In Smith v. Goshaw (2017AP2008), the Court of Appeals District III held that the defendant was entitled to a new trial because the jury received instructions that erroneously elevated the standard of care landlords must exercise for upkeep of properties.

Plaintiff Nevin Smith was injured when a fire escape collapsed while he was standing on it. Smith filed the instant negligence action against his landlord Dale Goshaw. At trial, the circuit court accepted Smith’s request to modify the jury instructions for the standard of care for property owners. Generally, the jury instructions require a property owner to exercise ordinary care to avoid an unreasonable risk of harm. The modified jury instructions said, “Every building and all parts thereof shall be kept in good repair.”

Goshaw argued that the modified instructions elevated the standard of care from ordinary negligence to strict liability and thus misled the jury to find him negligent. The appeals court agreed with Goshaw, According to the court, the standard of ordinary care requires an analysis of the “totality of the circumstances,” including whether the property owner should have known about the repairs needed. Modifying the jury instructions to require all parts of buildings to be kept in good repair heightened the ordinary care standard to an absolute duty and misled the jury from taking into account the totality of the circumstances.

Because the modified instructions prejudiced the jury to find Goshaw negligent for repairs he might not have known about – a strict liability instead of ordinary negligence standard – the court awarded Goshaw a new trial with proper instructions.