SIKORA, APPELLEE, v. WENZEL, APPELLANT, ET AL.
Nos. 99-1301 and 99-1323
SUPREME COURT OF OHIO
May 24, 2000
88 Ohio St.3d 493 | 2000-Ohio-406
Submitted March 7, 2000. CERTIFIED by and APPEAL from Court of Appeals for Greene County, No. 98-CA-130.
[Cite as Sikora v. Wenzel, 2000-Ohio-406.]
Landlords and tenants—Landlord’s violation of duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence per se—Landlord excused from liability under either section, when.
A landlord’s violation of the duties imposed by
{¶ 1} In September 1996, a deck attached to a condominium owned by Tom Wenzel collapsed during a party held by one of Wenzel’s tenants. Aaron Sikora, one of the guests at the party, was injured as a result of the collapse and brought the instant negligence action. After the incident, an engineering firm hired by the city of Fairborn (the “City”) concluded that the deck’s collapse resulted from improper construction and design in violation of the Ohio Basic Building Code (the “OBBC”).
{¶ 2} A decade earlier, before the deck was built, Zink Road Manor Investment (“Zink”) owned and was developing the property where the condominium was located as a series of condominiums. After Zink submitted plans
{¶ 3} After the City issued the certificate, Wenzel purchased the property at issue from Zink. It is undisputed that Wenzel had no knowledge, either actual or constructive, as to any defect in the deck that was attached to the condominium. The parties also agree that Wenzel was in no way involved in the discussions concerning the deck between the City, the general contractor, or the subcontractors, and that he lacked any privity of contract with these entities.
{¶ 4} Following the deck’s collapse, Sikora sued Wenzel, the contractor, and the design company, alleging that each was negligent and therefore jointly and severally liable. Sikora based his claim against Wenzel in part upon a violation of
{¶ 5} Sikora appealed the trial court’s decision to the Second District Court of Appeals, which reversed and remanded the decision below. In so doing, the court of appeals rejected the application of this court’s decision in Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774. In Shroades, this court paired the concepts of negligence per se with the requirement of notice of the defective condition for landlord liability under
{¶ 6} Case Nos. 99-1301 and 99-1323 have been consolidated and are before this court upon our determination that a conflict exists, and upon the allowance of a discretionary appeal.
Dyer, Garofalo, Mann & Schultz and Douglas A. Hess, for appellee.
Young & Alexander Co., L.P.A., Mark R. Chilson, Jill S. Patterson and Allison D. Michael, for appellant.
Buckingham, Doolittle & Burroughs, L.L.P., and Jacqueline Marks Dossi, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
Havens Willis L.L.C., William L. Willis, Jr., and Michael J. Sikora III, urging reversal for amicus curiae Ohio Apartment Association.
COOK, J.
{¶ 7} With this decision we confirm that the doctrine of negligence per se countenances lack of notice of a defective condition as a legal excuse. We reverse the appellate court’s determination that notice is irrelevant and strict liability applies, and instead hold that a violation of
{¶ 8} In Shroades v. Rental Homes, Inc., supra, this court set forth the broad principle that landlords are subject to tort liability for violations of
{¶ 9} Negligence per se and strict liability, however, are not synonymous. Courts view the evidentiary value of the violation of statutes imposed for public safety in three ways: as creating strict liability, as giving rise to negligence per se, or as simply evidence of negligence. See, generally, Browder, The Taming of a Duty—The Tort Liability of Landlords (1982), 81 Mich.L.Rev. 99. These are three separate principles with unique effects upon a plaintiff’s burden of proof and to which the concept of notice may or may not be relevant.
{¶ 10} Strict liability is also termed “liability without fault.” Black’s Law Dictionary (7 Ed.1999) 926. Thus, where a statute is interpreted as imposing strict liability, the defendant will be deemed liable per se—that is, no defenses or excuses, including lack of notice, are applicable. See 57A American Jurisprudence 2d (1989) 76-77, Negligence, Section 19. Areas where the law typically imposes strict liability include liability for injuries inflicted from a dangerous instrumentality, liability for violations of certain statutes, and liability for injuries caused by a manufacturer, distributor, or vendor of certain products. Id.
{¶ 11} Courts generally agree that violation of a statute will not preclude defenses and excuses—i.e., strict liability—unless the statute clearly contemplates such a result. See, e.g., Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 617 N.E.2d 1075; see, also, Gore v. People’s Savings Bank (1995), 235 Conn. 360, 377-378, 665 A.2d 1341, 1349. Notably, most courts refuse to impose strict liability in the context of landlord liability for defective conditions, recognizing the need for some kind of notice element prior to the imposition of liability. See Browder, supra, at 136.
