§10.2 Premises Liability in the Landlord-tenant Context

• Library: Torts (OSBar) (2012 Ed.)

§10.2 PREMISES LIABILITY IN THE LANDLORD-TENANT CONTEXT

§10.2-1 Sources and Scope of Landlord Liability

In the landlord-tenant context, a landlord's liability for injuries to a tenant or to third parties may arise in a negligence action based on the common law of Oregon, or in a statutory action based on a violation of the Oregon Residential Landlord Tenant Act (ORLTA), codified at ORS chapter 90, or other statutory or code provisions. The ORLTA and other statutes do not supersede the common law of personal injury liability between a landlord and a tenant; that is, a tenant may bring both common-law negligence claims and statutory claims against his or her landlord in the same action. Waldner v. Stephens, 345 Or 526, 538, 200 P3d 556 (2008).

Under the ORLTA, and in many cases under the common law, a landlord's liability extends to third persons in addition to tenants. Humbert v. Sellars, 300 Or 113, 119, 708 P2d 344 (1985) ("[a]n aggrieved party includes a tenant's guest who is injured by a landlord's failure to maintain the premises in a habitable condition, if the tenant herself could recover damages for the same injury"); Bellikka v. Green, 306 Or 630, 640, 762 P2d 997 (1988) (noting tendency of common law to consider landowner's liability to both visitors and tenants as being the same).

Common-law negligence claims are subject to the two-year statute of limitations set forth in ORS 12.110(1). Claims arising under the ORLTA are subject to the one-year statute of limitations set forth in ORS 12.125. Waldner v. Stephens, 345 Or 526, 542-543, 200 P3d 556 (2008).

§10.2-2 Common Law

§10.2-2(a) History

The lawyer should be aware of the confusing history of the common law in Oregon on premises liability in the landlord-tenant context. Indeed, the Oregon Supreme Court has observed that "this court's view of the common law in this area has changed over time and that, even taking that evolution into account, our cases may not have been entirely consistent." Waldner v. Stephens, 345 Or 526, 535, 200 P3d 556 (2008).

Until 1968, Oregon courts followed the general rule expressed in the Restatement (Second) of Torts §356 (1965): in the absence of an exception, a landlord is not subject to liability to a tenant for injury incurred on the premises caused by a dangerous condition that existed when the tenant took possession of the rented premises. The noted exceptions are set forth in Restatement, supra, §§357, 360-362. Beginning with its 1968 decision in Jensen v. Meyers, 250 Or 360, 441 P2d 604 (1968), however, the Oregon Supreme Court departed from the rule in the Restatement and identified a new standard discussed in §10.2-2(b). This history, including the exceptions, is set forth in Buoy v. Soo Hee Kim, 232 Or App 189, 195-196, 221 P3d 771 (2009).

CAVEAT: Cases after Jensen have created confusion on the extent to which the exceptions to the rule in the Restatement, supra, §356 still reflect Oregon's common law. The lawyer must use care when relying on any section of the Restatement for principles of law relating to premises liability in the landlord-tenant context.

§10.2-2(b) General Rule—Conditions Preceding the Lease

The general rule for landlord liability in Oregon has evolved from a trio of cases. In its first departure from the rule in the Restatement (Second) of Torts §356 (1965) (discussed in §10.2-2(a)), the court in Jensen v. Meyer, 250 Or 360, 364, 441 P2d 604 (1968), articulated the following standard: "[T]he nature of the defect might be such that the landlord would reasonably expect that the tenant would take steps to remedy the defect or otherwise safeguard persons entering them at his invitation."

After a comprehensive review of the history of Oregon's common law in landlord liability, the court in Bellikka v. Green, 306 Or 630, 649 n 15, 762 P2d 997 (1988), ratified the Jensen standard, and determined that under most circumstances, questions concerning "reasonableness" are matters to be determined by the factfinder, rather than by the court as occurred in Jensen.

The court of appeals has interpreted the Bellikka opinion as endorsing the overarching principle that

a commercial lessor is liable in negligence for reasonably foreseeable injuries to invitees of its lessee where those injuries arise from known or reasonably knowable conditions antedating the lease, unless, in the totality of the circumstances, including the nature of the potentially hazardous condition and the lessor's opportunity to remedy that condition, the lessor "reasonably expect[ed] that the tenant would take steps to remedy the defect or otherwise to safeguard persons entering [the premises] at his invitation."

Walsh v. Spalding & Son, Inc., 216 Or App 55, 64, 171 P3d 1032 (2007), (quoting Bellikka, 306 Or at 647, and Jensen, 250 Or at 364) (emphasis in original). Thus, the Walsh opinion describes and refines the general rule followed in Oregon for landlord liability for injuries arising from conditions that predate the lease.

NOTE: The court in Walsh appears, in the quotation above, to have interpreted the rule of Bellikka as applying only to commercial lessors, even though both Jensen and Bellikka concerned residential leases. Furthermore, in a residential lease case decided after Walsh, the Oregon Court of Appeals applied the "Walsh rules about landlord liability." Buoy v. Soo Hee Kim, 232 Or App 189, 200, 221 P3d 771 (2009). Therefore, the lawyer is likely safe in applying Walsh's summary of the principles of landlord liability in both commercial and residential lease cases.

§10.2-2(b)(1) Factors in Determining Reasonableness of Landlord's Expectation that Tenant Will Repair

Factors relevant to the determination of the reasonableness of the landlord's expectation that the tenant will undertake repairs include the following:

• The length of time that the tenant is in occupancy and the tenant's opportunity to repair defects. Bellikka v. Green, 306 Or 630, 647 n 14, 762 P2d 997 (1988).

• The importance of the landlord's degree of control over and access to the premises, which for residential

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