptable want those confined within many requirements bounds. The drafters therefore state with hand, particularity. some On the it is unsatisfac- other often tory particular to of the every general objective list form to be paramount, achieved. If the demand for the list specificity any principle can enacted without reference to overall or, needed, by if a collective term is it in the form of a phrasing definition. done in the RLTA. ORS might
This have been (a) (k) 91.770(1) through have items without first could listed requirement habitable condi- stating a to maintain general tions, or as a definition of “habitable condition.” This however, requires imagine drafters to and to list too approach, theme, including future tech- many variations of common instance, 91.770(1)(e) had changes. For ORS been nological era, it a gaslight required would not have land- written in the lights lights. electric to maintain those lord who installed already has that other condi recognized This court (k) (a) can paragraphs through tions besides those listed Sellars, quarters unhabitable. Humbert v. make residential legislature general to a supra. But when the chooses state both specifics do more than specifics, standard and list place beyond dispute; they also particular subjects their general refer the to matters of the same scope standard generis.” kind, “ejusdem often in Latin as We think phrased legislature meant order fall short what the condition,” other of residential shortcomings “habitable of the same kind pose danger safety must health or requirements of specific and as as those which the serious (k) (a) prevent. legisla paragraphs through are meant requirements to the constructed or safety ture chose to limit Sanitary have occupied requirements area of the residence. are of all sweep, perils. but less inclusive list broader specific examples general guides after the statement both category general principles each limits this court. Within included, matters should be but the indicate what additional categories for different means creation of different standards applied of one cannot be others. category that the standards recovery damages if the “statutory A tort” allows damages suffered came about as plaintiff can show legislature passed which the result of the violation of a statute which group plaintiffs, recourse to a intending give the terms of seeking then redress under plaintiff includes the gives that the RLTA Brewer v. Erwin establishes the statute. tort, shows that the statutory to a and Humbert v. Sellars rise persons protected by present plaintiff group is within the However, mentioned, plaintiff has failed to the statute. of the statute this case. any that there was violation show statutory benefit from the plaintiff For that reason cannot
637 recognized plaintiffs Humbert, and third cause of tort properly action was dismissed.
IMPLIED OF HABITABILITY CLAIM WARRANTY “[bjecause
Plaintiff contends that of the contractual agreement for the rental between Defendant Tenant College Green at all and Defendant Landlord there was times implied warranty by habitability given an Defendant Land- protection College lord fully for the of the tenant and others law- property implied permission on the with the of the by alleges tenant,” which was violated defendant. Plaintiff no obligations beyond contractual between landlord and tenant those created RLTA. recognized implied warranty court
This has not an habitability, legisla and we decline to do inso this case. The habitability ture has defined in a ORS 91.770 manner which plaintiffs excludes claims. urges
Plaintiff
this court to follow the lead of other
recognized
implied
state courts which have in some cases
an
warranty
habitability.3
many
opinions
However,
of these
represent
judicial attempt
disputes
with
deal
between
any legislation.
landlords and tenants
absence
authors of the Uniform
Act,
Residential Landlord and Tenant
Oregon’s
original statutory
based,
on which
act is
drew the
habitability
many
statement of
of these same cases. See
§ 2.104,
7B Uniform Laws
461;
Annotated
Comment
supra,
legislature
Erwin,
Brewer v.
COMMON-LAW liability defendant’s theory justifying Plaintiffs However, plain law has varied over time.5 under common consistently against can a claim argued tiff has that she state The separate provisions from the of the RLTA. defendant aspects in all supersede RLTA not the common law does Bierek, 42, personal liability. See Jones v. 306 Or 755 injury (1988). P2d 698 plaintiff limited her Appeals,
Before the Court of her fell one of argument a claim that the facts of case within to (Second) of exceptions to section 356 of the Restatement (1965).6 Appeals held that it did not. Torts Court of 4 significant changes original draft The most from the of the Uniform Residential adoption in Or and came with the of ORS 91.770 1973. Laws Landlord Tenant Act (1) 559, present 1973, legislature clearly to § wrote the subsection state ch 14. habitability dwelling Paragraph obliged unit. the landlord was to maintain the (h). (f) present language, specifically paragraph was The draft of the was added in its only provides Act that a shall: Uniform Residential Landlord and Tenant landlord “(2) necessary put repairs keep all and do whatever is and make
premises in a fit and habitable condition.
