Court of Appeal of the State of California
Fourth District, Division Three

Wawanesa Mutual Insurance Company, Plaintiff and Respondent, v. Paul E. Matlock et al., Defendants and Appellants.

60 Cal.App.4th 583  December 30, 1997

No. G019652

[**513] Callahan, McCune & Willis and Peter M. Callahan for Defendants and Appellants.

Suppa, Highnote, and Lee and Teresa Trucchi for Plaintiff and Respondent.

[*585] SILLS, P. J.

Why is it, Dean Prosser once asked, that "'so many of us'" feel that the famous Palsgraf case was "'correctly decided, and that Mrs. Palsgraf should not recover?'" (See People v. Roberts (1992) 2 Cal.4th 271, 319 [6 Cal.Rptr.2d 276, 826 P.2d 274], quoting Prosser, Palsgraf Revisited (1953) 52 Mich. L.Rev. 1, 27.) Is it not that what happened was "'too preposterous . . . [t]he combination of events and circumstances necessary to injure [**514] her . . . too improbable?'" (Ibid.) The present appeal is not exactly Palsgraf all over again, but there is enough of a family resemblance to warrant a reversal of a judgment in favor of the plaintiff.

I

Timothy Matlock, age seventeen, bought two packs of cigarettes from a gas station one day in April 1993. Tim gave one of the packs to his friend, Eric Erdley, age fifteen. Smoking as they walked, the two trespassed onto a private storage facility in Huntington Beach, where a couple of hundred telephone poles were stacked up high upon the ground, held in place by two vertical poles sticking out of the ground. The two had climbed on the logs many times before.

Timothy and Eric were joined by 2 younger boys, about 10 or 11 years old, who walked with them on the logs. Eric was smoking a cigarette held in his left hand. Timothy began to tease the younger boys, telling them the logs were going to fall. The boys started to run, though perhaps more out of laughter than of fear. One of the younger boys ran right into Eric's left arm. Eric dropped his cigarette down between the logs, where it landed on a bed of sand. For about 20 seconds Eric tried to retrieve the cigarette, but he couldn't reach it. He stood up and tried to extinguish it by spitting on it, and again was unsuccessful.

Then Eric caught up with Timothy, who was about 10 feet ahead. They went into some bunkers about 50 feet away; when they came out again after about 20 minutes, they saw flames at the base of the logs. They were seen running from the location.

[*586] The Woodman Pole Company suffered considerable property damage because of the fire. Eric was insured under a $100,000 policy with plaintiff Wawanesa Mutual Insurance Company. Wawanesa paid $89,000 to Woodman, $10,000 to the Orange County Fire Department, and $1,000 to the Huntington Beach Fire Department. Wawanesa, now subrogated to Eric's rights, filed this suit against Timothy and his father Paul E. Matlock for contribution.

After a bench trial, the court awarded the insurer $44,500 against Timothy and Paul, which included $25,000 against Paul based on a statute which fixes liability on a custodial parent for the willful misconduct of a minor. (See Civ. Code, § 1714.1, subd. (a).) The trial judge said that while "several theories for recovery" were "articulated" against the defendants, specifically "conspiracy, trespass, negligence per se and joint enterprise/acting in concert," the theory of recovery was "not important, as all would result in result in joint and several liability." The judge stated that the statute that makes it unlawful to give cigarettes to minors, Penal Code section 308, had to have been enacted in 1891 with "more than health concerns" in mind, "since the health issues on tobacco are of considerably more recent concern." 1

Timothy and his father Paul now appeal, arguing that there is no basis on which to hold Timothy liable for the damage caused when Eric dropped the cigarette.

We agree. There is no valid basis on which to hold Timothy liable.

II

Negligence Per Se 2

Just because a statute has been violated does not mean that the violator is necessarily liable for any damage that might be ultimately traced back to the violation. As the court stated in Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 902-903 [93 Cal.Rptr. 530]: "The doctrine of negligence per se does not apply even though a statute has been violated if the plaintiff [*587] was not in the class of persons designed to be protected or [**515] the type of harm which occurred was not one which the statute was designed to prevent." Mere "but for" causation, as is urged in Wawanesa's brief, is simply not enough. The statute must be designed to protect against the kind of harm which occurred.

