Summary
In Meier v. Vistula Heritage Village (1992), 62 Ohio Misc.2d 632, 637, 609 N.E.2d 1360, 1363-1364, the court noted that a breach of contract action may lie where the landlord fails to meet his obligations pursuant to the parties lease or pursuant to an implied agreement.
Summary of this case from Doe v. Flair Corp.Opinion
No. 91-3810.
Decided October 13, 1992.
Dixon Dixon, Randall C. Dixon and John Blaufuss, for plaintiff.
Eastman Smith, David M. Jones and Timothy C. Kuhlman, for defendants.
This cause comes before the court on the motion of defendants Vistula Heritage Village, the National Housing Partnership, Christopher Hanvack, and Lilia Gotiangco for summary judgment (hereinafter referred to as "defendants/landlords"). Upon consideration of this motion, I find that summary judgment should be granted in part and denied in part.
I
The undisputed facts in this case are that plaintiff, Eunice R. Meier, was awakened by a noise in her kitchen in her residence at 823 N. Erie Street, Apt. B, sometime after midnight on November 22, 1990. Louis Clarence Jackson, an assailant unknown to the plaintiff at the time of the incident, had broken into plaintiff's apartment. Meier was then sexually assaulted by the intruder.
Louis Clarence Jackson is also named as a defendant in plaintiff's lawsuit for intentional infliction of emotional distress. Service has not been perfected on defendant Jackson and this judgment is not dispositive of the claim against him.
II
The general rules governing motions for summary judgment filed pursuant to Civ.R. 56 are well established. In Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, the Supreme Court of Ohio stated the requirements that must be met before a motion for summary judgment can be granted:
"The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.
"The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment." See, also, Johnson v. New London (1988), 36 Ohio St.3d 60, 61, 521 N.E.2d 793, 794.
The Sixth District Court of Appeals has consistently held that motions for summary judgment should be granted with caution in order to protect the nonmoving party's right to trial. As stated by the court in Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 14-15, 13 OBR 8, 16, 467 N.E.2d 1378, 1386:
"We recognize that summary judgment, pursuant to Civ.R. 56, is a salutary procedure in the administration of justice. It is also, however, a procedure which should be used cautiously and with the utmost care so that a litigant's right to a trial, wherein the evidentiary portion of the litigant's case is presented and developed, is not usurped in the presence of conflicting facts and inferences. * * * It is settled law that `[t]he inferences to be drawn from the underlying facts contained in the affidavits and other exhibits must be viewed in the light most favorable to the party opposing the motion, * * *' which party in the instant case is appellant. * * * It is imperative to remember that the purpose of summary judgment is not to try issues of fact, but rather to determine whether triable issues of fact exist." (Citations omitted.) See, also, Bowlds v. Smith (1961), 114 Ohio App. 21, 29, 18 O.O.2d 305, 310, 180 N.E.2d 184, 189.
III
Plaintiff asserts in her claim that the defendants/landlords were negligent for not taking adequate steps to secure the residence, were in violation of the Landlord/Tenant Act, R.C. 5321.04(A), for failing to make repairs to a faulty window, and were in breach of contract for not maintaining the apartment in a safe condition. Defendants/landlords' motion for summary judgment argues that they have no duty or obligation to protect the plaintiff/tenant from the intentional criminal acts of third-parties, under statutory law, contract, or common-law theories.
A. Statutory Law
Plaintiff claims in Count Two of her complaint that she is entitled to relief because the defendants/landlords failed to repair a defective window in violation of R.C. 5321.04. This statute imposes a duty for landlords to maintain their premises in a "fit and habitable condition" and to "maintain in good and safe working order and condition all * * * heating, ventilating, and air conditioning fixtures and appliances * * *." R.C. 5321.04(A)(2) and (A)(4). Plaintiff claims that because her windows were often very difficult to close in humid and rainy weather, these ventilating fixtures were not maintained in good and safe working order.
In Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 25-26, 22 O.O.3d 152, 155, 427 N.E.2d 774, 778, the court stated: "A violation of a statute which sets forth specific duties constitutes negligence per se. However, in addition to negligence per se, proximate cause for the injuries sustained must be established. Also it must be shown that the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the landlord." (Citations omitted.)
In the case sub judice, a dispute exists whether the defendants/landlords were notified of the faulty windows. However, even if the plaintiff did notify the defendants/landlords, she cannot recover unless the faulty windows were a proximate cause of the attack upon her. In Shroades, the tenant was injured by the faulty condition of the premises and not from the acts of a third party as in the present case. Plaintiff argues that the intervention of the third party presents an issue of proximate cause.
