Landlord and Tenant Law in a Nutshell by David Hill & Carol Necole Brown

Author:David Hill & Carol Necole Brown
Language: eng
Format: epub
ISBN: 9781634603232
Publisher: West Academic
Published: 2018-10-15T00:00:00+00:00

2.Implied Assumption of Risk and Contributory Negligence

Implied assumption of risk and contributory negligence, separate and distinct defenses of the landlord, often overlap and a great many courts fail to clearly distinguish between the two, or simply confuse them. Traditionally, the defense of implied assumption of risk arises in situations where the plaintiff (usually the tenant, the tenant’s family, guests, or invitees) has knowledge of the danger and voluntarily encounters it. Contributory negligence arises in situations where the plaintiff’s conduct falls below that of the reasonable person with regard to: (i) discovering the risk, (ii) the manner in which the risk is encountered, or (iii) encountering the risk 206

when it is clearly unreasonable in relation to the benefit attempted to be obtained by the plaintiff.

In most jurisdictions, both defenses are available to the landlord in an action for damages arising out of the defective condition of the leased property. Where successfully raised, the defenses are usually a complete bar to recovery by the plaintiff. Anderson v. Ceccardi, 451 N.E.2d 780, 783 (Ohio 1983).

A number of jurisdictions have adopted the comparative negligence theory. In these jurisdictions that have shifted from contributory to comparative negligence, the plaintiff’s negligence reduces the amount the plaintiff may recover but does not automatically act as a total bar to recovery by the plaintiff. Generally Arthur Best, Impediments to Reasonable Tort Reform: Lessons from the Adoption of Comparative Negligence, 40 Ind. L. Rev. 1 (2007).

In addition, a few comparative negligence jurisdictions have held that assumption of risk merely reduces the amount that the plaintiff may recover, rather than acting as a complete bar to recovery. Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977). Other jurisdictions have held that implied assumption of risk is abolished on the ground that it no longer serves a useful purpose. The argument is that where the plaintiff knows of the risk and reasonably assumes it, the landlord owes no duty of care to the plaintiff, or, if there is such a duty, no breach of duty has occurred. Alternatively, the plaintiff is contributorily negligent if he knows of the danger and unreasonably encounters it. Generally Effect of Adoption of Comparative Negligence Rules 207

on Assumption of Risk, 16 A.L.R.4th 700 (Originally published in 1982).

When the plaintiff’s action is based upon the landlord’s violation of a statutory duty to repair, the landlord will usually be permitted to raise the defenses of implied assumption of risk and contributory negligence. 2 Premise Liability 3d § 41:10 (2016 ed.). Since it is against public policy to permit a person to waive statutory rights, an express assumption of risk of harm from the landlord’s violation of a statutory duty to repair would be invalid. However, the law also expects a tenant to exercise reasonable care in looking out for the tenant’s own safety and it is on this ground that most courts hold that the defenses of implied assumption of risk and contributory negligence may be raised by the landlord. An exception to this general rule is made for

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