The statute that makes it illegal to furnish tobacco to minors, Penal Code section 308, has nothing to do with fire suppression. As it now stands, it is intended to prevent early addiction to tobacco. It may be true, as the trial court opined, that when the first version of the statute was enacted in 1891 (see Stats. 1891, ch. 70, § 1, p. 64) it was not directed primarily at protecting minors' health. 3 But it is most certainly a health statute as it exists today. As our Supreme Court recently noted in Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1060 [31 Cal.Rptr.2d 358, 875 P.2d 73] (quoting from an affirmed decision of the Court of Appeal), section 308 "'reflects a statutory policy of protecting minors from addiction to cigarettes.'" The connection of section 308 with health is emphasized by the court's specifically analogizing section 308 to former Health and Safety Code section 25967, which states that preventing children from "'"beginning to use tobacco products"'" is "'"among the highest priorities in disease prevention for the State of California."'" (Mangini,  supra , 7 Cal.4th at pp. 1061-1062, italics added [quoting from appellate opinion quoting statute].)

Nothing suggests that section 308 is part of any scheme to prevent fires. Its placement in the general morals section of the Penal Code belies such an intent.

[*588] Ordinary Negligence

Nor will ordinary negligence serve as a basis for liability based on the "but for" relationship between Timothy's wrongful act and what ultimately transpired. The rule in negligence law is that the harm must be sufficiently likely to arise from a given act before it may be foreseeable in the legal sense. (Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 996 [34 Cal.Rptr.2d 171].) Or, to put the same idea in more traditional tort terms: "'The risk reasonably to be perceived defines the duty to be obeyed.'" (Dillon v. Legg (1968) 68 Cal.2d 728, 739 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], quoting Palsgraf v. Long Island R. R. Co. (1928) 248 N.Y. 339, 344 [162 N.E. 99, 59 A.L.R. 1253].)

Foreseeability, as our Supreme Court noted in Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 241, footnote 9 [60 Cal.Rptr. 510, 430 P.2d 68], is often involved in the determination of both duty and proximate cause. Courts must "approach the problem as one of determining the nature of the duty and the scope of the risk of the negligent conduct." (Id. at p. 241.) More specifically, when an injury is the product of the intervening act of a third person, the test is whether the particular manner in which the third person acted is one of the hazards that makes an actor negligent. (Id. at pp. 241-242, citing Brousseau v. Carnation Co. (1955) 137 Cal.App.2d 570, 573 [290 P.2d 588].)

In the present case, the concatenation between Timothy's initial act of giving Eric a [**516] packet of cigarettes and the later fire is simply too attenuated to show the fire was reasonably within the scope of the risk created by the initial act. (See Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103 [286 Cal.Rptr. 85] [child born prematurely because of lumbo-peritoneal shunt in mother's womb could not recover from defendant who had caused the auto accident prior to conception which required the mother to be fitted with shunt].) We need only quote one extraordinarily long sentence from Wawanesa's own respondent's brief to show the Rube Goldbergesque system of fortuitous linkages necessary to get from A (giving the packet of cigarettes to Eric) to B (the damage caused by the fire):

"'But-for' Timothy Matlock's illegal act (see Penal Code § 308) of procuring tobacco for minor Eric Erdley (who was unable to purchase the cigarettes himself), and 'but-for' Timothy Matlock's participation as a co-conspirator (see Baji Numbers 13.85 and 13.86) in an agreement to trespass to smoke these cigarettes with Eric Erdley on Wood-Man Pole Company land, and 'but-for' Timothy Matlock's act of causing the younger children to rush off of the wood pile (because of Timothy Matlock's acts of [*589] jumping on the logs), Eric Erdley would not have been on top of the Wood-Man Pole Company telephone poles smoking a cigarette at the time that he was bumped by the younger children and dropped the lit cigarette which started the fire [citation]."

