Summary
housing standard ordinance did not enlarge common-law duty of landlord in suit by person injured on defective steps at entrance to leased premises
Summary of this case from Williamson v. the Old Brogue, Inc.Opinion
39133 Record No. 3782.
June 18, 1951
Present, Hudgins, C. J., and Eggleston, Buchanan, Miller and Whittle, JJ.
(1) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Injury to Third Person by Reason of Defective Steps — Circumstances Making Third Party Invitee of Tenant.
(2) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Duties and Liabilities to Invitees of Tenant.
(3) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Liability for Defects Known to Lessee.
(4) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Liability for Positive Act of Negligence — Necessity of Casual Connection.
(5) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Injury to Third Person by Reason of Defective Steps Evidence — Insufficiency to Establish Causal Connection between Injury and Negligent Repairs.
(6) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Injury to Third Person by Reason of Defective Steps — Evidence — Admissibility and Effect of City Ordinance.
(7) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Injury to Third Person by Reason of Defective Steps Evidence — Admissibility and Effect of City Ordinance.
(8) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Nuisance — Liability for Injury to Person on Demised Premises in Right of Tenant.
(9) Landlord and Tenant — Liability of Landlord with Respect to Condition of Premises — Injury to Third Person by Reason of Defective Steps — Circumstances Where Common-Law Duty Not Affected by Ordinances or Statute.
1. Plaintiff brought an action to recover for injuries sustained when some steps at the entrance of defendants' building tilted over and caused him to fall. Plaintiff was employed by a furniture store as a collector, etc., and at the time of his injury he was paying a business call on a customer who was defendants' lessee. In view of the fact that plaintiff's call on the tenant was on a matter of common interest, or mutual advantage, he was an invitee or business guest of the tenant.
2. The duties and liabilities of the landlord to the guests and invitees of the tenant, with respect to personal injuries, are ordinarily the same as those which the landlord owes to the tenant.
3. On the owner's surrender of control of the premises to his lessee, in the absence of any warranty of their condition or fraudulent concealment of known defects, or agreement to repair, he is not liable to the lessee or to his invitees for defects known to the lessee, or which he could have discovered by reasonable inspection.
4. Where a positive act of negligence of the landlord is relied upon as the basis of liability for injuries sustained by a tenant or his invitee, there must be shown a causal connection between the act of negligence and the injury.
5. Under the facts of headnote 1, plaintiff contended that defendants were liable for the injuries under the principle that if a landlord fails to use reasonable care in making any repairs, he is liable, unaffected by the doctrine of landlord and tenant, upon the basis of a positive act of negligence. The only evidence as to what repairs were made by the landlords came from the tenant, and she testified that nothing had been done to the steps except to drive a nail or two into the brick wall in an attempt to fasten the steps to the house, but that it wasn't long before they wore loose and that at the time of the accident she had put the steps where they were, propped up against the brick wall. In view of that evidence, the act of defendants was not the cause of the injury, and plaintiff's contention was without merit.
6. Under the facts of headnote 1, the trial court refused to allow in evidence a city ordinance passed in 1923 purporting to establish a new building line, together with certain surveys and plats, designed to show that in relation to the new building line, the steps were on the sidewalk. Plaintiff argued that the public obtained a prescriptive right to the land whereupon the steps were located which prevented the tenant from having exclusive control and possession of the steps, and that such rendered the usual law of landlord and tenant inapplicable. Since the building was there when the ordinance was passed and nothing in the ordinance indicated it was intended to apply to existing buildings, and since, in any event, the ordinance could not divest defendants of their title and there was nothing in the record to establish that it affected control or possession of the premises so as to change the rights and liabilities of the parties, the trial court properly refused the ordinance and there was no basis for plaintiff's argument.
