dissenting.
I respectfully dissent.
The majority seeks to hold a landlord liable for the injuries received by a tenant or his guest due to a condition of the leased premises which allegedly violates municipal housing standards embodied in the local health code. This holding is contrary to the principles of landlord-tenant liability previously enunciated by our courts.
The traditional view of a landlord’s liability for tortious injuries provides that in the absence of covenant, fraud, or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the tenant and other persons lawfully upon the premises. Purcell v. English (1882), 86 Ind. 34; Great Atlantic and Pacific T. Co., Inc. v. Wilson (1980), Ind.App., 408 N.E.2d 144; Hunter v. Cook (1971), 149 Ind.App. 657, 274 N.E.2d 550; Stover v. Fechtman (1966), 140 Ind.App. 62, 222 N.E.2d 281; Walker v. Ellis (1955), 126 Ind.App. 353, 129 N.E.2d 65. The landlord is not liable for personal injuries to a tenant for defective premises unless he expressly agrees to repair and is negligent in doing so. Zimmerman v. Moore (1982), Ind.App., 441 N.E.2d 690; Hunter, supra; Stover, supra. In the case at bar, it is undisputed that the rental agreement between Long and Tardy contained no covenant to repair. Moreover, there were no other written or oral agreements between Long and Tardy concerning repair or maintenance of the premises. Thus, as a matter of law, Long cannot be liable for any alleged failure to repair the premises.
Furthermore, a landlord cannot incur liability for failure to repair a hidden defect, unless the tenant’s injuries caused by the hidden defect are known to the landlord but unknown to the tenant. Zimmerman, supra; Stover, supra. No liability accrues to the landlord where he is without knowledge of the latent defect. Id. Defects which are in plain view are of the type which a lessee is reasonably expected to discover. Stover, supra. It is undisputed that the lack of a handrail, the stairway surface, and the condition of the window were conditions known by Tardy. For this reason alone, the allegedly defective condition of the premises do not fall within the latent defect exception. Further, the evidence establishes that Long was not aware of the condition of the window, and Dawson concedes that the lack of a handrail and the condition of the stairway surface were readily visible. Because the tenant had knowledge of the allegedly defective conditions complained of, because there is no evidence Long was aware of the condition of the window, and because the condition of the stairway was readily visible, there was no duty on Long’s part, and hence no liability, to repair the alleged latent defects in question.
Finally, a landlord has a duty to maintain in safe condition the common stairways and other parts of the building used in common by tenants and business visitors and social guests of a tenant over which the landlord retains control. Slusher v. State (1982), Ind.App., 437 N.E.2d 97, trans. denied; Rossow v. Jones (1980), Ind.App., 404 N.E.2d 12; Coleman v. DeMoss (1969), 144 Ind.App. 408, 246 N.E.2d 483. There has been no allegation, however, that the stairway where Dawson’s aunt fell was a common area over which Long retained control. Thus, there is no basis for extending liability to Long under this rule.
*1271Although health codes have been cited in discussions regarding landlord liability, such has been the case only with regard to actions against landlords for breach of implied warranties of habitability. See Breezewood Management Company v. Maltbie (1980), Ind.App., 411 N.E.2d 670. Health codes have never formed the basis for extending liability under the traditional rules of premises negligence. The majority’s reliance upon local health codes in an attempt to rewrite the rights and liabilities of tenants and landlords is inappropriate. The modification of the common law in this respect is a function more properly performed by our supreme court or the general assembly.
I would vote to affirm the trial court’s entry of summary judgment.