Opinion
May 12, 1950. Rehearing Denied October 20, 1950.
Appeal from the Circuit Court, Orange County, Frank A. Smith, J.
Pleus, Edwards Rush and Edward J. Gurney, Jr., Orlando, for appellants.
Maguire, Voorhis Wells, Orlando, for appellees.
The plaintiffs, appellants here, filed suit in the court below to recover their respective damages for personal injuries sustained by the plaintiff Eunice Cavezzi in falling from a platform on the upper portion of a garage owned by defendants, appellees here. At the close of plaintiffs' case, the court granted defendants' motion for a directed verdict, judgment for defendants was entered, from which judgment this appeal has been perfected.
It appears that plaintiffs occupied an apartment in a four-unit apartment house owned by defendants, in the rear of which was a two-car garage with a small attic space above. Access to such upper portion of the garage was by an outside stairway and a platform extending some distance across the front of the garage. Both the stairway and the platform were in disrepair, many boards being missing and the remainder in a defective condition. The plaintiff Eunice Cavezzi ascended the stairway and walked along the platform for the purpose of rescuing a kitten from the peak of the garage roof. While standing on the platform on a board adjacent to a hole in the platform caused by the previous disappearance of two boards and a portion of another, the board on which she was standing collapsed and she fell through the platform, sustaining the injuries of which she here complains.
It is the contention of the plaintiffs that the defendants had extended to the plaintiffs the right to use, in common with the other tenants of the apartment house, the garage premises including the attic space; that the plaintiff Eunice Cavezzi exercised her right under the "grant in common" of the garage premises, or acted upon the "implied invitation" to use said premises, when she ascended the stairway and stood upon the platform to rescue the kitten; that the defendants were obligated to maintain the garage building in a reasonable state of repair; and that they are therefore liable for their failure to replace the rotten defective planking in the platform, which is alleged to be the proximate cause of Eunice Cavezzi's injuries.
There is no merit to this contention. The evidence shows that, at various times throughout the years, the defendants had given permission to a tenant to use the attic space above the garage for storage purposes for the convenience of the tenant. It does not appear that permission to use such space had ever been given as part of the lease and as part of the consideration for the rental payment, nor was permission so given by defendants to the plaintiffs here. Under such circumstances, it is our opinion that the plaintiffs were mere licensees, as to which the defendants owed only the duty to refrain from wanton and wilful acts. See 32 Am.Jur., Landlord and Tenant, Section 687, page 561.
The facts here presented clearly are not within that class of cases in which the landlord impliedly reserves a portion of the premises, such as entrances, halls, stairways, porches, walks, or other approaches, for the common use of all of the tenants. In such cases, none of the tenants can have exclusive control or exclusive use and occupancy of such portions of the premises, which are clearly designed to be used in common by the separate tenants. As stated in Tiffany on Landlord and Tenant, Vol. 1, page 628: "In such case the landlord in effect invites the use of such passages or stairways by the tenants, * * * and he is accordingly regarded as liable * * * for any injury caused by his failure to exercise reasonable care to keep such parts of the building in proper repair, as is any owner of land or of structures thereon as regards persons whom he expressly or impliedly invites to enter thereon."
The other questions argued by plaintiffs have been considered, but we find no reversible error.
For the reasons stated, the judgment appealed from should be and it is hereby
Affirmed.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.