Humbert v. Sellars

¶1Plaintiff slipped and fell on a wet patio while visiting a friend’s apartment. She sought damages for injuries from the owners and manager of the apartment complex. Defendants moved for summary judgment. The trial court granted the motion. The Court of Appeals affirmed. Humbert v. Sellars, 67 Or App 176,180,677 P2d 760,762 (1984). For the reasons that follow, we reverse the Court of Appeals and remand the case to the circuit court for further proceedings.

¶2In the' trial court defendants stated that they relied on the common-law principle that “a landlord is not subject to Usability to a tenant or a tenant’s invitees or guests for injury incurred on the premises caused by dangerous conditions which existed when the tenant took possession of the rented premises.”1 The plaintiff asserted in response that even if she could not recover under the common law, she was entitled to recover under the Residential Landlord and Tenant Act, ORS 91.700 to 91.895, specifically ORS 91.770(l)(h), which provides that “a dwelling unit shall be considered unhabitable if it substantially lacks: (h) Floors … maintained in good repair.” The trial court rejected plaintiffs contentions, stating:

“I rule that the Landlord-Tenant Law is not applicable to this situation, because it was not the intent of the legislature to make it so. The Landlord-Tenant Law was intended to impose a duty upon the landlord that was concurrent with the duty of the tenant to pay rent. The landlord’s duty was to maintain the premises in a habitable condition, the measure of the damages being the difference between the fair market value of the premises as they had been rented and the value of the premises during the period of breach as they actually existed. That quotation comes from the case of Lane v. Kelley, 57 Or App 197, 1982 Court of Appeals case. I can find no authority when there is no evidence of any intent on the part of the legislature to extend the requirements of this act to a guest of a tenant who is injured on the premises, thereby modifying common law in this matter.

“Because plaintiff has not made out a case under any of the exceptions of the Restatement and because there has been *116no other demonstration of a duty imposed upon the landlord under the facts of this case, [the defendants are] entitled to summary judgment. …”

¶3The Court of Appeals affirmed the trial court. Concerning the common-law rule, the Court of Appeals held that “with certain [inapplicable] exceptions, a lessor of land is not liable to his lessee or others on the land for harm caused by any dangerous condition which existed when the lessee took possession.” 67 Or App at 179, 677 P2d at 761. Considering ORS 91.770(1), the court stated:

“Plaintiff fails to point out or allege in her complaint which subsection of ORS 91.770 she contends was violated by the water accumulation on the patio. Although we agree that a landlord’s duty to a guest is the same as that owed to a tenant, Lyons v. Lich, 145 Or 606, 612, 28 P2d 872 (1934), we do not agree that the water on the patio falls within the statutory guidelines defining which defects amount to unhabitable premises. Plaintiffs basic argument that a guest might state a claim under ORS 91.770 may not be entirely untenable. See Brewer v. Erwin, 287 Or 435, 452, 600 P2d 398 (1979). However, without an additional assertion that defendants failed to provide one of the specifically-enumerated services mandated by ORS 91.770, the argument is irrelevant. We therefore reject plaintiffs argument that the trial court erroneously dismissed her complaint because ORS 91.770 impliedly permits her to state a claim for defendants’ breach of their duty to maintain the tenant’s premises in a habitable condition.” 67 Or App at 180, 677 P2d at 762.

¶4I

¶5Defendants’ motion for summary judgment was based on evidence contained in depositions of plaintiff and of defendant Taylor, who managed the property for the owners, Mr. and Mrs. Sellars. According to the evidence, the property was an apartment complex operated for low income elderly tenants under standards set by the State Housing Authority and the federal Department of Housing and Urban Development. Plaintiff occupied one of the other apartments in the complex.