“(3)
keep
in a
areas
clean and safe condition.”
all common
91.770,
legislature
require-
original
of ORS
has added
Since
enactment
2;
doors,
1979,
643,
provide
ch
§
all
Laws
ments that the landlord
locks for
outside
Or
753,
1981,
1;
entryway,
might
§
Or
ch
and
for all windows that
be an
Laws
latches
1987,
611,
cities,
large
garbage
ch
11.
§
service in
Or Laws
removal
5
being
complaint
claims as
“common
Plaintiff’s second amended
referred
these
plaintiff
Appeals,
negligence.
characterized these
law”
In her brief before the Court
court,
(Second)
petition
of Torts. In her
claims
reference to
Restatement
analysis
plaintiff rejects
Fazzolari v.
and relies on an
derived from
the Restatement
(1987).
1J,
1,
change apparently
This
Dist. No.
6 (Second) Torts, provides: 356 section Restatement
“Except lessor liable to his 357-362 a of land as stated [sections] decisions our recent argues now
Plaintiff 1J, 1, 734 P2d 303 Or No. School Dist. Portland v. Fazzolari Stillwell, 23, Or (1987); Kimbler v. P2d 1339 Co., 303 Or Curry (1987); Donaca the common-law abandon this court (1987), require that the Restatement. liability recognized landlord notion trilogy7 the Fazzolari to as now referred The cases tort of common-law aspect clarify one attempt were a restruc- they were treated as not be liability; they should major prob- one They dealt with law. negligence all turing of duty” to of “no the defense reliance on the common lem: particu- facts in a of the proper examination short-circuit that, in the made it clear opinions hope lar case. We risk duties, of foreseeable questions specific legal absence ordinarily depend on risk light action reasonable circum- particular in the defendant’s actions examining a *10 stances. case is not whether present in the question set principles abandon the that this court requires
Fazzolari (Second) That case of Torts 356. the Restatement § forth in apply negligence of common-law principles not make does is whether the question not. The they otherwise would where are in conflict with negligence of modern law principles by any dangerous physical condi- harm caused to others on the land for lessee or tion, artificial, possession.” existed when the lessee took natural or which whether exceptions argued in either section fell within the contained Plaintiff that her case 360: part possessor control thereof and retains his own “A of land who leases a part appurtenant leased any part use as to the which the lessee is entitled to other lawfully upon him, liability subject the land with to his lessee and others to is to by dangerous physical harm caused the lessee or a sublessee for the consent of control, by if upon part the lessor the land retained the lessor’s of condition condition and the unrea- have discovered the exercise of reasonable care could the condition safe.” could made risk involved therein and have sonable 362: or section who, repairs by purporting while it is make on the land to “A lessor of land lessee, negligent makes such in which he possession manner of his know, has, made the land more repairs nor should the lessee neither knows as liability safety, subject appearance deceptive to given is dangerous it a for use or upon the land the lessee or to others physical condition to harm caused for of the lessee or sublessee.” with the consent Negligence See, Casenote, Proper Actions: The e.g., Role in Judicial ” (1988). “Negligence, Trilogy L Rev 443 24 Willamette
Fazzolari Redefines liability traditional rules of landowner set forth in the and, so, properly applied Restatement which rules are more present question to the situation? To answer this we must development examine the ideas set forth the Restate- ment, contemporary and their relevance to the world.8
Landowners and visitors. beginning develop-
