Sikora v. Wenzel

[This opinion has been published in Ohio Official Reports at 

88 Ohio St.3d 493

.]




                SIKORA, APPELLEE, v. WENZEL, APPELLANT, ET AL.
                      [Cite as Sikora v. Wenzel, 

2000-Ohio-406

.]
Landlords and tenants—Landlord’s violation of duties imposed by R.C.
        5321.04(A)(1) or 5321.04(A)(2) constitutes negligence per se—Landlord
        excused from liability under either section, when.
A landlord’s violation of the duties imposed by R.C. 5321.04(A)(1) or
        5321.04(A)(2) constitutes negligence per se, but a landlord will be excused
        from liability under either section if he neither knew nor should have known
        of the factual circumstances that caused the violation. (Shroades v. Rental
        Homes, Inc. [1981], 

68 Ohio St.2d 20

, 

22 O.O.3d 152

, 

427 N.E.2d 774

,
        clarified.)
    (Nos. 99-1301 and 99-1323—Submitted March 7, 2000—Decided May 24,
                                           2000.)
    CERTIFIED by and APPEAL from Court of Appeals for Greene County, No.
                                        98-CA-130.
                                  __________________
        {¶ 1} In September 1996, a deck attached to a condominium owned by Tom
Wenzel collapsed during a party held by one of Wenzel’s tenants. Aaron Sikora,
one of the guests at the party, was injured as a result of the collapse and brought the
instant negligence action. After the incident, an engineering firm hired by the city
of Fairborn (the “City”) concluded that the deck’s collapse resulted from improper
construction and design in violation of the Ohio Basic Building Code (the
“OBBC”).
        {¶ 2} A decade earlier, before the deck was built, Zink Road Manor
Investment (“Zink”) owned and was developing the property where the
condominium was located as a series of condominiums. After Zink submitted plans
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for the condominiums to the City, Zink decided to modify the units to include
decks. Documents containing the deck design were given to the City for review at
a meeting between the construction company and the City. The City, however,
rejected these plans because they violated the OBBC and contained insufficient
information. Although the City made no further inspection of the decks during
construction nor received from Zink any modified plans or other documents
sufficient for it to proceed with approval, the City nevertheless issued Zink a
Certificate of Occupancy.
       {¶ 3} After the City issued the certificate, Wenzel purchased the property at
issue from Zink. It is undisputed that Wenzel had no knowledge, either actual or
constructive, as to any defect in the deck that was attached to the condominium.
The parties also agree that Wenzel was in no way involved in the discussions
concerning the deck between the City, the general contractor, or the subcontractors,
and that he lacked any privity of contract with these entities.
       {¶ 4} Following the deck’s collapse, Sikora sued Wenzel, the contractor,
and the design company, alleging that each was negligent and therefore jointly and
severally liable. Sikora based his claim against Wenzel in part upon a violation of
R.C. 5321.04(A)(1), which requires landlords to comply with all applicable
provisions of the OBBC. The trial court granted summary judgment in Wenzel’s
favor on the basis that he lacked notice of the defect in the deck.
       {¶ 5} Sikora appealed the trial court’s decision to the Second District Court
of Appeals, which reversed and remanded the decision below. In so doing, the
court of appeals rejected the application of this court’s decision in Shroades v.
Rental Homes, Inc. (1981), 

68 Ohio St.2d 20

, 

22 O.O.3d 152

, 

427 N.E.2d 774

. In
Shroades, this court paired the concepts of negligence per se with the requirement
of notice of the defective condition for landlord liability under R.C. 5321.04(A)(2).
The court of appeals disagreed with the Shroades notice requirement, and reasoned
therefrom that Wenzel could be held strictly liable for the collapse of the deck under