{¶ 13} Where a statute contains a general, abstract description of a duty, a plaintiff proving that a defendant violated the statute must nevertheless prove each of the elements of negligence in order to prevail. See id. Thus, proof will be necessary that the defendant failed to act as a reasonably prudent person under like circumstances, to which the defendant’s lack of notice of a defective condition may be a relevant consideration. Id.; see, also, Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 271, 274; Gore, supra, 235 Conn. at 373, 665 A.2d at 1347.
{¶ 14} But where a statute sets forth “ ‘a positive and definite standard of care * * * whereby a jury may determine whether there has been a violation thereof by finding a single issue of fact,’ ” a violation of that statute constitutes negligence per se. Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198, 201, quoting Eisenhuth v. Moneyhon, supra, 161 Ohio St. at 374-375, 53 O.O. at 278, 119 N.E.2d at 444. In situations where a statutory violation constitutes negligence per se, the plaintiff will be considered to have “conclusively established that the defendant breached the duty that he or she owed to the plaintiff.” Chambers, id. In such instances, the statute “serves as a legislative declaration of the standard of care of a reasonably prudent person applicable in negligence actions.” Thus the “reasonable person standard is supplanted by a standard of care established by the legislature.” 57A American Jurisprudence 2d, supra, at 672, Negligence, Section 748.
{¶ 15} Negligence per se, however, is not equivalent to “a finding of
{¶ 16} Furthermore, negligence per se and strict liability differ in that a negligence per se statutory violation may be “excused.” As set forth in the Restatement of Torts 2d, supra, at 37, Section 288B(1): “The unexcused violation of a legislative enactment * * * which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.” (Emphasis added.) But “[a]n excused violation of a legislative enactment * * * is not negligence.” (Emphasis added.) Restatement of Torts 2d, supra, at 32, Section 288A(1). See, also, Reynolds v. Ohio Div. of Parole & Community Serv. (1984), 14 Ohio St.3d 68, 71, 14 OBR 506, 471 N.E.2d 776, 779, fn. 5, quoting Prosser, Law of Torts (4 Ed.1971) 200-201, Section 36; Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 37, 30 OBR 78, 79, 506 N.E.2d 212, 215 (applying the concept of a legal excuse in the context of motor vehicle operation); Zehe v. Falkner (1971), 26 Ohio St.2d 258, 261, 55 O.O.2d 489, 491, 271 N.E.2d 276, 278.
{¶ 17} Lack of notice is among the legal excuses recognized by other jurisdictions and set forth in the Restatement of Torts 2d. This excuse applies where “the actor neither knows nor should know of any occasion or necessity for action in compliance with the legislation or regulation.” Restatement of Torts 2d, supra, at 35, Section 288A(2)(b), Comment f. See, also, Gore v. People’s Savings Bank, supra (applying this excuse in the context of the violation of a statutory obligation upon a landlord). This concept is also specifically recognized in 2 Restatement of the Law 2d, Property, Landlord & Tenant (1977) 261-262, Section 18.3, Comment
{¶ 18} It follows, then, that a determination of liability and the relevance of notice under a statute imposed for safety depends first upon which of the above categories the statute occupies. Wenzel urges us to construe the violation of
{¶ 19} We reject Sikora’s argument that the statute imposes strict liability.
{¶ 20} Nor do we agree with Wenzel that the language of that statute is so general or abstract as to constitute merely evidence of negligence. Rather, we believe the statutory requirement is stated with sufficient specificity to impose negligence per se. It is “fixed and absolute, the same under all circumstances and is imposed upon” all landlords. Ornella v. Robertson (1968), 14 Ohio St.2d 144, 150, 43 O.O.2d 246, 249, 237 N.E.2d 140, 143. Accordingly, we conclude that the statute requires landlords to conform to a particular standard of care, the violation of which constitutes negligence per se.
{¶ 21} Having determined that the statute’s violation constitutes negligence per se, we turn now to the question of whether Wenzel’s lack of notice of the defect in the deck excuses the violation. Both parties agree that Wenzel neither knew nor
{¶ 22} We hold, therefore, that a landlord’s violation of the duties imposed by
{¶ 23} For the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
RESNICK, J., concurs separately.
DOUGLAS, J., not participating.
ALICE ROBIE RESNICK, J., concurring.
{¶ 24} I write separately simply to make it crystal clear that the law would never require a landlord to be an insurer of the safety of others. In this case, it is