Concurring
I concur in the judgment overruling appellant's assignments of error and affirming the entry of summary judgment in favor of appellee, but write separately to add the following.
In Ohio, the commercial lessor's liability is governed by traditional common law principles. Hendrix v. Eighth and Walnut Corp. (1982), 1 Ohio St. 3d 205, 207. Under Ohio common law, in an action for breach of a landlord's contract to make repairs, a lessee-tenant cannot recover damages for personal injuries. Cooper v. Roose (1949), 151 Ohio St. 316, paragraph four of the syllabus. Moreover, the landlord is not liable in tort for personal injuries allegedly caused by the landlord's breach of a contract to make repairs where the landlord has not retained control of the premises. See Hendrix, supra at 207; Cooper, supra at paragraph three of the syllabus.
Pursuant to the holding of the Ohio Supreme Court in Cooper, appellant's argument on appeal must necessarily fail. It is axiomatic that the syllabus of an opinion issued by the Ohio Supreme Court states the law of the casa Smith v. Klem (1983), 6 Ohio St. 3d 16, 18; DeLozier v. Sommer (1974), 38 Ohio St. 2d 268, 271. As such, all lower courts in this state, including our own, are bound to adhere to the principles set forth therein. Smith, supra at 18; Merrick v. Ditzler (1915), 91 Ohio St. 256, 264. Finally, this court is not authorized to disregard the language of the syllabi in Ohio Supreme Court cases on the basis that the language appears to be obiter dictum. Smith, supra at 18. However, although we are thereby constrained in our review of the issues, I am persuaded that the "two fold" rationale set forth in the majority opinion for the Cooper holding is antiquated and arguably erroneous. Indeed, contrary to the applicable Ohio law on this subject, the modern trend is toward holding that a lessor's breach of his agreement to repair, constitutes a ground for holding him liable for personal injury to his tenant, or one in privity with the latter, if the failure to repair was a contributing cause of the injury. Annotation, Breach of Lessor’s Agreement as Ground of Liability for Personal Injury to Tenant or One in Privity with Latter (1961), 78 ALR 2d 1238, 1252, Section 4(a); see Putnam v. Stout (N.Y. 1976), 345 N.E. 2d 319, where the Court of Ap*67peals of New York held that a lessor of a supermarket was liable for a supermarket customer's personal injuries. In Putnam, the customerfell in a driveway adjoining the supermarket when her shoe became caught in a hole, while she was a business invitee. The lessor had covenanted to keep the driveway in repair but failed to do so. See also Berness v. Regency Square Associates, Ltd. (Ala. 1987), 514 So. 2d 1346 and All v. Smith's Management Corp. (Idaho 1985), 708 P.2d 884; Mobil Oil Corp. v. Thorn (1977), 401 Mich. 306.
Furthermore, the American Law Institute has chosen not to follow Ohio's outdated view on this topic in adopting Section 357 of Restatement of the Law, Torts 2d (1965), which provides as follows:
"A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
"(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
"(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented, and
"(c) the lessor fails to exercise reasonable care to perform his contract."
The majority opinion points out the reasoning behind the Cooper holding, which precludes recovery, is that damages for personal injuries "are not a natural and probable consequence of breaching a covenant to repair," that these damages would not have been in "the contemplation of both parties at the time they mad the contract," and, therefore, if appellant was suing for its own personal injuries, "clearly there could be no recovery." However, this so-called logic strains the limits of common sense Conversely, the modern position, i.e. that adopted in the Restatement provision, is supported by several factors, including:
"1. The lessor's contractual undertaking for consideration, to repair the premises or to keep them in repair.
"2. The special relation between the parties, and the peculiar likelihood that the lessee will rely upon the lessor to make the repairs, and so will be induced to forego efforts which he would otherwise make to remedy conditions dangerous to himself and to others who enter the land with his consent.
"3. The fact that the lessor retains a reversionary interest in the lands, and so by his contract may properly be regarded as retaining or resuming the duty and responsibility of keeping his own premises in a safe condition, to the extent of his undertaking" Comment b to Restatement of the Law, Torts 2d (1965), Section 357.
In the instant case, the parties to this appeal entered into a lease agreement effective on the date of plaintiff Hazel Fields' accident, whereby appellee covenanted to repair the premises, including the parking lot. An affidavit of Charles Sturgill, a co-manager of appellant's Ironton, Ohio store, that was attached to appellant's memorandum in opposition to appellee's motion for summary judgment noted that appellee had been requested repeatedly to repair potholes in the parking lot prior to the date of the accident, but failed to do so. Pursuant to the weight of modern authority on this issue, as well as the position adopted by the Restatement, I am persuaded that whether or not appellant's claim for relief is designated as one sounding in contract or in tort, it would have been preferable to have denied appellee's summary judgment motion. However, in that we must adhere to the syllabi of Cooper, supra, I reluctantly concur in the judgment of affirmance.1
I would urge a re-examination of the Cooper holding hy the Supreme Court of Ohio in light of the modem trend and the Restatement provision. The two justifications given hy the majority opinion to follow Cooper are:
(1) if not followed, it would allow a lessee-tenant to bypass the tort law concerning possession and control with a breach of contract action; and
(2) personal injuries caused by a breach of a covenant to repair are not reasonably within the contemplation of the parties at the time of the contract. With respect to the first justification, I am persuaded that a lessor should have liability in tort in these situations; I am also persuaded that a lessee-tenant should not be per se precluded from recovery for personal injuries resulting from a lessor's breach of a covenant to repair. As to the second justification, it seems inherently logical to presume that a lessor's breach of a covenant to repair property defects, particularly after notice from a lessee-tenant, might reasonably cause personal injuries to customers of the lessee-tenant, and that these would be within the parties' contemplation at the time of contract. To hold otherwise, as the majority does, ignores basic precepts of both contract and tort law.
*68Accordingly, where the justifications for a judicial rule are no longer apparent, the rule itself is no longer entitled to continued viability. See, e.g. Kirchner v. Crystal (1984), 15 Ohio St. 3d 326.
I also acknowledge that the position set forth in the Restatement results in a blending of tort and contract law in that the duty of repair is founded upon a contract. However, such a blending of legal doctrines is neither unique nor unworkable One need look no further thanproducts liability, an area in which Ohio jurisprudence is at the forefront, to find an example of efforts by modem courts to adjust remedies to the reality of modem life. In short, I do not believe that the law in Ohio should be that a commercial lessor who promises to repair the leased premises, but fails to do so after notice, is liable for damage to the lessee's truck that breaks an axle in a pothole, while he maintains immunity fiom a suit by a business invitee who breaks a leg in the same dangerous obstruction.