The sentence contains no fewer than three "but-for's." In the chain, the cigarette is far less important than the jostling. Yet fires are not within the risks one foreseeably incurs by teasing youngsters, even youngsters in the general vicinity of someone smoking a cigarette. It can hardly be reasonably contended that by teasing two youngsters walking on some telephone poles, one can foresee:

(a) that they will try to get off those telephone poles,

(b) and in the process of getting off bump into someone holding a cigarette,

(c) who then drops the cigarette,

(d) in a space between the wood poles, which

(e) happens to be inaccessible, so that about 20 minutes later,

(f) there is a conflagration.

There is still simply too much fortuity in the chain.

Someone who gives someone else a cigarette--even if the act of giving is itself unlawful by virtue of the receiver's age--hardly can become an insurer of any property which the cigarette may by some happenstance ignite. There must be some reason to conclude that the act of giving the cigarette creates a fire hazard. Here, however, Wawanesa points to nothing, other than Eric's age. Eric's age, however, had nothing to do with the actual fire. A 50-year-old could just as easily have dropped a cigarette if bumped.

Conspiracy, Joint Venture, and Trespass

Wawanesa mentions nothing in the record to indicate that Eric and Timothy ever had any joint intent whatsoever to start a fire when they went onto the property of the Woodman Pole Company. The most that can be said is that Timothy knew Eric would light up a cigarette. Yet to make everyone who knows that his or her friend is going to smoke a cigarette liable for any fires started if the friend is jostled and drops that cigarette would be an unreasonable extension of tort liability. If Eric and Timothy were in their 50's, there would not even be the slightest doubt that Timothy could not be [*590] responsible for the fire just because he knew his friend was going to smoke. 4 The idea that there was some sort of "conspiracy" here is a gross overstatement of what common sense reveals really went on: Two teenagers went onto private land, one was jostled, dropped his cigarette, and a fire started. One may slap the legal label of "conspiracy" or "joint venture" on that scenario, but only unconvincingly: An agreement to start a fire [**517] is conspicuously lacking. Because there was no agreement to start a fire, there was no conspiracy, much less a joint venture.

As to trespass, Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770 [18 Cal.Rptr.2d 574], relied on by Wawanesa, is inapposite. That case does not stand for the proposition, and we are unaware of any legal authority which does, that by merely trespassing on property one necessarily becomes liable for all damage that can be linked to a fellow trespasser. Under the classic criminal law formulation for conspiracies, "reasonable and probable consequences of the common unlawful design" (e.g., 1 Witkin and Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 181, p. 202), this fire was not the probable consequence of the trespass. (See People v. Roberts,  supra , 2 Cal.4th 271, 319 ["The criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act."].) The link between Timothy's trespass and the fire is even weaker than the link between the fire and his giving cigarettes to Eric or his teasing of the younger boys.

III

Because there is no basis on which to hold Timothy liable we need not address the liability of his father. The judgment is reversed with directions to enter a new judgment in favor of Timothy and Paul Matlock. The Matlocks are to recover their costs on appeal.

Wallin, J., and Rylaarsdam, J., concurred.

Respondent's petition for review by the Supreme Court was denied March 25, 1998.

fn 1 All references to section 308 are to the Penal Code.

fn 2 The question of whether section 308 affords a private right of action based on the unfair competition laws is now pending before the Supreme Court in Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (Cal.App.). For purposes of the present case, we will assume, without deciding, that Wawanesa has standing to raise the violation of section 308 as a basis on which to predicate a negligence per se claim. (See Evid. Code, § 669, subd. (a)(1) ["The failure of a person to exercise due care is presumed if: [¶] . . . He violated a statute . . . ."].)

fn 3 Which raises the question--why was it originally enacted? The trial judge may have been a little hasty in concluding that health was not the reason behind the 1891 statute. The noxiousness of tobacco was known long before 1891. Back in 1604 James I called it a custom "dangerous to the lungs" in his Counterblaste to Tobacco. By 1630 (give or take a few years), Sultan Murad IV tried to ban the use of tobacco. He failed. For their part, the Puritans of the Massachusetts Bay Colony tried to prohibit smoking about the same time as Murad. They failed as well.

