LaCourse v. Fleitz ( 1986 )

Clifford F. Brown, J.

The sole question posed by this appeal is whether a landlord has a duty, at common law or by virtue of R.C. 5321.04(A)(3), to keep common areas of the leased premises free of accumulated ice and snow. We hold that no such duty exists, and we therefore reverse the judgment of the court of appeals.

The common law of this state has never recognized a duty on the part of landlords to clear naturally accumulated ice and snow from common areas of the leased premises. This court has held that “[t]he dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that a landlord may reasonably expect that a tenant * * * will act to protect himself against them.” DeAmiches v. Popczun (1973), 35 Ohio St. 2d 180 [64 O.O.2d 160], paragraph one of the syllabus. Thus, a landlord is under no duty to take action to mitigate the dangers posed by accumulated ice and snow, and may justifiably assume that the tenant will apprehend the danger and act to ensure his own safety.

This court has repeatedly held that an owner of property is not liable for injuries to business invitees who slip and fall on natural accumulations of ice and snow. See, e.g., Debie v. Cochran Pharmacy-Berwick, Inc. (1967) , 11 Ohio St. 2d 38 [40 O.O.2d 52]. The common thread running through these cases is the principle that the owner or occupier has a right to assume that his visitors will appreciate the risk and take action to protect themselves accordingly. See Sidle v. Humphrey (1968), 13 Ohio St. 2d 45 [42 O.O.2d 96], paragraphs one and two of the syllabus; Jeswald v. Hutt (1968), 15 Ohio St. 2d 224, 227 [44 O.O.2d 196]; Mikula v. Slavin Tailors (1970), 24 Ohio St. 2d 48, 56-57 [53 O.O.2d 40]. It is only where it is shown that the owner had superior knowledge of the particular danger which caused the injury that liability attaches, because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate. Debie, supra, at 40; Mikula, supra, at 57.

We are aware that Debie, Jeswald and Mikula involve the liability of a business owner or occupier for injuries sustained by a business invitee, whereas the case sub judice involves the liability of a landlord to his tenant. We do not consider this a material distinction. Where the lease itself imposes no contractual duty on the landlord to clear accumulated ice and snow from the common areas, we see no compelling reason to impose it judicially on a landlord when we have refused to recognize any such duty on the part of business owners and occupiers.

It may be argued that a landlord accepts the benefits of paying tenants and should therefore be charged with the responsibility of taking reasonable steps to ensure their safety. It could be said that a landlord is in the better position to take action to clear accumulated snow and ice, since he owns the property and has the easiest access to all common areas. However, these arguments are no less applicable to business owners. They invite business visitors to enter the premises in hopes of receiving a benefit from them. They are in the best position to keep their property free of accumulated snow and ice. We have declined to elevate these arguments over the more compelling reasoning that the business owner is justified in assuming that his visitors are/perceptive enough to observe the conditions and prudent enough to proceed with caution. Moreover, the accumulation of ice and snow is not chargeable to the owner, who did not create it. This natural and unconcealed condition is distinguishable from other conditions, such as a loose stair railing or open elevator shaft, which are often not obvious to the user.

Appellee has not alleged that appellant’s knowledge of the risk posed by the ice accumulated on the front step was superior in any way to her own, or that appellant had notice that the conditions on that spot were substantially more dangerous than those prevailing generally. There is nothing to indicate that the dangers posed by the accumulation were not obvious to appellee. In fact, appellee stated in her deposition that she was aware that there was ice on the patio step and that she appreciated the danger it posed. She acknowledged that ice and snow conditions prevailed generally in the area.

We also reject appellee’s argument that R.C. 5321.04(A)(3) imposes a duty on the defendant landlord to keep common areas free from accumulated ice and snow. The statute, which was enacted as part of the Landlords and Tenants Act of 1974, provides:

“A landlord who is a party to a rental agreement shall:

“(3) Keep all common areas of the premises in a safe and sanitary condition.”

We do not agree with appellee’s contention that the legislature intended by this provision to impose a duty on landlords to clear accumulated snow and ice from the common areas of the leased premises.

Appellee directs this court’s attention to our statements in Shroades v. Rental Homes (1981), 68 Ohio St. 2d 20 [22 O.O.3d 152], to the effect that the legislature’s enactment of R.C. Chapter 5321, the Landlords and Tenants Act of 1974, was intended to broaden the protection afforded to tenants. Id. at 25. Appellee contends that Shroades requires that the Act be liberally construed to effectuate this legislative intent of broadening the rights of tenants.

We agree with the proposition that the Act should be read liberally in favor of tenants’ rights, but we do not advocate a reading of R.C. 5321.04(A)(3) which would impose a duty on landlords to clear accumulated ice and snow from common areas. It is a firm principle of statutory construction that liability imposed by statute shall not be extended beyond the clear import of the terms of the statute. Weiher v. Phillips (1921), 103 Ohio St. 249, paragraph one of the syllabus. Courts may not presume that the statute was intended to abrogate the common law. Such an intention must be expressly declared by the legislature or necessarily implied in the language of the statute. Branham v. Fordyce (1957), 103 Ohio App. 379, 384 [3 O.O.2d 408].

There is no indication to be found in the language of R.C. 5321.04 (A)(3) that the legislature intended by its enactment to impose a novel duty on landlords to keep common areas free of ice and snow. No mention is made of such conditions. The statute merely states that the landlord shall keep common areas “safe and sanitary * * It would be judicially untenable to expand this phrase to create liability for injuries resulting from the natural accumulation of ice and snow. We are not free to add words to a statute on the basis that the addition strikes us as desirable, or because we believe the legislature “meant” to include it. Wheeling Steel Corp. v. Porterfield (1970), 24 Ohio St. 2d 24, 28 [53 O.O.2d 13]. Had the legislature intended to dismantle a long-standing rule of the common law, it would have expressly so declared.

An order granting a motion for summary judgment will be upheld where, construing the evidence most favorably in favor of the non-moving party, the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Houk v. Ross (1973), 34 Ohio St. 2d 77 [63 O.O.2d 119], paragraph one of the syllabus; Civ. R. 56(C). In accordance with the foregoing discussion, we find that appellee’s evidence, construed most favorably to her, fails to generate a triable issue of fact, and that the appellant landlord is entitled to judgment as a matter of law.

Accordingly, based on the foregoing, we hold that R.C. 5321.04(A)(3) does not impose a duty on landlords to keep common areas of the leased premises clear of natural accumulations of ice and snow.

The judgment of the court of appeals is therefore reversed.

Judgment reversed.

Celebrezze, C.J., Locher and Wright, JJ., concur. Holmes and Douglas JJ., concur in the syllabus and the judgment. Sweeney, J., dissents.