7. Under the facts of headnote 1, the trial court refused to allow in evidence several city ordinances making it unlawful to maintain steps, etc., extending beyond the building line, or to permit dangerous structures to exist upon one's property, etc., and in each instance providing the proper procedure necessary to make the ordinances applicable to a given property. Plaintiff argued from those ordinances that whether the steps were on a public street or private property, they were a nuisance, constituting a proximate cause of plaintiff's injuries for which defendants were liable. Plaintiff's argument was without merit, since there was nothing in the evidence to show that any of the procedures required by the ordinances had been taken so as to make the ordinances applicable to the premises, and, moreover, if it had been assumed that steps constituted a nuisance, public or private, so as to afford a cause of action on that ground, defendant landlords would not have been liable for that reason to plaintiff, an invitee.
8. A landowner is not liable to a person on the demised premises in the right of the tenant for injuries caused by a defective condition of the demised premises on the theory that the condition is a ruinous condition or a nuisance.
9. Under the facts of headnote 7, neither the city ordinances nor section 8-652 of the Code of 1950, providing that any person injured by the violation of any statute may recover from the offender such damages as he may sustain, etc., enlarged the common-law duty of defendants to their tenant or her invitee.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. Clyde H. Jacob, judge presiding.
Affirmed.
The opinion states the case.
White, Ryan Holland, for the plaintiffs in error.
Willcox, Cooke Willcox and John J. Baecher, for the defendants in error.
Oliver, the plaintiff, was injured when some steps at the entrance of a building owned by the defendants tilted over and caused him to fall. He sued the defendants as owners, but at the conclusion of his evidence the court struck it out and a verdict for defendants was returned on which the court entered the judgment appealed from. He asserts here that the court erred in refusing to admit certain evidence he offered and in sustaining the defendants' motion to strike.
Oliver was employed by a furniture store as collector, salesman, and investigator. At the time of his injury he was paying a business call on Cora Mullen, a customer of the store, in connection with some purchases she had made. She lived at 811 Bank street, in Norfolk, in property owned by the defendants, and leased by them to her.
Plaintiff had never been there before, but other agents of the store had been. Cora Mullen lived upstairs in this property, an old brick structure that had been there more than fifty years. Entrance to her apartment was gained through an outside door and an inside stairway. This outside door, which was in the brick wall at the corner of the building, was two feet above a dirt sidewalk. Below the sill of the door were two wooden steps for stepping up to the doorway. The bottom step was 10 inches high, the top step was 6 1/2 inches high and it was 7 1/2 inches from the top step to the door sill. These two steps were nailed together, rested on the ground and against the building without being attached to either. These steps and this door led only to Cora Mullen's apartment and served no other. The plaintiff entered over these steps to call on the tenant without trouble and without noticing anything wrong with them. As he came out and stepped on the bottom step they tilted or turned over and he fell into the street, striking his knee against the curb.
The accident happened on October 15, 1949. Cora Mullen had lived in the premises since 1940 under a verbal lease, on a month-to-month basis, with no agreement by her landlords to make repairs, no warrantly of the condition of the premises and no concealment of known defects. These same steps were there when she moved in, and had been there during the entire time of her tenancy.
The plaintiff's call on the tenant was on a matter of common interest, or mutual advantage, and hence he was an invitee or business guest of the tenant. Pettyjohn Sons v. Basham, 126 Va. 72, 79, 100 S.E. 813, 815, 38 A. L. R. 391; Davis Bakery v. Dozier, 139 Va. 628, 637, 124 S.E. 411, 414.
The duties and liabilities of the landlord to the guests and invitees of the tenant, with respect to personal injuries, are ordinarily the same as those which the landlord owes to the tenant. They stand in the tenant's shoes. 52 C.J.S., Landlord and Tenant, Sec. 418, p. 58; 32 Am. Jur., Landlord and Tenant, Sec. 665, p. 529.