This court was presented with the same issue in Cherkiss v. Thomas (Nov. 21, 1983), Lucas C.P. No. 82-3325, unreported, affirmed (Apr. 13, 1984), Lucas App. No. L-83-416, unreported. The Lucas County Court of Common Pleas held in that case that "in order to recover for injuries sustained as a result of the violation of a statute, plaintiff must show that she suffered the kind of injury which the statute was designed to prevent." Id. at 4. The court reasoned that:
"Section 5321.04 requires the landlord to comply with housing codes, keep the premises clean, [and] maintain utilities and appliances. In turn, the tenant is obligated to keep the residence clean, operate the utilities properly, maintain appliances and ensure that strangers do not destroy the property. The act also gives the tenant remedies to be used in the event that the landlord violates his duties. Thus upon reading the statute, it becomes clear that the legislature enacted the provisions to protect the tenant from filth, adverse weather conditions, and such injuries as falling down stairs, gas explosions, and falling plaster. To extend this statute any further would be to encroach upon the powers of the legislature." Id. at 5-6.
Under Cherkiss, landlords are not under an obligation to protect against unforeseeable events outside the scope of R.C. 5321.04. The majority of cases also holds that unforeseeable events outside the scope of the statute are not actionable. See Pamer v. Pritchard Bros. (1990), 61 Ohio Misc.2d 150, 575 N.E.2d 900; Barber v. Mid-Towne Assoc. (1990), 62 Ohio App.3d 384, 575 N.E.2d 879; Carmichael v. Colonial Square Apts. (1987), 38 Ohio App.3d 131, 528 N.E.2d 585. Plaintiff could recover for damage to personal property from rain or wind that may have occurred from open windows that could not close, but not from a criminal act. A landlord is not the insurer of rental property from criminal activity. Sciascia v. Riverpark Apts. (1981), 3 Ohio App.3d 164, 166, 3 OBR 188, 190, 444 N.E.2d 40, 42.
Plaintiff relies on Stancil v. K.S.B. Invest. Mgt. Co. (1991), 62 Ohio App.3d 765, 577 N.E.2d 452, for the notion that current case law supports recovery under R.C. 5321.04. However, the issue raised in that case primarily concerned the requirement of notice, to be given in the jury instructions; proximate cause was never addressed. Accordingly, there is no issue of material fact with regard to the duty imposed by statute and defendants/landlords' motion for summary judgment is well taken on this issue.
B. Contract Law
Plaintiff claims in Count Three of her complaint that Paragraphs 6 and 10 of her lease agreement place a duty on the defendants/landlords to maintain the apartment in a safe condition. Paragraph 6 states:
"6. Condition of Dwelling Unit: By signing this Agreement, the Tenant acknowledges that the unit is safe, clean and in good condition. The Tenant agrees that all appliances and equipment in the unit are in good working order, except as described in the Unit Inspection Report which is Attachment 2 to this Agreement. The Tenant also agrees that the Landlord has made no promises to decorate, alter, repair or improve the unit, except as listed on the Unit Inspection Report."
Paragraph 10 of the lease states in pertinent part:
"10. Maintenance
"a. The landlord agrees to:
"* * *
"2. maintain the common areas and facilities in safe condition;
"* * *
"4. maintain all equipment and appliances in safe and working order;
"5. make necessary repairs with reasonable promptness.
"b. The tenant agrees to:
"* * *
"4. give the landlord prompt notice of any defects in the plumbing, fixtures, appliances, heating, and cooling equipment or any other part of the unit or related facilities."
The lease does require the defendants/landlords to maintain the apartment in a safe and working condition. However, "safe" is not necessarily synonymous with "secure." "It is a well-known principle that contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." (Citations omitted.) Skivolocki v. East Ohio Gas Co. (1974), 38 Ohio St.2d 244, 247, 67 O.O.2d 321, 322, 313 N.E.2d 374, 376.
There is no provision in the lease which imposes a duty for the landlord to provide security. Similarly, there is no provision that requires bars to be placed on the windows. Further, as the deposition of Eunice R. Meier indicates, she never interpreted the lease as requiring the landlord to provide security.
Nor can a contract be implied in this case, as was the situation in Blair v. Property Mgt. Consultants (1987), 40 Ohio App.3d 103, 531 N.E.2d 752. In that case, the tenant, prior to renting the apartment, requested that locks be placed on the windows, and the landlord agreed to do so. After moving in, the tenant discovered locks had not been placed on the windows, but the windows were secured with sticks instead. The tenant was subsequently raped by an intruder. The trial court determined that there was an issue of fact whether a contract existed.
