Safe Medical Use of OxygenI own real estate, manage real estate and am a commercial real estate broker along with practicing personal injury law. I’ve been a trial lawyer for over 30 years and a property owner for just as long and commercial space since 1996. So this question posed to me as a lawyer is an interesting one. Let’s read the question.

Question: Is the apartment management liable if they knew one of the tenants used oxygen and smoked; the result was a fire? Management was aware a tenant using oxygen while smoking. No signs posted in tenant's windows to warn other tenants of oxygen use/danger. Fire resulted in many losing home and everything. I’m now suffering health issues due to stress. Wondering if apartment management has any legal liability?

So what did I tell them as a lawyer? 

Answer: Well this is an interesting question and I’m not sure it can be answered in this short Q&A format. They may be liability although from this rendition of the facts I'm unable to say. The legal theories involved is called premise liability and involves the landlord and tenant chapter of the Iowa Code. Your damages may not justify any claim, but again I can’t say without knowing more information. So, my advice is simple, see a lawyer.

Caveat: I don't see my roles as personal injury lawyer and landlord as a conflict. But you may and you should take my advice with a grain of salt; in other words keep it in mind in deciding what you should do. Everyone should see their own lawyer for legal advice. 

Legal Advice to Landlords: Don’t play with fire, meaning be careful about advice you give a tenant that directs how they should use oxygen for medical purposes. You should investigate to determine how it should safely be used and make sure the tenant has a doctor’s prescription to use it, but beyond that I think your lease should prohibit non-medical uses within your complex. I know our commercial leases prohibit the storage of chemicals and gases that can explode and that are not part or parcel of the doctor’s practice. We lease to doctors and hospitals so it’s a part of our business model. But residential or apartment managers may have hobbyists using and storing oxygen. That’s a different animal altogether because I believe landlords can rely on patient uses having someone who oversees its use and advises the patient about safety issues. That's probably not true with a hobbiest. If the patient ignores the safety advice of medical professionals they are the one assuming liability. Perhaps like us you should require those tenants to purchase liability insurance commensurate with the value of your building and possible liability exposure. This goes for commercial and residential tenant lease requirements.

So I think as a landlord you can't ignore what you see. You can't give medical advice. As the landlord you can require financial responsibility commensorate with the risks the tenant creates. And if the tenant fails to obey the rules you can terminate their lease. For oxygen uses you need to rely upon city inspectors and the medical profession. Perhaps the easiest way around this problem is to prohibit smoking. Anyone smoking would be violating the terms of the lease and give you reason to evict. 

As for liability in this instance check with your liability insurance carrier. 


 Resources:

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death
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