Before this examination of the area, ment of the in this it is important recognize law only case concerns a limited present part of the common liability. law of landowner The issue before this court con- potential liability cerns a landowner’s to a visitor under the common law. We are not concerned with the question of lia- bility Despite important of a landlord to the tenant. dis- might liability tinctions that exist between a landlord’s tenants, liability visitors and response traditional of the liability common law has been to consider a landowner’s (Sec- parties being Thus, both the same. the Restatement ond) Torts, section speaks liability landlord’s “his being lessee or to others on the land” as the same. tendency of the traditional common law to view a landowner’s potential liability to tenants and visitors as being nearly indistinguishable liability landlord-tenant represents one of the of this traditional shortcomings view. It any also means that much of development discussion of the the common law in this area will not be able to make distinc- tions between landlord-tenant and landowner-visitor situa- Despite considering types liability tions. the two as similar purposes portions discussion, for of some we note now opinion that this proper limited to discussion of the basis potential liability respect landowners with to visitors property who are on the at the invitation of the tenant. *11 history The the Restatement view. of The Restatement in provision expressed section 356 that a lessor of land is not to “others on the land” for liable physical by any dangerous harm caused condition which 8 upon nonstatutory previously When called to re-examine a rule or doctrine court, adopted by principle by this we have adhered to the Mr. Justice stated Holmes Eisner, 345, 349, 506, (1921): in New York Trust Co. v. 41 L 256 US S Ct 65 Ed 963 “Upon point page history Harper, logic.” this a See v. a of is worth volume of Heino 347, (1988). 306 Or
641 aon con- is based possession the lessee took existed when court, in Jensen veyance of which concept property 360, (1968), 604 found not Meyers, 363, 441 P2d 250 Or the satisfactory immunizing for lessor explanation itself a history the of this Restatement liability. We now trace view. gone through nature of has property a real lease This changes. development has been well traced
several many quarter century.9 last After the law review articles in the Conquest, by persons held as “tenants” of Norman land was England.10 held title to all land Conqueror, William the who mainly as a tenancy years develop, As for means began the 11 usury, the the prohibition against to circumvent church’s contractual, this kind law of tenant’s interest regarded not actions in rights the could enforce his in real the tenant arose, agrarian As king’s husbandry courts. leases tenants they lands had interests in gained recognition court’s 1499, land real In that could enforced actions. ten possessory against ant’s action right ejectment, maintain recognized. development was “The strangers, action ejectment marked end of the era in which the lease was primarily Love, Liability considered as a contract.” Landlord’s Lessee, Negligence, or Strict Premises: Caveat for Defective 19, (hereinafter Liability?, 1975 Wis L Rev 25-26 cited as Love). century,
In the sixteenth leases were almost land exclusively physical without structures. tenant land to till the fruits of his paid leased the it. He rents from primarily labor on the land. Because the tenant was interested itself, any buildings the land condition of was con- by the courts The lease came important. sidered to be to be Landlords, See, Duty Liability Browder, e.g., Taming Tort —The Liability (hereinafter Love, (1982) Browder); Landlord’s Mich L Rev 99 for Defective Negligence, Liability?, Lessee, (here or Strict L Rev 19 Premises: Caveat 1975 Wis Love); Critical Phillips, The Law Landlord-Tenant: A Evaluation inafter & Quinn Future, (1969). with Guidelines Past 38 Fordham L Rev 225 followers, Conqueror who in turn “leased” the land his chief William thus created as the land to The nature of tenancies was “subinfeudated” others. Love, supra note described in at 23-24. years to a in need of make a lease for a term of tenant “A landowner funds would consideration, lump payable The tenant sum in advance. would return for a rent, during recoup plus healthy profit, from the land his the use of then Love, supra note 24.
