landlord’s lack of notice of a defect as in the Sikora v. Wenzel, Discussion Question

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Some states have statutes which say that breach of the statute is negligence per se. This means that proof of a statutory violation is conclusive on the issue of an actor’s duty and breach.

But even in some of these jurisdictions, the jury will listen to an “excuse,” such as a landlord’s lack of notice of a defect as in the Sikora v. Wenzel case at 727 N.E. 2d 1277 (Ohio 2000). Here, the second owner of condominium building had no notice that the building’s Certificate of Occupancy was issued without re-inspection, after plans were modified by first owner, to add decks. A deck collapsed and Sikora, a guest, was injured. An engineer concluded that the deck collapsed from improper construction and design, in violation of Ohio Basic Building Code.

***Part A: Discuss whether or not a state’s statutory scheme should ever allow for excuses, such as a lack of notice, to be accepted to avoid a finding of negligence for building code violations, which result in injury.

***Part B: Discuss whether or not states should draft public safety statutes on such topics as electrical fire safety, or use of smoke alarms, or sterilization of needles, or DUI, as strict liability statutes. Strict liability means that negligence is attributed regardless of fault and regardless of excuses.

In the classic T.J. Hooper case at 60 F.2d 737 (2d Cir. 1932) , the court discusses the relevance of “industry custom” in determining negligence. Here, the court held the tugboat TJ Hooper liable for sunken barges, because they did not seek shelter in a storm and were not equipped with radio receivers to receive the weather reports. At that time, there was no industry-wide custom among coastal carriers to equip their tugs with radio receivers. The court discounted this custom and said: “Courts must in the end say what is required; there are precautions so imperative (important) that even their universal disregard will not excuse their omission.” The statute at the time called only for a transmitting radio to call for help, but not a radio receiver to get news.

Discuss whether or not you believe that the court was right in ruling the tugboat “unseaworthy” and thus negligent, for not having radio receivers when it was neither a statute, nor a custom in the industry to have radio receivers.

Can this case be used as precedent for the court to rule a corporation as negligent for not providing or possessing the latest technology, such as car back up cameras and security systems to prevent data breaches?

Do you agree that “The court must in the end say what is required” or should these types of rules be made by the legislature?

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