Assuming, for sake of argument, that the Legislature did not have minors' health at heart when it prohibited giving tobacco to them in 1891, the placement of section 308 in chapter 7 of title 9 of the Penal Code, dealing with crimes against religion, conscience and "good morals," furnishes another answer. While we do not have the legislative history from 1891, it appears the statute was most probably enacted to protect minors from the general licentiousness associated with the consumption of cigarettes in the 1890's. (These days--though we recognize that there is altogether too much teenage tobacco smoking--cigarettes tend to be associated more with the World War II generation than with cheesy dens of iniquity.) However, we have found nothing, and certainly Wawanesa has cited us to nothing, which would show that section 308 was ever enacted out of some concern that minors with cigarettes would pose a fire hazard.

fn 4 Wawanesa asserts that the trial judge found both teenagers "intended to commit the wrongful act (i.e., illegally smoking and trespassing)," thereby concluding that it did not make any difference who started the fire. The formulation is too hazy. Both boys intended to smoke and to trespass. Neither intended to start a fire.

 Table of Cases  
People v. Roberts (1992) 2 Cal.4th 271, 319 [6 Cal.Rptr.2d 276, 826 P.2d 274]
Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 902-903 [93 Cal.Rptr. 530]
Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1060 [31 Cal.Rptr.2d 358, 875 P.2d 73]
Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 996 [34 Cal.Rptr.2d 171]
Dillon v. Legg (1968) 68 Cal.2d 728, 739 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]
Palsgraf v. Long Island R. R. Co. (1928) 248 N.Y. 339, 344 [162 N.E. 99, 59 A.L.R. 1253]
Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 241, footnote 9 [60 Cal.Rptr. 510, 430 P.2d 68]
Brousseau v. Carnation Co. (1955) 137 Cal.App.2d 570, 573 [290 P.2d 588]
Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103 [286 Cal.Rptr. 85]
Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770 [18 Cal.Rptr.2d 574]

Sikora, Appellee, v. Wenzel, Appellant, et al.

 
Supreme Court of Ohio

727 NE 2d 1277 (2000)

Submitted March 7, 2000

Decided May 24, 2000

A landlord's violation of the duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence per se, but a landlord will be excused from liability under either section if he neither knew nor should have known of the factual circumstances that caused the violation. (Shroades v. Rental Homes, Inc. [1981], 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774, clarified.)

CERTIFIED by and APPEAL from Court of Appeals for Greene County, No. 98-CA-130.

In September 1996, a deck attached to a condominium owned by Tom Wenzel collapsed during a party held by one of Wenzel's tenants. Aaron Sikora, one of the guests at the party, was injured as a result of the collapse and brought the instant negligence action. After the incident, an engineering firm hired by the city of Fairborn (the "City") concluded that the deck's collapse resulted from [*494] improper construction and design in violation of the Ohio Basic Building Code (the "OBBC").

A decade earlier, before the deck was built, Zink Road Manor Investment ("Zink") owned and was developing the property where the condominium was located as a series of condominiums. After Zink submitted plans for the condominiums to the City, Zink decided to modify the units to include decks. Documents containing the deck design were given to the City for review at a meeting between [**1279] the construction company and the City. The City, however, rejected these plans because they violated the OBBC and contained insufficient information. Although the City made no further inspection of the decks during construction nor received from Zink any modified plans or other documents sufficient for it to proceed with approval, the City nevertheless issued Zink a Certificate of Occupancy.

After the City issued the certificate, Wenzel purchased the property at issue from Zink. It is undisputed that Wenzel had no knowledge, either actual or constructive, as to any defect in the deck that was attached to the condominium. The parties also agree that Wenzel was in no way involved in the discussions concerning the deck between the City, the general contractor, or the subcontractors, and that he lacked any privity of contract with these entities.