term.” *12 642 Love, conveyance realty. supra, as a of an interest in
regarded perhaps logical for the times in which it was at 26. While long past notion has held on the time when its developed, this reality to the of most landlord-ten- logic any had connection relationships. ant Revolution, persons the Industrial
With the onset of properties began rent residential and commercial desiring to the improvements to be interested in the use of structural began land rather than the land itself. The lease instrument to conveyance.12 a contract more than a resemble recognized change scholars in the character Legal a con- began question of a lease and whether lease was Love, their veyance According or a contract. to Professor courts, Love, supra, answer was that it was both. 27. Most however, continued to be concerned with the scarce com- lease as a con- modity regard primarily of land and to veyance realty. The result was that the landlord-tenant to real relationship governed by analogies continued to be property law.13 pur- time decreed that a property
Real law and, “as is” there- property property chaser of real took the fore, emptor” a lessee. doctrine of “caveat or so did This “caveat lessee” is described in the words of Coke: that, parties frequently express example, 12 “The would include covenants for transfer, right
placed limitations on the use of the land and tenant’s rent, governed paying regulated the time and manner of the erection and removal taxes, improvements, apportioned liability provided for insurance and fixed or renew, purchase responsibil security deposits options for ity and allocated (footnote Love, 10, repairing premises.” supra defects in the note at 26-27 omitted). 13 Revolution, may Early development in there have been a Industrial recognized changed few courts which nature of leases. presented, put for the lessors were hard “When the issue was first counsel tendency authority position There
find repudiate for their caveat was lessee]. [of concept. may stirrings early Victorian conscience It be that the Lessee, Grimes, applying 2 Caveat rebelled at the doctrine to human habitation.” 189,195 (1968). Valparaiso L Rev obligations reports English relieving their four decisions tenants of Professor Grimes unhabitable, clear, premises ranging from 1829 to 1843. It is the rented became when however, repudiated reports came to be later decisions what Professor Grimes heresy.” regarded as a “vile Thus, English applied residential leases law “caveat lessee” to it is not certain that 5, 1843, July England, Oregon adopted see Act of when the common law of Code, (1922); Harris, History Oregon reprinted L Rev Act of Or II, (1982). 27,1844, 98,100 1§ Or Laws 1843-49 at art June every warrant the
“Note that the civil law man is bound to express conveyeth, albeit there be no thing that he selleth or * * * law; warranty but either deed or the common law not, Love, emptor.” supra, him for caveat at 27-28 bindeth Coke, 102(a), 7, commentary A (quoting (1853 ed)). on Littleton c 145§ land, the lessee took the grantee Just as did present leasing, defects were at the time of with whatever *13 responsibility anyone the lessor had no to to maintain the them, repair duty and for want of this the lessor immunity against liability anyone had an to on the land who Love, injured by premises. was defective condition of the at 48. The common law came to and enforce this supra, accept rule, despite occasionally harsh that it at odds recognizing was principles with other of the law. is no law apart, there “[F]raud Jones, against letting a tumbledown house.” v. 143 Robbins 768, (1863) Erie). Eng Rep (Opinion 776 of Chief Justice immunity
It is this rule of that is restated in section 356 of the Restatement: tenant, property
“When land is leased to a the law of regards equivalent the lease as to a sale of the land for the term acquires land, of the lease. The lessee an estate in the and being occupier, subject becomes for the time the owner and to possession, all of the liabilities of one in both to who those Therefore, enter the land and to those outside of it. as the 352, general case of the vendor under it is the rule that the § lessee, land, lessor is not liable to the or to others on the for injuries occurring possession, after the lessee has taken even though injuries dangerous such result from a condition exist- ing at the time of the Comment a 356. transfer.” to section exceptions to section found in sections 357-62 are generally regarded expressions as a need this rule temper to surrounding agrarian because realities the shift from tenancies, the more modern commercial nature both recognized residential. Courts had the conflict between long depart from the reality the law and but were reluctant 1918, Supreme traditional of tenancies. In the interpretation law, States, applying Court Massachusetts United conveyance illogic noted the of the idea that a lease was rather than a contract: vacuo; it logic matter of is a
“But the law as to leases is not a history forgotten Gardiner matter of that has not Lord Coke.” Co., 603, 214, L v. Butler & S 62 Ed 505 US 38 Ct (1918). Restatement’s edifice.
