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Berkowitz v. Winston

Supreme Court of Ohio
Nov 21, 1934
193 N.E. 343 (Ohio 1934)


No. 24968

Decided November 21, 1934.

Landlord and tenant — Negligence — Lessor not liable to invitee of lessee, when — Liability incident to occupation or control — Occupation and control not reserved by agreement to make repairs.

1. Promise by the lessor, to make repairs of premises leased, does not impose upon the lessor liability in tort to persons entering thereon at the invitation of the lessee.

2. Liability in tort is an incident to occupation or control; occupation and control are not reserved by an agreement to make repairs.

3. An owner of real estate, who has surrendered possession thereof to a lessee, is not liable to an employee of such lessee for personal injuries resulting from a defective condition of the premises, though he had promised the lessee to make repairs.

CERTIFIED by the Court of Appeals of Hamilton county.

This action is one for damages for personal injuries sustained by the plaintiff, Winston, an employee of a tenant of residence premises owned by the defendant. At the conclusion of plaintiff's case, the trial court directed a verdict for the defendant.

The facts essential to a consideration of the legal question presented are as follows:

When the tenant went into possession of the premises, the defendant agreed to thereafter make certain repairs, some of which were made. Thereafter the tenant requested that the ceiling be repaired and defendant promised to do that.

The tenant sublet portions of the premises to others and plaintiff was one of such sub-tenants.

While performing some service for the tenant, the plaintiff went into tenant's kitchen, and while there was struck by falling plastering and was thereby injured.

Upon proceeding in error the Court of Appeals reversed the judgment of the Court of Common Pleas and remanded the case to that court for further proceedings. Thereafter the Court of Appeals certified the case to this court on the ground of conflict with the judgment in the case of Miller, Admr., v. Ellis, decided by the Court of Appeals of Summit county, April 9, 1928.

Messrs. Dolle, O'Donnell Cash, for plaintiff in error.

Mr. Amos P. Foster and Mr. George Bailes, for defendant in error.

The facts in evidence present but a single question of law: Is the owner of premises rented to another, to whom complete and entire possession has been surrendered, liable for personal injuries resulting to an employee of the lessee from the defective condition of the premises, though the owner had promised the lessee to make repairs?

That precise question was before this court in the case of Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep., 767, and was answered in the negative. It was there held that the landlord was not liable in such action. The principle there announced has been adhered to and consistently approved in numerous cases, notably Shindelbeck v. Moon, 32 Ohio St. 264, 30 Am.Rep., 584; Stackhouse v. Close, 83 Ohio St. 339, 94 N.E. 746; and Marqua v. Martin, 109 Ohio St. 56, 141 N.E. 654.

The test to be applied in every case involving the liability of an owner for injuries arising from the defective condition of premises under lease to another is the question whether the landlord was in possession or control of the premises, or the part thereof the disrepair of which occasioned the injury.

Where portions of a building are rented to several tenants who have the use of halls, stairways, etc., in common, the landlord is held to be in control of such passageways and liable for injury resulting from his want of due care in maintaining same in a reasonably safe condition. That liability is based upon the owner's continued control of such portion of his premises. There is no liability for tort without possession or control, and such possession or control cannot be predicated solely upon a promise to repair.

This principle is fully discussed, with citation of authorities supporting it, in the case of Davies, a Minor, v. Kelley, 112 Ohio St. 122, 146 N.E. 888. The decision of the case of Rice v. Zeigler, ante, 239, 190 N.E. 560, was based upon an application of that principle to the facts there presented, which involved a common passageway.

Neither the instant case nor the case with which the decision before us was found to be in conflict presented any such situation. The facts in neither case involved a common passageway, or any portion of the promises of which control was retained by the owner and for the condition of which he was responsible. On the contrary, here the plaintiff was an invitee of the tenant, in the tenant's kitchen at the time of the injury. The application of the test — possession or control of the premises — relieves the owner of liability to plaintiff in this case. Apparently some misapprehension led to the decision of this case by the Court of Appeals upon authority of Rice v. Zeigler, supra. The particular portion of the premises referred to in the second proposition of the syllabus in that case, just as in the first proposition, was a stairway used in common by different occupants of a tenement house.

The rule that liability in tort is an incident to occupation or control, and that a covenant to repair does not impose upon the lessor a liability in tort at the suit of a lessee or of others on the premises in the right of the lessee, has been generally adopted and applied, though there are some announcements to the contrary.

The majority view is presented with cogent reasoning and ample citation of authority by Cardozo, C.J., in a comparatively recent decision in Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397.

It follows that the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.

Judgment reversed.


Summaries of

Berkowitz v. Winston

Supreme Court of Ohio
Nov 21, 1934
193 N.E. 343 (Ohio 1934)
Case details for

Berkowitz v. Winston

Case Details


Court:Supreme Court of Ohio

Date published: Nov 21, 1934


193 N.E. 343 (Ohio 1934)
193 N.E. 343

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