This case is distinguishable from Blair. The landlord and tenant in Blair bargained that the tenant would take the apartment if locks were installed. No such bargaining took place in the instant case. Locks were on the windows; bars were never promised, nor were they a requirement under the lease.
Reasonable minds can only conclude that the landlords were not required to provide security, and there exists no genuine issue of material fact that defendants/landlords breached a contractual duty. Defendants/landlords are entitled to summary judgment on this issue.
C. Common-Law Negligence
Count One of plaintiff's complaint alleges that the defendants/landlords were negligent for not repairing the windows. Generally, landlords have no duty to protect tenants from the criminal acts of third persons, but only have to take reasonable precautions to provide reasonable security in common areas. Pamer v. Pritchard Bros. (1990), 61 Ohio Misc.2d 150, 153, 575 N.E.2d 900, 901, citing Thomas v. Hart Realty Co. (1984), 17 Ohio App.3d 83, 17 OBR 145, 477 N.E.2d 668, and Carmichael v. Colonial Square Apts. (1987), 38 Ohio App.3d 131, 528 N.E.2d 585. See, also, Cherkiss, supra and Blair, supra.
With the facts construed most favorably to the plaintiff, there is evidence that the landlords had constructive notice of the dangerous condition. Meier had called the receptionist at the office as per procedure and complained about the windows, although no work order was made. Also, maintenance men had occasionally helped Meier shut her difficult windows and were aware of the problems. There is evidence that the sidewalk between her apartment and the next is used constantly by people going to and from the grocery store, making this walkway between apartments a common area. It was in this area that the intruder cut the screen on the kitchen window over time to gain entrance to Meier's apartment. The defendants/landlords disregarded Meier's requests for the windows to be fixed and her increasing concerns for her safety. Reasonable minds could differ whether the defendants/landlords were negligent in their duty to provide reasonable security.
Liability may also be found under the theory set forth in 2 Restatement of the Law 2d, Torts (1965) 135, Section 323:
"Negligent Performance of Undertaking to Render Services
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if:
"(a) his failure to exercise such care increases the risk of such harm, or
"(b) the harm is suffered because of the other's reliance upon the undertaking." (Emphasis added.)
This Restatement principle has been looked upon favorably in Ohio and other jurisdictions. See Pamer v. Pritchard Bros. (1990), 61 Ohio Misc.2d 150, 575 N.E.2d 900; Lay v. Dworman (Okla. 1987), 732 P.2d 455, 459; Feld v. Merriam (1984), 506 Pa. 383, 391-393, 485 A.2d 742, 746-747. In Pamer, after an abduction of a child from the apartment complex parking lot, the landlords provided extra security officers and reassured tenants that the building was safe. Thereafter, Pamer was sexually assaulted by an intruder who entered her bedroom through her bedroom window. The landlords' motion for summary judgment was denied based on the tenant's detrimental reliance.
In the present case, although there is no detrimental reliance, reasonable minds can differ whether the failure to fix the windows increased the risk of Meier's being sexually assaulted. There is evidence that the intruder had been cutting away at the kitchen window screen over several nights. The intruder might have abandoned his attempts to gain entrance if Meier was able to close and lock her window. Given these circumstances, there are genuine issues of material fact that the defendants/landlords' negligence may have caused plaintiff's injuries. For the foregoing reasons, summary judgment must be denied as to the defendants/landlords on the issue of negligence.
IV
Defendants Christopher Hanvack and Lilia Gotiangco also move for summary judgment because they were never general partners of Vistula Heritage Village or the National Housing Partnership, according to the affidavit executed by Susan Backman. Since there is no evidence to the contrary, Christopher Hanvack and Lilia Gotiangco are entitled to summary judgment.
JUDGMENT ENTRY
It is ORDERED that the motion of defendants Vistula Heritage Village and the National Housing Partnership for summary judgment as to Count Two and Count Three be granted, and that Counts Two and Three of the complaint be dismissed with prejudice.
It is further ORDERED that the motion of defendants Vistula Heritage Village and the National Housing Partnership for summary judgment as to Count One be denied, and the case be continued for trial on that count.
It is further ORDERED that the motion of defendants Christopher Hanvack and Lilia Gotiangco for summary judgment be granted, and that the complaint as to them be dismissed with prejudice.
Judgment accordingly.