Rifts that was time began suggesting to be heard it Voices apply reality to the of landlord-tenant landowner- logic Bowles 202 F2d relationships. Mahoney, In guest any statutory or (DC 1952), Cir held that absent majority duty, responsible injury was not contract lessor resulting developed invitee from a defect which the tenant’s dissent, his stated during Judge the lease term. In Bazelon has “an anachronism which majority’s holding was prag- through through stare decisis alone rather than lived ” felt time.’ Id. at adjustment matic ‘the necessities of [our] he would discard Accordingly, Judge 325. Bazelon said that lia- majority’s presumptive rule and “cast burden of Id. should bility upon arguing the landlord.” In court it, rule rather than followed changed have common-law Judge Bazelon stated: sphere dividing is no fixed line of action
“There effecting legislature between the and the courts for needed change law rule. The line should not marked common conceptions judge-made ‘metaphysical of the nature of with *14 tenet, law, by implacable nor some such that of fetish of as powers, governmental of but considerations of division convenience, deepest utility, jus- of and of of sentiments ‘Change Legis- of left to the tice.’ this character should be the mores of misinterpreted judges woefully lature.’ ‘If have if the mores of day longer day, are no of their or their those ours, tie, submission, they ought helpless hands not to ” omitted). (footnotes Id. their of successors.’ 328 1970s, courts, recog- Finally, early having in the some rule stated in sec- nized the antecedents of common-law valid, no longer 356 and that its d’etre was finding tion raison immunity persons injured abolished the landlord to third leading premises. of of the The dangerous reason condition Ross, 388, A2d 528 be v. 113 NH Sargent case seems to her fell to (1973). There, guest who was a of a tenant child building. in a The child’s steep death on stairs residential damages. The mother contended brought mother action negligent on two alternative theories. that the landowner was of recognized exceptions as to the rule They appear to be those of land retained namely, (parts section 360 section control) lessor). (negligent repairs by lessor’s and section 362 The court believed that it could strain or broaden the limits of liability, exception impose forthrightly either but chose to vitiate immunity: the rule of today discard the rule of lessee’ ‘caveat and the doctrine “[W]e nonliability gave
of landlord
tort to which it
birth.
thusWe
bring up
warranty
to date the other half
addition to
of
[in
Henceforth,
habitability] of landlord-tenant
law.
landlords as
persons
subject
other
must exercise reasonable care not to
others to an unreasonable risk of harm.
A landlord
[Citations.]
person
must act as a reasonable
under all of the circumstances
others,
including
injury
probable
the likelihood of
injuries,
reducing
seriousness of such
and the burden of
avoiding
principle
the risk.
thinkWe
this basic
of
[Citations.]
responsibility for
expresses
landlords as for others ‘best
principles
justice
upon
and reasonableness
which
law of
our
control,
questions
torts is founded.’
hidden
[Citation.]
use,
public
formerly
defects and common or
which
had
landlord,
only
established as a
will now be relevant
inasmuch
they
foreseeability
bear on the basic tort issues such as the
particular
and unreasonableness of the
risk of harm.” 308 A2d
at 534.
America,
In
Pagelsdorf
Ins. Co.
91 Wis 2d
Safeco
(1979),
guest injured against was when he leaned a porch railing broke, which him fall allowing some distance to a lower jury level. A found that the landlord had prior knowledge no rail, rotten condition of the and judgment was entered for the defendant landlord. Supreme recognized Court sec- tion as stating general immunity rule of noted a but trend: nonliability persists despite away
“The rule of a decided trend application general expansion rule and toward Property, (Second) (Tentative exceptions. its Restatement Torts, 4), (1976); (Second) Draft No. Ch. 16 Restatement (1965).” secs. 355-56 at 59. NW2d then noted exceptions gen- court that none of the *15 and, eral rule fit the case the general the court were to follow rule, plaintiff general would lose. The court abandoned the rule: believe, however, public policy
“We that the better lies adop- nonliability general rule of abandonment duty exercise under a a landlord is of a rule that tion premises. ordinary care in the maintenance “* * * defects, control, and common Questions hidden only bearing general determin- as would be relevant use foreseeability unreason- including negligence, ation of at 59. 284 NW2d of the risk of harm.” ableness Sargent v. the lead of elected to follow specifically court Ross, supra. Garwacki, 402 NE2d 380 Mass