On the owner's surrender of control of the premises to his lessee, in the absence of any warranty of their condition or fraudulent concealment of known defects, or agreement to repair, he is not liable to the lessee or to his invitees for defects known to the lessee, or which he could have discovered by reasonable inspection, and the invitee stands in the shoes of the lessee with respect to his right to recover from the lessor. Smith v. Wolsiefer, 119 Va. 247, 252 ff., 89 S.E. 115, 117 ff.; Caudill v. Gibson Fuel Co., 185 Va. 233, 240, 38 S.E.2d 465, 469; Luedtke v. Phillips, 190 Va. 207, 211, 56 S.E.2d 80, 82.
Plaintiff seeks to avoid the application of this established rule by invoking the principle stated in Tugman v. Riverside, etc., Cotton Mills, 144 Va. 473, 132 S.E. 179; i. e., after possession has been delivered to the tenant, if the landlord enters to make repairs, either voluntarily or by agreement, he must use reasonable care in making them. That case, it was said, was unaffected by the doctrine of landlord and tenant, but the liability of the defendant grew out of a positive act of negligence. This is a distinction that is recognized generally. Luedtke v. Phillips, supra, 190 Va. at p. 212, 56 S.E.2d at p. 83; Anno., 150 A. L. R. at p. 1373.
In Massachusetts a landlord making repairs gratuitously is liable only for gross negligence and then only to the tenant. Diamond v. Simcovitz, 310 Mass. 150, 37 N.E.2d 258.
Since the basis of such liability is negligence, there must be causal connection between the act of negligence and the injury. The landlord's negligent act must be the real cause of the injury. 32 Am. Jur., Landlord and Tenant, Sec. 682, p. 551; Anno., 150 A. L. R. 1373, at p. 1380.
Here the act of the landlords was not the cause of the injury. The only evidence as to what they did came from the tenant. She testified that about a year and a half before this accident, after her repeated complaints, the rental agent of defendants sent a man up there who put up some back steps and patched some plaster. "He did not do anything to the front steps, so far as improving them two steps. I think he put a nail or two in the brick;" but it wasn't long before they wore loose, she said. "I moved them around like you do a book or a satchel, because they were just nailed to themselves. They were not fastened to anything." She had put the steps where they were at the time of the accident, propped up against the brick wall. "They would fail off, and I fixed it like that." "I knew it was going to fall," she said. At the time of the accident the steps were structurally the same as they were at the beginning of the tenancy. The tenant placed them where and as they were when the plaintiff fell. The act of the landlords had nothing to do with his fall.
Furthermore, to support his claim of liability on the ground that the steps constituted a nuisance, the plaintiff contends that a new term began for the tenant each month. Burroughs v. Ben's Auto Park, 27 Cal.2d 449, 164 P.2d 897, 899. If so, the so-called repairs were made before the beginning of the term during which the plaintiff was injured, and in that view the doctrine of the Tugman Case would not be applicable.
The plaintiff offered in evidence, and the court rejected, an ordinance of the city passed in 1923 purporting to establish a new building line on Bank street, together with certain surveys and plats, designed to show that the new building line ran back of the front wall of the building and, therefore, the steps were on the sidewalk. Following this, the plaintiff argues, the public obtained a prescriptive right to the land between the curb and the building line which prevented the tenant from having exclusive control and possession of the steps and thus rendered the usual law of landlord and tenant inapplicable.
One answer to this contention is that there is no basis for it in the evidence. Also, the building was there when the ordinance was passed, and nothing in the ordinance indicates it was intended to apply to existing buildings. In any event, the ordinance could not divest the defendants of their title and there is nothing in the record to establish that it affected control or possession of the premises so as to change the rights and liabilities of the present parties. Cf. Ziulkowski v. Kolodziej, 119 Conn. 230, 175 A. 780, 96 A. L. R. 1065 and Anno. at p. 1068.
