 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Coulter Property Management Inc. v. James12/17/1998
rative fault statutes supported reexamination of prior decision rejecting failure to wear safety belt as defense). As we explain below, such a circumstance is present in this case.
This court has paraphrased section 358 as follows:
" landlord is liable if he fails to disclose to his lessee any condition which involves an unreasonable risk of harm if (a) the lessee has no reason to know of the condition or risk and (b) the lessor has reason to know of the condition and should realize the risk involved and has reason to expect that the lessee will not discover the condition or realize the risk." Richards v. Dahl, 289 Or 747, 749, 618 P2d 418 (1980) (emphasis added).
The court first generally acknowledged section 358 and its counterparts in 1968, shortly after the American Law Institute adopted the Restatement (Second) of Torts. See Macomber v. Cox, 249 Or 61, 69-70, 435 P2d 462 (1968) ("The rules applicable to the lessor-lessee relationship are stated in the Restatement (Second) of Torts, §§ 356-62 (1965)."); id. at 70 n 9 (citing and quoting section 358).
As Macomber indicates, section 358 does not exist in isolation. Instead, it states one of several "exceptions" to what the Bellikka court described as the "rule of immunity" set out in section 356 of the Restatement. 306 Or at 643. Section 356 provides:
"Except as stated in §§ 357-362, a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession."
That rule, which also is known as "caveat lessee," is grounded on the following rationale:
"When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the land for the term of the lease. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the liabilities of one in possession, both to those who enter the land and those outside of it." Restatement (Second) of Torts, § 356, comment a (1965).
This court has not adopted the rule stated in section 356 as the law in Oregon. In Jensen v. Meyers, 250 Or 360, 363, 441 P2d 604 (1968), this court rejected section 356, stating: "The property concept standing alone is not a satisfactory explanation for immunizing the lessor from liability." In articulating a different standard, the Jensen court noted that the exceptions to section 356, sections 357-362, recognized that tenants likely will not remedy hazards created by a lessor and that "the lessor is made liable upon the well accepted principle that one is liable for reasonably foreseeable harms." 250 Or at 363. The court concluded:
"But this is not to say that the lessor should be liable in every case where a dangerous condition exists at the time of leasing the premises. As one court has expressed it, '* * * the 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 to safeguard persons entering them at his invitation.'" Id. at 363-64 (ellipsis in original).
In Bellikka, this court reaffirmed the standard set out in Jensen as "a sound premise for determining liability to 'others on the property' of leased premises." 306 Or at 647. However, the court expressly limited that decision "to a Discussion of the proper basis of potential liability for landowners with respect to visitors who are on the property at the invitation of the tenant." Id. at 640. Unlike section 356, this court has approved section 358 as a statement of Oregon common law. See Lapp v. Rogers, 265 Or 586, 588, 5
Page 1 2 3 4 5 6 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|