Young v. injured Pagelsdorf. There (1980), factually similar to was tenant, judgment from a appealed guest a plaintiff, landlord. for the defendant notwithstanding the verdict motion, brought Massachusetts, own on its Court of Supreme history of Noting the intermediate court. up from the the case immunity, the court stated: rule of that led to the the law law that bars a away with the ancient “Today, we do compensation from a landlord recovering guest from tenant’s rented to by negligent maintenance of areas injuries caused for status, this rule has rules based on Like the other the tenant. overriding raising the people from prevented a whole class of reasonably cir- under the acted whether the landlord issue: rule has been practical result of this archaic cumstances. one premises. In cases like the repairs rented discourage less incen- us, knowledge of a defect has with before a landlord tenant, often has a short-term repair who tive to it. And funds, experience dealing with such lease, and limited limited expensive defects, pay work on inclined to will not be Thus, may go unre- leaving. the defect place he will soon plaintiff finds herself with unsuspecting paired until prevented.” 402 NE2d at have that care could lawsuit omitted). (footnote Ross, and the supra, Sargent noted specifically The court therein. discussed responsibility principle” “basic acknowledged this court Twenty years ago conveyed prop- property leased reliance on Restatement’s apparent with quoted, court unsatisfactory. The erty was (1956): 1509, 27.16 James, Torts & Harper § approval, to exonerate negligence law of the general is no part “[I]t his attributable the condition because simply defendant it causes before his control beyond passed has negligence still defendant at the time (if foreseeable injury was injury *16 control).” Meyers, Jensen v. had supra, Or at 363. Justice O’Connell, court, for the wrote: writing immunity may upon grounds of the lessor be rested
“[T]he
other
property
than the mere transfer of a
interest
to the
* * *
exceptions engrafted upon
lessee.
immu-
lessor’s
nity
liability appear
principally upon
to be based
ground
likely
that the hazard created
the lessor is not
to be
remedied or immunized
the lessee and thus the lessor is
upon
accepted principle
made liable
the well
that one is liable
** *”
Id. at 363.
reasonably
foreseeable harms.
The court noted the unlikelihood
of a lessee
remedying
* * *
condition,
hazardous
“particularly
under a short
term
* * *
* * *
lease
or where
agrees
repair
lessor
or where there
is an undisclosed dangerous condition known
lessor,
to the
or
where lessor retains
a part
of the leasehold.” Id. control of
363-64 n 4.14 The court
then articulated
the following test
(which apparently
from Webel v. Yale University,
adopted
was
515, 524,
125 Conn
(1939)):
7 A2d
time and defects are more than the tenancy agreement. or lease COMMON-LAW
APPLYING NEGLIGENCE TO THE PRESENT CASE (1) plaintiff alleged that the hole pleadings, In her (2) present signed, when the lease was that the lawn was or have known the hole presented landlord knew should persons risk of harm to foreseeable such unreasonable (3) plaintiff injured was as a result plaintiff, and direct failing to fill the hole otherwise “negligence” defendant’s plaintiff. the risk to protect against Plaintiff, poten- legitimately premises, has tial of action for common-law which is based negligence, cause repair alleged dangerous condition duty on landlord’s *17 plaintiff must has premises. on the We now determine a alleged point, facts to state such claim. It is this sufficient point argued by plaintiff, rather the earlier that than 1J, decisions in Fazzolari v. Portland School Dist. No. court’s Stillwell, Co., Curry supra; supra; supra, Donaca v. Kimbler important. cases and related become mentioned, purpose of these cases was already As of clarify particular aspect negligence. one common-law preliminary role in abrogate These cases did not the court’s matters: ordinarily involving is in cases
“The role of
court what it
particular
the evaluation of
situations under broad and
upon
imprecise
to determine
the facts
standards:
whether
presented
alleged
no
evidence
reasonable factfinder
liability
of
could decide one or more elements
other
one or
Fazzolari,
party.”
Two characteristics of the landlord-tenant relationship must be recognized this and similar cases: the influence of the landlord’s limited control over premises, and the influence of the RLTA.