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R.C. 5321.04(A)(1).     The court of appeals also concluded that its judgment
conflicted with judgments of other appellate districts that have applied this court’s
reasoning in Shroades in factually similar cases.
       {¶ 6} Case Nos. 99-1301 and 99-1323 have been consolidated and are
before this court upon our determination that a conflict exists, and upon the
allowance of a discretionary appeal.
                               __________________
       Dyer, Garofalo, Mann & Schultz and Douglas A. Hess, for appellee.
       Young & Alexander Co., L.P.A., Mark R. Chilson, Jill S. Patterson and
Allison D. Michael, for appellant.
       Buckingham, Doolittle & Burroughs, L.L.P., and Jacqueline Marks Dossi,
urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
       Havens Willis L.L.C., William L. Willis, Jr., and Michael J. Sikora III,
urging reversal for amicus curiae Ohio Apartment Association.
                               __________________
       COOK, J.
       {¶ 7} With this decision 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 R.C. 5321.04(A)(1) (failing to comply
with the Ohio Basic Building Code) constitutes negligence per se, but that such
liability may be excused by a landlord’s lack of actual or constructive notice of the
defective condition.
       {¶ 8} In Shroades v. Rental Homes, 

Inc., supra,

 this court set forth the broad
principle that landlords are subject to tort liability for violations of R.C. 5321.04.
Shroades, syllabus. Having decided that issue, the court concluded that a landlord’s
failure to make repairs as required by R.C. 5321.04(A)(2) constitutes negligence
per se, but that a landlord’s notice of the condition causing the violation is a


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prerequisite to liability. The court of appeals here declined to apply this conclusion
from Shroades to the instant violation of R.C. 5321.04(A)(1). The appellate court
reasoned that no justification exists for the imposition of a notice requirement in a
negligence per se context, and therefore held Wenzel strictly liable without regard
to his lack of notice of the defect.
        {¶ 9} 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 plaintiff’s burden of proof and to
which the concept of notice may or may not be relevant.
        {¶ 10} 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 applicable. 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
instrumentality, liability for violations of certain statutes, and liability for injuries
caused by a manufacturer, distributor, or vendor of certain products. 

Id.

        {¶ 11} 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), 

67 Ohio St.3d 274

, 

617 N.E.2d 1075

; see, also, Gore v. People’s
Savings Bank (1995), 

235 Conn. 360, 377-378

, 

665 A.2d 1341, 1349

. Notably, most
courts refuse to impose strict liability in the context of landlord liability for
defective conditions, recognizing the need for some kind of notice element prior
to the imposition of liability. See Browder, supra, at 136.


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                                 January Term, 2000




        {¶ 12} 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 depends upon
the degree of specificity with which the particular duty is stated in the statute. See,
e.g., Eisenhuth v. Moneyhon (1954), 

161 Ohio St. 367

, 

53 O.O. 274

, 

119 N.E.2d 440

, paragraph three of the syllabus.
        {¶ 13} Where a statute contains a general, abstract description of a duty, a
plaintiff proving 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 relevant consideration. Id.; see, also, Texler v. D.O. Summers Cleaners & Shirt
Laundry Co. (1998), 

81 Ohio St.3d 677, 680

, 

693 N.E.2d 271, 274

; 

Gore, supra,

235 Conn. at 373

, 

665 A.2d at 1347

.
        {¶ 14} 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), 

82 Ohio St.3d 563

, 565, 

697 N.E.2d 198, 201

, quoting Eisenhuth v. Moneyhon, supra, 161 Ohio St. at 374-375, 53 O.O.
at 278, 119 N.E.2d at 444. In situations where a statutory violation constitutes
negligence per se, the plaintiff will be considered to have “conclusively established
that the defendant breached the duty that he or she owed to the plaintiff.” Chambers,
id. In such instances, the statute “serves as a legislative declaration of the standard
of care of a reasonably prudent person applicable in negligence actions.” Thus the
“reasonable person standard is supplanted by a standard of care established by the
legislature.” 57A American Jurisprudence 2d, supra, at 672, Negligence, Section
748.
        {¶ 15} Negligence per se, however, is not equivalent to “a finding of


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liability per se because the plaintiff will also have to prove proximate cause and
damages.” 

