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Albright v. University of Toledo9/18/2001
the "traditional view" of the "decided majority" weighed against imposing a duty to warn or otherwise protect tenants from dangers of traffic on adjacent streets over which the landlord has no right of possession, management, or control. Id. at 256. Further, the court in Guerrero specifically declined to squarely address or categorically rule upon the issue of whether a landlord has a duty to protect or warn tenants about dangers occurring on land adjacent to the landlord's premises, instead deciding the matter upon procedural grounds. Id. Also, the present case concerns the duty between a business owner and a business invitee, while Guerrero found that the duty imposed upon the apartment-complex owner could potentially be affected by the special landlord/tenant relationship, the landlord's status as a public corporation, and the landlord's specific statutory mandates. We believe these distinguishing factors render the applicability of Guerrero to the present circumstances dubious.
Appellants do cite relevant cases from California, Arizona, and Montana for the proposition that a landlord's duty of care includes a duty to avoid exposing persons to risks of injury that occur offsite if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite. See Barnes v. Black (1999), 71 Cal.App.4th 1473 (duty owed to young boy who was "ejected" from landlord's premises when he careened down a steep driveway after he lost control of his "Big Wheel" and entered a busy street at a point where apartment owner had specific knowledge that resident young children were known to ride wheeled toys); Udy v. Calvary Corp. (1989), 162 Ariz. 7 (duty owed to seven-year-old boy injured when he chased a ball from landlord's property into a public street after landlord had repeatedly refused to allow parents to erect a fence in front of the street to protect children); Limberhand v. Big Ditch Co. (1985), 218 Mont. 132 (duty to construct a fence or barricade to protect an eighteen-month-old boy who wandered from landlord's apartment complex and drowned in an adjoining, off-premises irrigation ditch). However, given the holdings of the above-cited Ohio cases, particularly the conclusions reached by the Ohio Supreme Court, and the lack of any Ohio case law cited by appellants to support their proposition with regard to the university's duty, we feel compelled to follow Ohio precedent.
We also note that, contrary to several of the cases cited by appellants, the Ohio Supreme Court has specifically found that an Ohio landowner is under no general duty to erect fencing or provide warnings on their land so as to deter others from entering neighboring property on which exists a dangerous condition not caused or maintained by the landowner and over which the landowner has no control. See McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244 (no duty for adjacent landowner to fence property merely because it is located next to a railroad; court will not extend duty beyond territorial limits of defendant's property; and moving train is obvious danger to four-year-old plaintiff). The court in McKinney also specifically stated that no common-law provision or Ohio statute imposes a duty on a landlord to fence property to protect tenants from traffic on adjacent public streets or roads. Id. at 249.
In addition, the cases cited by appellants are also otherwise factually distinguishable, as they deal with situations where a duty was found for a landlord to protect young children who were "ejected" into a roadway or wandered into an area accidentally. In the present case, Matthew was not a young child, was not "ejected" into the roadway, and did not wander in
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