Barber v. Mid-Towne Associates

This cause came on to be heard upon an appeal from the decision of the Hamilton County Court of Common Pleas.

Plaintiff-appellant, Carrie Barber, in her sole assignment of error, claims that the trial court erred when it granted summary judgment in favor of her lessor and its management company, defendants-appellees Mid-Towne Associates ("Mid-Towne") and Queen City Management, Inc. ("Queen City").

Barber, an elderly woman, was injured when another tenant, Ted Protich, fell on her in the lobby of their apartment building. Deposition testimony indicates that Protich had been observed by Queen City's employees staggering in a state of intoxication on prior occasions. Shortly before the accident, Protich was told by the receptionist to return to his apartment because he was once again drunk and staggering in the lobby. No further steps were taken by Mid-Towne and Queen City to remove Protich from the common area.

Barber contends that summary judgment was improperly granted because questions of material fact remained to be resolved at trial as to whether a specific duty was breached by Mid-Towne and Queen City and whether the breach was the proximate cause of Barber's injury. The contention is not well taken because the landlord and the building manager were not under a common-law duty to perform acts beyond their ability lawfully to control or restrain the inebriated tenant.

In general, legal responsibility follows legal control in landlord-tenant relationships. Cf. Thomas v. Hart Realty, Inc. (1984), 17 Ohio App. 3d 83, 85, 17 OBR 145, 146, 477 N.E.2d 668,670, citing 2 Restatement of the Law 2d, Torts (1965) 250-254, Sections 360 and 361. Protich was lawfully present in the common area of the apartment building, and the record fails to demonstrate that he had committed any violations of the law or of his lease prior to the accident which would have enabled the landlord or the building manager to command his removal. Further, R.C. 5321.04 cannot be construed to extend to the facts of this case in which no structural defect existed in the premises. See Carmichael v. Colonial Square Apts. (1987),38 Ohio App. 3d 131, 132, 528 N.E.2d 585,587. The judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

SHANNON, P.J., and GORMAN, J., concur.

HILDEBRANDT, J., dissents.