Following the deck's collapse, Sikora sued Wenzel, the contractor, and the design company, alleging that each was negligent and therefore jointly and severally liable. Sikora based his claim against Wenzel in part upon a violation of R.C. 5321.04(A)(1), which requires landlords to comply with all applicable provisions of the OBBC. The trial court granted summary judgment in Wenzel's favor on the basis that he lacked notice of the defect in the deck.

Sikora appealed the trial court's decision to the Second District Court of Appeals, which reversed and remanded the decision below. In so doing, the court of appeals rejected the application of this court's decision in Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774. In Shroades, this court paired the concepts of negligence per se with the requirement of notice of the defective condition for landlord liability under R.C. 5321.04(A)(2). The court of appeals disagreed with the Shroades notice requirement, and reasoned therefrom that Wenzel could be held strictly liable for the collapse of the deck under R.C. 5321.04(A)(1). The court of appeals also concluded that its judgment conflicted with judgments of other appellate districts that have applied this court's reasoning in Shroades in factually similar cases.

Case Nos. 99-1301 and 99-1323 have been consolidated and are before this court upon our determination that a conflict exists, and upon the allowance of a discretionary appeal.

Dyer, Garofalo, Mann & Schultz and Douglas A. Hess, for appellee.

Young & Alexander Co., L.P.A., Mark R. Chilson, Jill S. Patterson and Allison D. Michael, for appellant.

Buckingham, Doolittle & Burroughs, L.L.P., and Jacqueline Marks Dossi, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

Havens Willis L.L.C., William L. Willis, Jr., and Michael J. Sikora III, urging reversal for amicus curiae Ohio Apartment Association.

[*495] COOK, J.

With this decision we confirm that the doctrine of negligence per se countenances lack of notice of a defective condition as a legal excuse. We reverse the appellate court's determination that notice is irrelevant and strict liability applies, and instead hold that a violation of R.C. 5321.04(A)(1) (failing to comply with the Ohio Basic Building Code) constitutes negligence per se, but that such liability may be excused by a landlord's lack of actual or constructive notice of the defective condition.

In Shroades v. Rental Homes, Inc.,  supra , this court set forth the broad principle that landlords are subject to tort liability for violations of R.C. 5321.04. Shroades, syllabus. Having decided that issue, the court concluded that a landlord's failure to make repairs as required by R.C. 5321.04(A)(2) constitutes negligence per se, but that a landlord's notice of the condition [**1280] causing the violation is a prerequisite to liability. The court of appeals here declined to apply this conclusion from Shroades to the instant violation of R.C. 5321.04(A)(1). The appellate court reasoned that no justification exists for the imposition of a notice requirement in a negligence per se context, and therefore held Wenzel strictly liable without regard to his lack of notice of the defect.

Negligence per se and strict liability, however, are not synonymous. Courts view the evidentiary value of the violation of statutes imposed for publ as creating strict liability, as giving rise to negligence per se, or as simply evidence of negligence. See, generally, Browder, The Taming of a Duty--The Tort Liability of Landlords (1982), 81 Mich.L.Rev. 99. These are three separate principles with unique effects upon a plaintiff's burden of proof and to which the concept of notice may or may not be relevant.

Strict liability is also termed "liability without fault." Black's Law Dictionary (7 Ed.1999) 926. Thus, where a statute is interpreted as imposing strict liability, the defendant will be deemed liable per se--that is, no defenses or excuses, including lack of notice, are applicable. See 57A American Jurisprudence 2d (1989) 76-77, Negligence, Section 19. Areas where the law typically imposes strict liability include liability for injuries inflicted from a dangerous instrumentality, [*496] liability for violations of certain statutes, and liability for injuries caused by a manufacturer, distributor, or vendor of certain products. Id.

Courts generally agree that violation of a statute will not preclude defenses and excuses--i.e., strict liability--unless the statute clearly contemplates such a result. See, e.g., Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 617 N.E.2d 1075 ; see, also, Gore v. People's Savings Bank (1995), 235 Conn. 360, 377-378, 665 A.2d 1341, 1349 . Notably, most courts refuse to impose strict liability in the context of landlord liability for defective conditions, recognizing the need for some kind of notice element prior to the imposition of liability. See Browder, supra , at 136.