The plaintiff also offered in evidence, and the court rejected, these city ordinances: Section 366, providing that no porch, steps, etc., attached to any building or lot, shall be extended beyond the building line; and that any property owner who shall encroach upon the street line by building or otherwise shall be liable to a fine for every day after notice to have it removed; Section 182, providing that it shall be unlawful for the owner to permit any structure to exist which, by reason of fire, etc., "dilapidation or otherwise," has become dangerous to persons passing upon the streets, or to persons on private property, or to adjoining property; Sections 183-186, making it the duty of the building inspector to examine all structures reported to him to be dangerous, as described in section 182, and if it is, in his opinion, then the owner is to be summoned before the police justice who may require the owner to repair or remove the structure, and on failure to comply the owner shall be liable to a fine and certain costs of removal.
The plaintiff argues from these ordinances that whether the steps were on a public street or private property they were a nuisance, constituting a proximate cause of plaintiff's injuries for which defendants are liable.
It may be said generally that there is nothing in the evidence in this case to show that any of the procedures therein required have been taken so as to make these ordinances applicable to these premises. Moreover, if it be assumed that the steps constituted a nuisance, public or private, so as to afford a cause of action on that ground, which is somewhat more than doubtful, the defendant landlords are not for that reason liable to this plaintiff, an invitee.
See Price v. Travis, 149 Va. 536, 140 S.E. 644, 56 A. L. R. 209; Prior v. White, 132 Fla. 1, 180 So. 347, 116 A. L. R. 1176 at p. 1187; Webel v. Yale University, 125 Conn. 515, 7 A.2d 215, 123 A. L. R. 863 at p. 869; 39 Am. Jur., Nuisances, Sections 8, 9.
"Although there is some authority to the contrary, the great weight of authority is to the effect that a landowner is not liable to a person on the demised premises in the right of the tenant for injuries caused by a defective condition of the demised premises on the theory that the condition is a runinous condition or a nuisance." 32 Am. Jur., Landlord and Tenant, Sec. 665, p. 531.
In Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34, 110 A. L. R. 749, the action was by the tenant and his wife, who was also his employee, under a month-to-month lease, against the owners for injuries sustained by her from the collapse of a cellar stairway. The court said it had repeatedly held "that a tenant takes the property as he finds it, with all existing defects which he knows or can ascertain by reasonable inspection. This is so even though the premises are in a condition called ruinous." The doctrine of "condition amounting to a nuisance," the court held, does not apply as between landlord and tenant, or to persons on the premises in the tenant's right, but "is confined to third persons or strangers to the premises, those 'either the owners or occupants of near-by property, persons temporarily on such property, or persons on a neighboring highway or other public place.' " (Quoting from 1 Tiffany, Landlord and Tenant, 674). 110 A. L. R. at p. 755. See other cases to the same effect cited in Annotation to that case, 110 A. L. R. at p. 756.
There are exceptions to this rule, particularly where the premises are let for public or semi-public purposes. See 52 C. J. S., Landlord and Tenant, Sec. 422, p. 75; Webel v. Yale University, supra, 125 Conn. 515, 7 A, 2d 215, 123 A. L. R. 863 and Anno. at p. 870; Barrett v. Lake Ontario Beach Imp. Co., 174 N.Y. 310, 66 N.E. 968, 61 L. R. A. 829.
In Smith v. Wolsiefer, supra, 119 Va. at p. 254, 89 S.E. at p. 117, we said: "If the plaintiff in error had been a stranger, as contra-distinguished from an invitee or member of the lessee's family, his rights would have been different."
Neither these ordinances nor section 8-652 of the Code of 1950 enlarged the common law duty of the defendants to their tenant or her invitee. Johnson v. Carter, 218 Iowa 587, 255 N.W. 864, 93 A. L. R. 774 and Anno. at p. 778; Chambers v. Lowe, 117 Conn. 624, 169 A. 912; Wyatt v. Chesapeake, etc., Tel. Co., 158 Va. 470, 477, 163 S.E. 370, 372, 82 A. L. R. 386.
There is no reversible error in the ruling's of the trial court and its judgment is
Affirmed.