Sikora v. WenzelSikora v. Wenzel
Lead Opinion
With this dеcision 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
In Shroades v. Rental Homes, Inc., supra, this court set forth the broad principle that landlоrds are subject to tort liability for violations of
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 plaintiffs burden of proof and to which the concept of notice may or may not be relevant.
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 applicablе. 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 instrumen
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),
More frequently, then, this sort of statutory violation either will be considered as evidence of negligence or will support a finding of negligence per se. As this court has consistently held, the distinction between the two depеnds upon the degree of specificity with which the particular duty is stated in the statute. See, e.g., Eisenhuth v. Moneyhon (1954),
Where a statute contains a general, abstract description of a duty, a plaintiff prоving 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 rеlevant consideration. Id.; see, also, Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998),
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),
Negligence per se, however, is not equivalent to “a finding of liability per se because the plaintiff will also have to prove proximate cause and damages.” Chambers, supra,
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),
Lack of notice is among the legаl 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 а landlord). This concept is also specifically recognized in 2 Restatement of the Law 2d, Property, Landlord & Tenant (1977) 261-262, Section 18.3, Comment c, as applicable to landlord liability for failing to remedy a dangerous condition.
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
We reject Sikora’s argument that the statute imposes strict liability.
Nor do we agree with Wenzel that the language of that statute is sо 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),
Having determined that the statute’s violation constitutes negligence per se, we turn now to the question of whether Wenzel’s lаck of notice of the defect in the deck excuses the violation.- Both parties agree that Wenzel neither knew nor had any way of knowing of the defective condition. The City issuеd the necessary approval documents despite having failed to reinspect the situation. Because Wenzel was not involved at that point, however, he had no reasоn to question the validity of the City’s certification. Thus, no factual circumstances existed that would have prompted or required Wenzel to investigate the process that occurred between the City and the developer prior to his involvement. Given that Wenzel neither knew nor should have known of the condition giving rise to the violation of
We hold, therefore, that a landlord’s violation of the duties imposed by
For the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.
Concurrence Opinion
concurring. 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 agreed that the landlord had no knowledge of the latent defect, and it is basic hornbook law that in the absence of actual or constructive knowledge, a landlord is not liable.