Chambers, supra,

82 Ohio St.3d at 565

, 

697 N.E.2d at 201

, citing Pond
v. Leslein (1995), 

72 Ohio St.3d 50, 53

, 

647 N.E.2d 477, 479

. Negligence per se
lessens the plaintiff’s burden only on the issue of the “actor’s departure from the
standard of conduct required of a reasonable man.” 2 Restatement of the Law 2d,
Torts (1965) 38, Section 288B, Comment b. “Such negligence makes the actor
subject to liability * * * but it does not necessarily make him liable.” 

Id.

       {¶ 16} 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), 

14 Ohio St.3d 68, 71

, 14 OBR 506, 

471 N.E.2d 776, 779, fn. 5

, quoting Prosser, Law of Torts (4
Ed.1971) 200-201, Section 36; Smiddy v. The Wedding Party, Inc. (1987), 

30 Ohio St.3d 35, 37

, 30 OBR 78, 79, 

506 N.E.2d 212, 215

 (applying the concept of a legal
excuse in the context of motor vehicle operation); Zehe v. Falkner (1971), 

26 Ohio St.2d 258, 261

, 

55 O.O.2d 489, 491

, 

271 N.E.2d 276, 278

.
       {¶ 17} Lack of notice is among the legal 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 a landlord). This concept is also specifically recognized in 2 Restatement of
the Law 2d, Property, Landlord & Tenant (1977) 261-262, Section 18.3, Comment


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                                January Term, 2000




c, as applicable to landlord liability for failing to remedy a dangerous condition.
       {¶ 18} 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 R.C.
5321.04(A)(1) only as evidence of his negligence and therefore to consider his lack
of notice as crucial to a determination of the breach of his duty of care. Sikora, in
contrast, would have us uphold the appellate court’s determination that strict
liability applies and that Wenzel’s lack of notice is irrelevant.
       {¶ 19} We reject Sikora’s argument that the statute imposes strict liability.
R.C. 5321.04(A)(1) requires landlords to “[c]omply with the requirements of all
applicable building, housing, health, and safety codes that materially affect health
and safety.”   Considering the general reluctance among courts to impose strict
liability in this context, the wording of the statute fails to convince us that the
General Assembly intended to create strict liability upon a violation of this statutory
requirement. Absent language denoting that liability exists without possibility of
excuses, we are unpersuaded that the intent behind this statute was to eliminate
excuses and impose strict liability.
       {¶ 20} Nor do we agree with Wenzel that the language of that statute is so
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), 

14 Ohio St.2d 144, 150

, 

43 O.O.2d 246, 249

, 

237 N.E.2d 140, 143

. Accordingly, we conclude that the
statute requires landlords to conform to a particular standard of care, the violation
of which constitutes negligence per se.
       {¶ 21} Having determined that the statute’s violation constitutes negligence
per se, we turn now to the question of whether Wenzel’s lack of notice of the defect
in the deck excuses the violation. Both parties agree that Wenzel neither knew nor


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had any way of knowing of the defective condition. The City issued the necessary
approval documents despite having failed to reinspect the situation. Because
Wenzel was not involved at that point, however, he had no reason 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
R.C. 5321.04(A)(1), his violation is excused and he is not liable to Sikora for failing
to comply with the OBBC.
        {¶ 22} We hold, therefore, that a landlord’s violation of the duties imposed
by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence per se, but a
landlord will be excused from liability under either section if he neither knew nor
should have known of the factual circumstances that caused the violation.
(Shroades v. Rental Homes, Inc. [1981], 

68 Ohio St.2d 20

, 

22 O.O.3d 152

, 

427 N.E.2d 774

, clarified.) To the extent that Shroades was ambiguous as to the source
and nature of the notice requirement applicable to a violation of a statute imposing
negligence per se, we clarify that standard by our decision here.
        {¶ 23} For the foregoing reasons, the judgment of the court of appeals is
reversed.
                                                                  Judgment reversed.
        MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
        RESNICK, J., concurs separately.
        DOUGLAS, J., not participating.
                               __________________
        ALICE ROBIE RESNICK, J., concurring.
        {¶ 24} 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


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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.
                              __________________




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