More frequently, then, this sort of statutory violation either will be considered as evidence of negligence or will support a finding of negligence per se. As this court has consistently held, the distinction between the two depends upon the degree of specificity with which the particular duty is stated in the statute. See, e.g., Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440 , paragraph three of the syllabus.

Where a statute contains a general, abstract description of a duty, a plaintiff proving that a defendant violated the statute must nevertheless prove each of the elements of negligence in order to prevail. See id. Thus, proof will be necessary that the defendant failed to act as a reasonably prudent person under like circumstances, to which the defendant's lack of notice of a defective condition may be a relevant consideration. Id. ; see, also, Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 271, 274 ; Gore,  supra , 235 Conn. at 373, 665 A.2d at 1347.

But where a statute sets forth "'a positive and definite standard of care * * * whereby a jury may determine whether there has been a violation thereof by finding a single issue of fact,'" a violation of that statute constitutes negligence per se  . Chambers v. St. Mary's School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198, 201 , quoting Eisenhuth v. Moneyhon,  supra , 161 Ohio St. at 374-375, 53 O.O. at 278, 119 N.E.2d at 444. In situations where a statutory violation constitutes negligence per se, the plaintiff will be considered to have "conclusively established that the defendant breached the duty that he or she owed to the plaintiff." Chambers,  id. In such instances, the statute "serves as a legislative declaration of the [**1281] standard of care of a reasonably prudent person applicable in negligence actions." Thus the "reasonable person standard is supplanted by a standard of care established by the legislature." 57A American Jurisprudence 2d, supra , at 672, Negligence, Section 748.

Negligence per se, however, is not equivalent to "a finding of liability per se because the plaintiff will also have to prove proximate cause and damages." Chambers,  supra , 82 Ohio St.3d at 565, 697 N.E.2d at 201, citing Pond v. Leslein (1995), 72 Ohio St.3d 50, 53, 647 N.E.2d 477, 479 . [*497] Negligence per se lessens the plaintiff's burden only on the issue of the "actor's departure from the standard of conduct required of a reasonable man." 2 Restatement of the Law 2d, Torts (1965) 38, Section 288B, Comment b. "Such negligence makes the actor subject to liability * * * but it does not necessarily make him liable."  Id.

Furthermore, negligence per se and strict liability differ in that a negligence per se statutory violation may be "excused." As set forth in the Restatement of Torts 2d, supra , at 37, Section 288B(1): "The unexcused violation of a legislative enactment * * * which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself." (Emphasis added.) But "[a]n excused violation of a legislative enactment * * * is not negligence." (Emphasis added.) Restatement of Torts 2d, supra , at 32, Section 288A(1). See, also, Reynolds v. Ohio Div. of Parole & Community Serv. (1984), 14 Ohio St.3d 68, 71, 14 OBR 506, 471 N.E.2d 776, 779, fn. 5, quoting Prosser, Law of Torts (4 Ed.1971) 200-201, Section 36; Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 37, 30 OBR 78, 79, 506 N.E.2d 212, 215 (applying the concept of a legal excuse in the context of motor vehicle operation); Zehe v. Falkner (1971), 26 Ohio St.2d 258, 261, 55 O.O.2d 489, 491, 271 N.E.2d 276, 278 .

Lack of notice is among the legal excuses recognized by other jurisdictions and set forth in the Restatement of Torts 2d. This excuse applies where "the actor neither knows nor should know of any occasion or necessity for action in compliance with the legislation or regulation." Restatement of Torts 2d, supra , at 35, Section 288A(2)(b), Comment f. See, also, Gore v. People's Savings Bank,  supra (applying this excuse in the context of the violation of a statutory obligation upon a landlord). This concept is also specifically recognized in 2 Restatement of the Law 2d, Property, Landlord & Tenant (1977) 261-262, Section 18.3, Comment c, as applicable to landlord liability for failing to remedy a dangerous condition.

