concurring in part and dissenting in part. I concur in Part II of the majority’s opinion which affirms the trial court’s grant of summary judgment in favor of Dover Elevator. For the reasons stated below, however, I dissent from Part I of the opinion which deals with the disposition of appellants’ cause of action against Eighth and Walnut Corp.
The majority of this court has approved the trial court’s grant of summary judgment to the defendant Eighth and Walnut on the grounds that since occupation and control of the rented parking garage were in the hands of the decedent’s employer, the landlord Eighth and Walnut was — as a matter of law — relieved from imposition of tort liability. Although the general rule in Ohio is that the transfer of occupation and control ordinarily relieves a commercial lessor from liability for damages resulting from the condition of the premises, see, e.g., Pitts v. Housing Authority (1953), 160 Ohio St. 129 [51 O.O. 51]; Brown v. Baseball Co. (1952), 158 Ohio St. 1 [47 O.O. 478], this immunity is in no way absolute.2 See, e.g., Shindelbeck v. Moon (1877), 32 Ohio St. 264, cited with approval in Shroades v. Rental Homes, Inc. (1981), 68 Ohio St. 2d 20 [22 O.O.3d 152]. Rather, upon a showing of “special circumstances” landlord liability may be imposed. Shindelbeck, supra, at paragraph three of the syllabus.
Such was the case in Stackhouse v. Close (1911), 83 Ohio St. 339, in which this court held that even if a landlord delivers property which is free of latent defects, if he knowingly permits a tenant to create an unlawful or dangerous condition, both landlord and tenant liability to a third party is justified under a finding of special circumstances. Certainly there is even more cause to impose liability on a landlord who knowingly delivers property containing a latent defect which itself creates the unlawful and dangerous condition when the landlord could reasonably expect the property to be used without warning to others. Indeed, support for this very proposition may be found in other jurisdictions. See Deutsch v. Max (1935), 318 Pa. 450, 178 A. 481; Standard Oil Co. v. Decell (1936), 175 Miss. 251, 166 So. 379; Barham v. Baca (1969), 80 N.M. 502, 458 P. 2d 228; Smith v. General Apartment Co. (1975), 133 Ga. App. 927, 213 S.E. 2d 74.
In my view, in the present case appellants presented sufficient evidence of special circumstances to warrant submission of the issue of Eighth and Walnut’s liability to the jury.3 The elevator which caused the death of Hendrix was equipped with a faulty door interlock system. Such a condition was in violation of the city safety regulations and ordinances. Affidavits and testimony of city safety inspectors were introduced which made it clear that *211this condition had been in existence — and that Eighth and Walnut had known of these violations — since at least 1974 and probably since 1971. Four of the city’s inspection reports note that “orders [were still] pending” and the condition had not been corrected. The. inspection report of September 1974 specifically alludes to the fact that “new interlocks were required.” This warning was repeated in the inspection report of April 1975, two months before the lease agreement was entered into between Eighth and Walnut and Merrick.
A lessee, under a lease agreement for merely one year, can hardly be expected to be responsible for the major overhaul which would have been necessary to bring the elevator within safety regulations. On the contrary, lessor could reasonably expect and foresee that the lessee would necessarily operate the defective apparatus in the condition in which it was received. The elevator was licensed in the name of Eighth and Walnut Corp. and the lease contained certain restrictions on the repair of the elevator. Eighth and Walnut was aware of the dangerous condition existing at the time of the transfer of possession to Merrick. Indeed, despite the orders pending from the city elevator inspector, lessor had allowed the elevator to continue to operate in a dangerous condition well over a year before this accident occurred.
Defendant Eighth and Walnut has contended throughout the course of this proceeding that no safety violations were present, alleging that the tenant Merrick intentionally altered the door interlocking system. However, in the face of such conflicting testimony as to the good working order of the elevator, the questions of Eighth and Walnut’s awareness of the defective condition and whether such knowledge could constitute special circumstances were questions of fact for jury determination. So too was whether the alleged actions by Merrick constituted an intervening cause or whether Eighth and Walnut should be held concurrently liable. Instead, the majority today holds a commercial lessor virtually immune from suit brought by an innocent third party by holding, as a matter of law, that knowledge of an existing defect — no matter how dangerous — can never be considered as “special circumstances” which would warrant imposition of liability.
Appellants’ position is based on what has been described as the essence of tort law: “It is the party who does the wrong who should be made responsible for the consequences it entails.” Shindelbeck v. Moon, supra, at 269. Accepting this premise and applying it to the facts of the present case, it is entirely consistent with existing Ohio law not only to allow plaintiffs to proceed to trial, but ultimately to find the landlord, Eighth and Walnut, liable.4
*212The evidence in this case, when viewed in the light most favorable to the plaintiffs, shows that the ultimate responsibility for the death of the plaintiffs’ decedent flows directly and uninterruptedly from Eighth and Walnut’s decision to knowingly introduce the defective elevator into the market place under conditions where it ought to have known it would be used in its defective condition and foreseeable injury would result. I can find no justification to warrant precluding plaintiffs from having their day in court. I suggest that when confronted with the evidence in this case, reasonable minds could very well come to differing conclusions as to the culpability of Eighth and Walnut and the existence of the special circumstances. Accordingly, I would reverse the decision of the Court of Appeals which affirmed the trial court’s grant of summary judgment to Eighth and Walnut.
Celebrezze, C.J., and W. Brown, J., concur in the foregoing concurring and dissenting opinion.The provisions of the lease at issue here present an arguable case for the theory that landlord did not even give up control and possession of the elevator in that under the one-year lease, Eighth and Walnut apparently retained the right to permit or prevent repairs to the elevator.
Indeed, any determination of special circumstances would itself be, in most instances, a jury question.
E.g. Shindelbeck v. Moon, supra; Stackhouse v. Close, supra; Brown v. Baseball Co., supra, cited by the majority. See, also, Casey v. Rowill Investment Co. (Ct. App. Lucas Cty. 1972), 64 O.O. 2d 227, in which, as in the case at hand, the transferor of an interest in real property had repeatedly ignored the orders of governmental safety inspectors to repair conditions which were in violation of safety requirements. In Casey, the transferor remained liable to a licensee who was injured as a result of the uncorrected defect.