The landlord’s degree of control has already been mentioned. The theory of limiting liability landlord’s expressed (Second) in the Restatement of Torts was based in part on this aspect of the landlord-tenant relationship. While rely landlord cannot exclusively on the principles of the escape Restatement liability, degree the landlord’s element, control is an of which landlords and the courts should not sight.15 present statute, lose 91.785(1), ORS prohibits a tenant from unreasonably restricting landlord from making reasonable repairs. provides: It
“A unreasonably tenant shall not withhold consent to the dwelling landlord to enter into the inspect unit order to *18 15 example, Meyers, 360, 364-65, 441 (1968), For in Jensen v. 250 Or P2d 604 that, specifically circumstances, court noted under some it is reasonable for a landlord any to assume that a tenant will discover and make safe obvious hazards on the property: present any recognized exceptions “The case does not fall within of the [from ** * non-liability. to lessor’s Restatement] by “The mere fact hazard could have been eliminated [the landlord] * * * plaintiffs injuries. opinion does not make him liable for We are that the ground
lessor should be not liable under these circumstances on the that he should expect necessary steps be entitled to that the lessee will take the to eliminate the guests danger.” hazard or to warn his particular Under most circumstances what is reasonable behavior in a set of circumstances, applied general being particular like other uncertain standards case, question by application will be a to be determined the finder of fact. The ordinary negligence relationship prevent standards to the landlord-tenant does not landlord, visitor, pleading arguing special or a tenant or a or the facts of the relationship created a residential lease. 650 decorations, necessary agreed repairs,
premises, or make improvements, supply necessary agreed or serv- alterations or ices, pur- dwelling prospective or unit to or actual exhibit tenants, chasers, mortgagees, workers or contractors.” course, control, con- many Of this issue of like others is affected cerning relationship, the landlord-tenant right the RLTA. The landlord’s of access existence of 91.785(3).16 see RLTA, forth ORS In property is set in the ways, an these and other the RLTA will have influence on persons actions landlords and third on the injured between premises. rented or leased
Statutory
may
important
ways.
law
in several
This
legis
has
are
recognized
court
that there
instances where the
See,
v.
effect,
e.g.,
Chartrand Coos
has,
a tort.
lature
created
Tavern,
(1985).
Bay
689,
statutory
P2d
298 Or
696
513
Such
any parallel
exist
claim and
independent
torts
common-law
pleaded independently,
accompany
can be
with or without an
Co.,
Sears,
claim. Holien v.
Roebuck and
298
ing common-law
Weaver,
(1984); Nearing
supra,
v.
76,
Or
Even tort is defendant, meet tiff, may or a be able to use a statute to or his of the elements of or her claim defense support one all ordinary action. Where a statute establishes negligence stat common-law the violation of the negligence, elements of This negligence per can be as a fact to establish se. is pled ute recovery provides true or not the statute whether See, Tavern, e.g., Bay supra, v. Chartrand Coos 298 damages. (pleading negligence Or at 695 common-law negligence se for of a statute is also sufficient to state a per violation Williams, v. Barnum statutory theory); 264 claim under a tort (1972) (violation 71, 122 a motor statute Or 504 P2d vehicle se reasonable care would be a defense negligence per unless circumstances). under can standard proper
A statute be used establish care, met or to show that the defendant failed meet (1986); Rijken, this standard. Cain 300 Or (1978). Lines, P2d Brown v. Transcon Or statutory of care cannot be shown Even standard appendix 2. See *19 apply to the defendant, might statute indicate standards of care that the defendant should have met. Shahtout v. Emco Co., Garbage 598, 298 Or (1985); Brown v. Lines, Transcon supra. A statute might also be used to show that a defendant should have considered the particu- risk to a lar group of people which plaintiff includes the in the case then before the court. Sellars,
Humbert v. supra, shows that a landlord must consider a tenant’s visitors among potential the class of plain tiffs endangered by any risk created the landlord. In the present plaintiff case the therefore, can not, but need use the RLTA to support supply one of the necessary elements of However, her claim. that, in doing any plaintiff who relies on a statutory tort must take the bitter with the sweet. The plain tiff who relies exclusively on a statutory tort is limited statute, including any limits damages. Erwin, See Brewer v. supra, Or at 443.
These and other issues will be before the trial court on remand. We reverse the decision of the Court Appeals and remand this case to the trial court for further proceedings consistent with opinion.