¶6On the day she was injured, the plaintiff visited her neighbor in the adjoining apartment. In front of the neighbor’s apartment was a patio, enclosed by a fence. The evidence suggests that the patio was within the premises leased to the *117neighbor. It had been raining, and there was standing water on the patio in front of the entry to the neighbor’s apartment. The water was as deep as plaintiffs oxford shoes, reaching up to a cement step in front of the door. She successfully entered the apartment, but on the return trip she slipped in the water and fell, causing her injuries. Some kind of board had been placed on the patio for the purpose of stepping above standing water, but it was some distance away from the cement step and plaintiff did not recall stepping on it.

¶7An affidavit executed by the host neighbor stated that she had had a water problem on the patio since 1978, some three years before the incident. Defendant Taylor, who managed the apartments for the other defendants, testified that he began managing the property in February, 1980, and that the previous property manager told him of the problem. The accident happened in July, 1981.

¶8II

¶9In her petition for review, the plaintiff urges that we should “abolish the immunity afforded to landlords and … apply general negligence principles to the relationship between landlords and tenants.”2 We need not reach that question because we hold that there is evidence showing a violation of ORS 91.770, and defendant therefore was not entitled to summary judgment. ORCP 47C.

¶10Minimum standards of safety and fitness for human habitation have not been left to private ordering and the inventiveness of common-law courts; they have long been imposed by state and local lawmakers. A landlord’s duties under housing codes and the more recent landlord-tenant acts generally are enforceable by public officials or by special civil remedies accorded the tenant. Love, Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability? 1975 Wis L Rev 19, 42-48. Some acts spell out the *118consequences if a landlord’s noncompliance results in personal injuries,3 but many do not. Courts nevertheless have held landlords liable for injuries caused by breaches of such statutory duties as in the case of other safety laws. The point was first made by Cardozo, J., in Altz v. Leiberson, 233 NY 16, 134 NE 703 (1922), when a tenant was injured in her room by a falling ceiling, which the landlord failed to repair after notice:

“At common law there was no duty resting on the landlord of an apartment house to repair the rooms demised. His duty of repair was limited to those parts of the building which the occupants enjoyed in common. The Tenement House Law has changed the measure of his burden.

[The law provided: ‘Every tenement house and all the parts thereof shall be kept in good repair.’]

The command of the statute, directed, as it plainly is, against the owner … has thus changed the ancient rule. … The meaning is that the premises shall not be suffered to fall into decay. The duty to prevent this, which, in part at least, once rested upon the tenant, is now cast upon another.

“A narrower construction ignores, not only the letter of the statute, but the evil to be cured. … We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers. The right extends to all whom there was a purpose to protect.”

¶11Altz v. Leiberson, supra, 233 NY at 17-19, 134 NE at 703-04 (citations omitted). Tort liability for violations of housing laws has been implied in California, Kentucky, Michigan, New Jersey, New Mexico, and Ohio.4

¶12Oregon’s Residential Landlord and Tenant Act *119extends the landlord’s liability to others besides the tenant. ORS 91.725 states that the remedies provided in the act “shall be so administered that an aggrieved party may recover appropriate damages.” In Brewer v. Erwin, 287 Or 435, 441, 600 P2d 398, 403 (1979), we quoted the comment to the corresponding section of the Uniform Residential Landlord and Tenant Act, 7A Uniform Laws Annotated section 1.105(a): “The use of the words ‘aggrieved party’ is intended to indicate that in appropriate circumstances rights and remedies may extend to third persons under this Act or supplementary principles of law …

¶13 An aggrieved party includes a tenant’s guest who is injured by a landlord’s failure to maintain the premises in a habitable condition, if the tenant herself could recover damages for the same injury. The measure of a “habitable condition” may be what is habitable by those who reside in the premises, but when the measure is breached, ORS 91.725 recognizes that others may suffer the consequences. The plaintiff therefore has a cause of action if she is injured because of the defendants’ breach of the act.

¶14Ill

¶15The drafters of ORS 91.770 aimed to establish minimum standards of health, safety, comfort and convenience that rental units must meet in order to be “habitable.”