It follows, then, that a determination of liability and the relevance of notice under a statute imposed for safety depends first upon which of the above categories the statute occupies. Wenzel urges us to construe the violation of R.C. 5321.04(A)(1) only as evidence of his negligence and therefore to consider his lack of notice as crucial to a determination of the breach of his duty of care. Sikora, in contrast, would have us uphold the appellate court's determination that strict liability applies and that Wenzel's lack of notice is irrelevant.

We reject Sikora's argument that the statute imposes strict liability. R.C. 5321.04(A)(1) requires landlords to "[c]omply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety." Considering the general reluctance among courts to impose strict liability in this context, the wording of the statute fails to convince us that the General Assembly intended to create strict liability upon a violation of this [*498] statutory requirement. Absent language denoting that liability exists without possibility of excuses, we are unpersuaded that the intent behind this statute was to eliminate excuses and impose strict liability.[**1282]

Nor do we agree with Wenzel that the language of that statute is so general or abstract as to constitute merely evidence of negligence. Rather, we believe the statutory requirement is stated with sufficient specificity to impose negligence per se. It is "fixed and absolute, the same under all circumstances and is imposed upon" all landlords. Ornella v. Robertson (1968), 14 Ohio St.2d 144, 150, 43 O.O.2d 246, 249, 237 N.E.2d 140, 143 . Accordingly, we conclude that the statute requires landlords to conform to a particular standard of care, the violation of which constitutes negligence per se  .

Having determined that the statute's violation constitutes negligence per se, we turn now to the question of whether Wenzel's lack of notice of the defect in the deck excuses the violation. Both parties agree that Wenzel neither knew nor had any way of knowing of the defective condition. The City issued the necessary approval documents despite having failed to reinspect the situation. Because Wenzel was not involved at that point, however, he had no reason to question the validity of the City's certification. Thus, no factual circumstances existed that would have prompted or required Wenzel to investigate the process that occurred between the City and the developer prior to his involvement. Given that Wenzel neither knew nor should have known of the condition giving rise to the violation of R.C. 5321.04(A)(1), his violation is excused and he is not liable to Sikora for failing to comply with the OBBC.

We hold, therefore, that a landlord's violation of the duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence per se, but a landlord will be excused from liability under either section if he neither knew nor should have known of the factual circumstances that caused the violation. ( Shroades v. Rental Homes, Inc. [1981], 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774 , clarified.) To the extent that Shroades was ambiguous as to the source and nature of the notice requirement applicable to a violation of a statute imposing negligence per se, we clarify that standard by our decision here.

For the foregoing reasons, the judgment of the court of appeals is reversed.

Judgment reversed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.

RESNICK, J., concurs separately.

DOUGLAS, J., not participating.

[*499] ALICE ROBIE RESNICK, J., concurring.

I write separately simply to make it crystal clear that the law would never require a landlord to be an insurer of the safety of others. In this case, it is agreed that the landlord had no knowledge of the latent defect, and it is basic hornbook law that in the absence of actual or constructive knowledge, a landlord is not liable.

 Table of Cases 
Shroades v. Rental Homes, Inc. [1981], 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774
Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 617 N.E.2d 1075
Gore v. People's Savings Bank (1995), 235 Conn. 360, 377-378, 665 A.2d 1341, 1349
Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440
Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 271, 274
Chambers v. St. Mary's School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198, 201
Pond v. Leslein (1995), 72 Ohio St.3d 50, 53, 647 N.E.2d 477, 479
Reynolds v. Ohio Div. of Parole & Community Serv. (1984), 14 Ohio St.3d 68, 71, 14 OBR 506, 471 N.E.2d 776, 779, fn. 5
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 37, 30 OBR 78, 79, 506 N.E.2d 212, 215
Zehe v. Falkner (1971), 26 Ohio St.2d 258, 261, 55 O.O.2d 489, 491, 271 N.E.2d 276, 278
Ornella v. Robertson (1968), 14 Ohio St.2d 144, 150, 43 O.O.2d 246, 249, 237 N.E.2d 140, 143
Shroades v. Rental Homes, Inc. [1981], 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774