Thrash v. Hill

Per Curiam. Pursuant to Civ. R. 56(C), summary judgment may be rendered where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Further, the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. Summary judgment may not be rendered unless it appears that reasonable minds- can come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In this cause, the courts below held that appellant was not entitled to the relief demanded because, as a landlord out of possession and control of the premises, appellee had no common law duty to make repairs of the premises, for the breach of which he could be held responsible in tort. Burdick v. Cheadle (1875), 26 Ohio St. 393; Shindelbeck v. Moon (1877), 32 Ohio St. 264; Stackhouse v. Close (1911), 83 Ohio St. 339; Berkowitz v. Winston (1934), 128 Ohio St. 611; Ripple v. Mahoning Natl. Bank (1944), 143 Ohio St. 614; Cooper v. Roose (1949), 151 Ohio St. 316; Brown v. Cleveland Baseball Co. (1952), 158 Ohio St. 1; Pitts v. Cincinnati Metro. Housing Auth. (1953), 160 Ohio St. 129. The lower courts further held, in adopting the Landlords and Tenants Act of 1974, that the General Assembly neither intended to, nor did, create a right in derogation of the common law in a tenant to recover in tort for personal injuries sustained as a result of a landlord’s failure to keep the leased premises in good repair. In this Act, the General Assembly enacted comprehensive legislation dealing with the relationship between landlords and tenants under residential rental agreements. The Act imposed obligations upon landlords and tenants which did not exist under common law. For instance, R. C. 5321.04 provides: “(A) A landlord who is a party to a rental agreement shall: [180] “(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.” The Act confers a right of access to enable the landlord to carry out his statutory responsibility: “The tenant shall not unreasonably withhold consent for the landlord to enter into the dwelling unit in order to inspect the premises, make ordinary, necessary, or agreed repairs, * * * supply necessary or agreed services, or exhibit the dwelling unit to***workmen, or contractors.” R. C. 5321.05(B). The landlord is first obligated however “***[e]xcept in the case of emergency or if it is impracticable to do so, [to] give the tenant reasonable notice of his intent to enter and enter only at reasonable times. Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.” R. C. 5321.04. If the tenant withholds consent for the landlord to enter to inspect and make repairs, the landlord may recover any actual damages which result together with reasonable attorney’s fees; terminate the rental agreement; or maintain an action for possession of the premises, or injunctive relief to compel access. R. C. 5321.05(C). If the landlord abuses his right of access by making an entry without satisfying the notice requirement, or makes a lawful entry in an unreasonable manner, or makes repeated demands for entry otherwise lawful which have the effect of harassing the tenant, the tenant may recover actual damages resulting therefrom and obtain injunctive relief to prevent the recurrence of the conduct, and, if he obtains a judgment, reasonable attorney’s fees as well. Alternatively, he may terminate the rental agreement. R. C. 5321.04(B). If a landlord fails to fulfill any of the obligations imposed upon him by R. C. 5321.04, including his obligation to make necessary repairs, the Act provides the affected tenant specific statutory remedies. R. C. 5321.07 provides a procedure whereby a tenant may give written notice to the landlord specifying the acts, omissions or code violations which constitute failure of the landlord’s obligations. If within a reasonable time thereafter the landlord fails to remedy the condition, and if the tenant is current in his rent payments, the [181] tenant may deposit his rent payments with the clerk of court or apply to the court for an order directing the landlord to remedy the condition. The court may order a rent reduction until the landlord’s obligations are fulfilled, and may order the rent deposited with the clerk to be used to remedy the condition. The statute also allows the tenant to terminate the rental agreement where the landlord fails to fulfill his obligations. R. C. 5321.07(B)(3).1 Where the tenant acts in bad faith in resorting to the remedies provided by R. C. 5321.07, or if the condition complained of was the result of an act or omission of the tenant, the tenant may be held liable to the landlord for damages and costs, and, if the tenant intentionally acted in bad faith, for reasonable attorney’s fees. The landlord may, in certain circumstances, obtain partial release of the rent escrowed with the court. R. C. 5321.09; R. C. 5321.10. In Laster v. Bowman (1977), 52 Ohio App. 2d 379, at 382, the court noted that the Landlords and Tenants Act “***establishes various rights and obligations between landlords and tenants in the state of Ohio, now governs the relationship between such parties with regard to rental agreements on residential premises and supersedes all prior Ohio law concerning the rights and obligations encompassed by the act. The new law also provides the exclusive remedies now available to landlords and tenants as to the rights and obligations contained in the Act.” (Emphasis added.) Thus, the General Assembly, in 1974, undertook to balance the competing interests of landlords and tenants and enacted a statutory scheme establishing a complex interrelationship of obligations and remedies. We find no express statutory establishment of a cause of action in tort against a landlord who does not satisfy the obligations imposed upon him by R. C. 5321.04.2 [182] It is argued that R. C. 5321.12 provides the tenant with a cause of action in tort against his landlord. That section provides: “In any action under Chapter 5321 of the Revised Code, any party may recover damages for the breach of contract or the breach of any duty that is imposed by law.” An action in tort alleging negligence of a landlord is not, however, “any action under Chapter 5321 of the Revised Code,” e.g., tenant actions applying for court orders to repair (R. C. 5321.07[B][2]); landlord actions for release of escrowed rent (R. C. 5321.09 and R. C. 5321.10). On the contrary, an action in tort is a remedy established by the common law. 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. The court responded, at page 632: “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.” As in Tair, and especially in light of the failure of the General Assembly to abrogate the common law rules of landlord tort liability despite its adoption of comprehensive landlord-tenant legislation in 1974, we hold that because appellant made no showing of landlord possession and control over the area where appellant’s injuries occurred, which showing is requisite to the establishment of landlord liability under the common law, summary judgment in favor of the landlord was properly rendered. The judgment of the Court of Appeals is affirmed. Judgment affirmed. [183] Herbert, W. Brown, P. Brown and Holmes, JJ., concur. Celebrezze, C. J., Sweeney and Locher, JJ., dissent. Footnotes [1] The remedies summarized in this paragraph are not, however, available to a tenant whose landlord is a party to any rental agreements which cover three or fewer dwelling units and who has been given written notice of that fact at the time of initial tenancy. R. C. 5321.07(C). [2] Cf. Mass. Anno. Laws, Chapter 186, Section 19, as follows: “A landlord or lessor of any real estate except an owner-occupied two or three-family dwelling shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant, his invitee, or any one occupying through or under the tenant, [182] exercise reasonable care to correct the unsafe condition described in said notice***. The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable. * * * ” (Emphasis added.)