Opinion
No. 61-111.
November 30, 1961. Rehearing Denied January 12, 1962.
Appeal from the Circuit Court, Dade County, John J. Kehoe, J.
Law Offices of Lawrence Hastings, Carr Warren, Miami, for appellants.
Welsh, Cornell, Pyszka Carlton, Miami, and Harold G. Featherstone, Hialeah, for appellees.
Before PEARSON, TILLMAN, C.J., and HORTON and BARKDULL, JJ.
The appellant, who was plaintiff below, appeals from the final order of dismissal of her amended complaint, granted upon the appellee-defendants' motion to dismiss for failure to state a cause of action. She declined to plead further upon the court announcing its ruling. Her complaint sounds in tort, alleging that she was a tenant in an apartment house, operated by the defendant; that she was injured as a result of the defective rubber mat placed in the common hallway of the apartment. The charge of negligence upon the defendants is that they knew or should have known of the existence of the dangerous condition; yet there are no facts plead in the complaint to demonstrate for what period of time the dangerous condition had existed. The complaint also alleges that the defect was of such a nature that the appellant was unable to detect it.
Without any specific charge of knowledge upon the appellee-defendants and travelling upon the imputed knowledge by virtue of the existence of the dangerous condition, there must be some facts alleged to establish the period of time that the condition complained of existed, in order to demonstrate what opportunity the landlord had to discover the defect. Lacking such allegations, the complaint failed to state a cause of action, and the final judgment of dismissal by the trial court is affirmed. See Butler v. Maney, 146 Fla. 33, 200 So. 226.
Affirmed.
The conclusion which I have reached in this case is contrary to that reached by the majority. While I recognize the strong possibility that their reasoning is correct, I must respectfully dissent and briefly set out my reasons.
The general rule which I find applicable is that if the lessee knows the common approaches to his apartment have been made dangerous for use by the lessor's failure to perform his duty to maintain them in a safe condition, the lessee's knowledge of the dangerous condition will not put him in contributory fault as a matter of law unless the danger is so great that it is unreasonable for him to pass over the area which has been made dangerous, or if he fails otherwise to exercise that caution which a reasonable man would exercise under the circumstances. See discussion at 25 A.L.R.2d 472 and cases cited therein, particularly Soper v. Erickson, 172 Minn. 377, 215 N.W. 865; Keating v. Mott, 92 App. Div. 156, 86 N.Y.S. 1041. See also 2 Restatement of Torts, Section 360.
The charge of negligence appears to be that the landlord carelessly maintained the common hall in an unsafe condition. While this landlord's duty to inspect such premises is not measured by the duty of the operator of a public building to maintain a public hallway, yet First Federal Savings Loan Ass'n of Miami v. Wylie, Fla. 1950, 46 So.2d 396, 397, may be significant because the complaint there was to the effect that the floor was negligently and carelessly maintained and that the condition "was known to the defendant, or by the exercise of reasonable care and diligence should have been known to the defendant but * * * was not known to the plaintiff." The allegation quoted is very close to that of the pleader in the instant complaint. See also Karen Gardens v. Walen, Fla. 1954, 71 So.2d 732.
In reference to the last part of the allegation, i.e., "was not known to the plaintiff" it was held in the case of Welch v. Moothart, Fla. 1956, 89 So.2d 485, 487 that an allegation of freedom from contributory negligence contained in a complaint was not part of a claim for relief and amounted to mere surplusage.
I would reverse.