dissenting:
Generally, where a portion of the premises is reserved for common use and is under the landlord’s control, a duty is imposed upon him to use ordinary care to keep such a portion of the premises in a reasonably safe condition. Loveless v. Warner, 37 Ill.App.2d 204.
Although in the present case the portion of the premises being used by plaintiff when she was injured was not reserved for the common use of all tenants, I can find no basis for relieving a landlord of his duty to keep such premises in a reasonably safe condition where he retains control of the unleased portion of the premises and permits or invites its use to fewer than all the tenants, either expressly or impliedly from cutomary use, provided the premises are being used in the customary manner when the injury occurs. I find support for this position in 2 Restatement, Torts 2d, Section 360, which provides:
“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessors control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”
See also 32 Am. Jur., Landlord and also Rosmo v. Amherst Holding Co., 50 N.W.2d 698.
The evidence shows and the defendant does not dispute that she had retained control of the roof and fence used by the plaintiff on the day she was injured. Plaintiff had been going onto the roof periodically to wash her windows since before defendant bought the building in 1945. I believe that under these circumstances defendant owed plaintiff a duty of ordinary care to keep the roof in a reasonably safe condition. Whether defendant breached this duty by failing to provide safer access to the tarred portion of the roof was a question for the jury.
I would affirm the judgment of the trial court.