ORS 91.770 provides:

“(1) A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. For purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks:

…

“(h) Floors, walls, ceilings, stairways and railings maintained in good repair;

<<…>>

¶16“Floors” is not specifically defined in ORS chapter 91. While one definition of “floor” might include only the part of a room upon which one stands, we believe that the legislature likely intended the term to include all floors in the dwelling unit, including an enclosed patio within the tenant’s exclusive control. Other subsections of ORS 91.770(1) refer to areas or things such as “roof and exterior walls” (section *120(l)(a)), and “[b]uilding, grounds and appurtenances” (section (l)(e)).5

¶17*121The specific inclusion, in ORS 91.770(1) (f) of the words “[bjuilding, grounds and appurtenances at the time of the commencement of the rental agreement in every part clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin” suggest that the term “dwelling unit” would include a patio floor such as is involved in this case.6 Section (l)(h) requires “[fjloors, walls, ceilings, stairways and railings [to be] maintained in good repair.” There is no suggestion that floors, stairs and railings include only interior floors, stairs and railings. We hold that the surface upon which the plaintiff was walking was a “floor” within the definition of ORS 91.770(l)(h), and that the trial court erred in granting the defendants’ motion for summary judgment.7

¶18*122The Court of Appeals is reversed. Remanded to the trial court.

¶45specially concurring.

¶46As must be apparent from the title page, the court has wrestled long and hard with this case. The majority now holds that on the defendant’s motion for summary judgment the plaintiff should have prevailed. The majority reaches that result by expressly holding as a matter of law that the surface *123of the patio just outside the door of the tenant’s apartment was a “floor” within the meaning of ORS 91.770(l)(h). That is not enough to get the plaintiff home, however, for the plaintiff had also to show that the floor was not “maintained in good repair.”

¶47Throughout these proceedings plaintiffs position has been that a “structural” change was necessary to alleviate the dangerous condition that existed when the tenancy commenced.1 There was no evidence that the patio surface was not in good repair or that it failed in the function of a floor to bear weight. Had it not been for water temporarily standing on the patio surface, plaintiff would have no arguable claim. Defendant Taylor testified on deposition that the condition was remedied by putting in

“probably a 10 X 12 wood deck and they’re supported on like with 2X4 footings and joists.”

¶48I do not agree that a structural change of that kind is what the legislative text of ORS 91.770(l)(h) reaches by “maintaining] in good repair” a floor. For that reason I cannot join the opinion.2

¶49Plaintiff urged throughout that she was entitled to recover on a common law negligence theory and that we should abandon the general rule of the common law that a lessor of land is not liable to the lessee or others lawfully on the land for physical harm caused by a dangerous condition which existed when the lessee took possession. That rule is stated in Restatement (Second) of Torts § 356.1 understood that resolution of that contention was the reason we allowed review.

¶50I believe that we should reach the issue. I shall not extend this opinion by the many pages necessary to develop the reasons, historical and logical, that I believe that the rule should never have been applied to “others on the land” such as *124this plaintiff and certainly should not now apply. The lessor who creates a dangerous condition should not by reason of his contractual or property arrangements with the lessee be able to avoid liability to a third person who suffers physical injury by reason of that condition. Indeed, the lessor under the common law is liable for injury resulting from such a condition to one outside the premises. See, for example, Restatement (Second) of Torts § 379.3See also 2 Harper and James, The Law of Torts 1509-10, § 27.16.4 There is no logical reason why the guest of a tenant who is injured by the dangerous condition can recover if the injury takes place as the guest approaches the property but cannot recover if injured when he sets foot on the property.

¶51The issue was raised and argued, but I leave to another case that may not be held to come within the Residential Landlord and Tenant Act the publication of my views.5

¶52Because I believe this plaintiff, as a visitor, has pleaded and presented evidence sufficient to raise a material issue of fact for recovery other than under the Residential Landlord and Tenant Act, I concur in the result.