Allstate Insurance v. Dorsey ( 1988 )

Loretta E. Dorsey appeals from an order of the trial court which granted judgment to the plaintiffs, Allstate Insurance Company ("Allstate"), Charles A. Riddiford and Erika Z. Riddiford. We reverse.

The facts giving rise to this cause are uncontroverted. The Riddifords owned certain residential property, located at 1688 Karg Drive, and rented it to Dorsey. In April 1985, a fire occurred on the premises, causing damage in the sum of $2,008.98. The Riddifords insured the property through Allstate.

The parties agree that the fire was caused by the negligence of Richard A. Dowdell, Dorsey's emancipated son. Richard was Dorsey's guest at the time of the incident and was not a party to the lease. The briefs indicate that Dowdell heated some grease to make french-fried potatoes and the grease ignited. Dorsey was asleep when the fire started. Allstate and the Riddifords brought this action against Dorsey without naming Richard as a defendant. Based upon these stipulated facts, the trial court determined that Dorsey was liable. This appeal followed.

In her sole assignment of error, Dorsey contends that the trial court erred in determining that she was liable as a matter of law for the negligence of her son. Under the facts sub judice, we agree.

R.C. Chapter 5321, the Ohio Landlord and Tenant Act of 1974, enumerates the legal obligations that a residential tenant owes to his or her landlord. Allstate and the Riddifords contend that Dorsey is liable under R.C. 5321.05(A)(6), which provides:

"(A) A tenant who is a party to a rental agreement shall:

"* * *

"(6) Personally refrain, and forbid any other person who is on the premises with his permission, from intentionally or negligently destroying, defacing, damaging, or removing any fixture, appliance, or other part of the premises[.]"

In order for Dorsey to be held liable under the statute for damages caused by the negligent acts of a third person, it must be shown that Dorsey was at least cognizant of the third person's presence, and of his intentions or actions. See Ohio Cas. Ins.Co. v. Wills (1985), 29 Ohio App.3d 219, 221-222, 29 OBR 264, 267, 504 N.E.2d 1164, 1168. At trial, Allstate and the Riddifords appear to have proceeded upon the proposition that R.C. 5321.05(A)(6) imposes strict liability upon a tenant for the negligent acts of a guest. Thus, there were no allegations, nor was there evidence presented, to indicate that Dorsey observed or was otherwise aware of the actions of her son. Consequently, the facts presented to the trial court do not support a finding that Dorsey failed to fulfill her obligations under R.C.5321.05(A)(6). The granting of summary judgment on this basis was improper.

However, Allstate and the Riddifords also contend that Dorsey is liable pursuant to the terms of the lease agreement. Paragraph 8 of the "Standard Conditions" contained in the agreement provides:

"The Lessee(s) shall be liable and shall pay for damage to property, appliances, broken glass, plumbing, [and] sewer and drain stoppage caused by carelessness. The Lessee(s) shall not, however, be held for normal wear and tear consistence [sic] with careful use of the property."

R.C. Chapter 5321 generally governs the obligations and remedies of parties to rental agreements and leases of residential premises in Ohio. See Schroades v. Rental Homes,Inc. (1981), 68 Ohio St.2d 20, 21-22, 22 O.O. 3d 152, 153,427 N.E.2d 774, 775. While a landlord and tenant may include terms and conditions in a rental agreement which impose obligations not contained in R.C. Chapter 5321, terms which are "inconsistent with or prohibited by" R.C. Chapter 5321 may not be included. R.C. 5321.06.

Since Paragraph 8 of the rental agreement makes Dorsey liable for all damages caused by anyone's carelessness, that provision is inconsistent with R.C. 5321.05(A)(6) and is, consequently, unenforceable under R.C. 5321.06.

Summary Dorsey's assignment of error is sustained. The judgment of the trial court is reversed. Pursuant to App. R. 12(B), judgment is hereby entered in favor of Dorsey.

Judgment reversed.

QUILLIN, P.J., concurs.

GEORGE, J., concurs separately.