APPENDIX 91.770(1) provides: ORS *20 during tenancy maintain all times “A landlord shall at purposes in For of this dwelling unit a habitable condition. if it section, dwelling unhabitable a unit shall be considered substantially lacks: protection “(a) waterproofing weather Effective and doors; walls, including windows and
roof and exterior applicable “(b) Plumbing conform to facilities which installation, in in the time of and maintained law effect at order; working good law,
“(c) applicable supply approved A under water which is: “(A) and is the control of the tenant or landlord Under water;
capable producing running hot and cold fixtures;
“(B) appropriate and Furnished to approved “(C) sewage disposal system Connected to good working to in order applicable law and maintained under landlord; by system that the can controlled the extent “(d) Adequate heating facilities conform which in time and maintained applicable law at the of installation order; working good
“(e) wiring equip- electrical lighting with and Electrical applicable law at the time of installa- ment conform to which order; good working in maintained tion and “(f) Building, appurtenances the time of grounds and every agreement part in the rental commencement debris, clean, sanitary, free all accumulations of and vermin, filth, rubbish, all garbage, rodents and areas and clean, sanitary kept every part in under of the landlord control debris, filth, rubbish, gar- from accumulations and free all vermin; bage, rodents and receptacles appropriate
“(g)(A) adequate An number of good repair at rubbish clean condition and garbage for and agree- or rental commencement the lease the time of the appropri- ment, provide shall and maintain and the landlord arrange for their receptacles thereafter and ate serviceable parties agreement provide and written removal unless receptacles thereafter and appropriate serviceable maintain agree- parties written unless the arrange for their removal otherwise; and provide ment
“ (B) (A) provisions In of subparagraph addition city 250,000 paragraph, population with a over people, garbage removal service at least two times a month week; gallons containers that allow for 30 accumulation “(h) Floors, walls, ceilings, stairways railings main- good repair; tained
“(i) Ventilating, conditioning air and other facilities appliances, elevators, including good repair maintained supplied required supplied by landlord; or to be fire; “(j) Safety from the hazards of “(k) doors, and, Working dwelling locks for all entrance contrary law, applicable windows, by unless latches for all may portion which access be had to that which agreement occupy tenant is entitled under the rental keys require the exclusion of others and for such which locks keys.”
2. *21 91.785(3) provides:
ORS “(a) A landlord shall right not abuse the or of access use it Except to harass the tenant. in emergency, agree- case of contrary so, ment to the or impracticable it is unless to do the give landlord shall the 24 tenant least hours’ notice the may intent of the to only landlord enter and enter at reason- able times. “(b) repairs If requested by or maintenance are the ten- ant, entry or dwelling necessary the tenant’s is unit to
perform repairs required portions or maintenance for other except premises, the in emergency agree- the case of an or an so, contrary ment to the or impracticable unless it is to do persons acting may landlord or behalf of landlord enter upon completing or in the demand tenant’s absence until maintenance, repairs provided: or
“(A) The given landlord has at least 24 hours’ in notice writing, specifying purposes entry persons and the perform repairs maintenance, will stating who and persons by upon those are to authorized the landlord enter absence; in the demand or tenant’s “(B) entry purposes is for stated the notice persons specified
and persons acting in the notice or supervision; under their and
“(C) entry times.” occurs at reasonable
GILLETTE, J., concurring part specially part. concurring opinion save its of the court’s for discus- join
I all (306 650-651) statutory “importance” of law. Or sion of the disposi- dicta, unnecessary is the decision or That material case. tion me, I am sure that at least importantly,
More correctly upon cases relied discussion were some of the my no for the The reasons for doubts make difference decided. enough It is for the moment to disposition present case. opinion in yet persuaded I am not this court’s note that Co., (1985), Garbage Emco 298 Or Shahtout v. P2d Rijken, I Cain v. Or believe that disagree- (1986), wrongly. My decided tentative probably was my the former cause me ment with the latter and doubts about fit disappointed majority sees particularly to be enough It difficult to make head- speak of them here. will be holdings a case in which their way respect with to them in task is made that much harder actually implicated. are recited, litany, before it ever when the cases are in sort speak their necessary pertinence.