Opinion
3-16-1959
Mary R. BURKS, Plaintiff and Appellant, v. Boise BLACKMAN, A. E. Campana, Elna Campana, et al., Defendants and Respondents. * Civ. 17950.
Vernon W. Humber, Thaddeus J. Kukula, San Francisco, for appellant. Theodore Tamba, San Francisco, for respondents.
Mary R. BURKS, Plaintiff and Appellant,
v.
Boise BLACKMAN, A. E. Campana, Elna Campana, et al., Defendants and Respondents. *
March 16, 1959.
Rehearing Denied April 15, 1959.
Hearing Granted May 13, 1959.
Vernon W. Humber, Thaddeus J. Kukula, San Francisco, for appellant.
Theodore Tamba, San Francisco, for respondents.
PETERS, Presiding Justice.
Plaintiff was a tenant of an apartment house owned and operated by the defendants. On the rear of the exterior of the building was a maze of stairways and platforms, some used in common by some or all of the tenants, and some used in whole or in part exclusively by one tenant. The back door of plaintiff's apartment opened onto a small platform, designated in the evidence as landing number one. Three steps, designated as steps number one, led from landing number one down to landing number two. These two landings and the steps were used exclusively by the plaintiff and her family. From landing number two, steps, designated as steps number two, led to platform number three, from which steps led to landing number four. These steps and platforms were used in common by several tenants, including the plaintiff. The basic support for these stairways and platforms was common for portions of the areas used exclusively by plaintiff and those used in common with other tenants. These back stairways and platforms were designed so that tenants could reach the area where garbage cans were kept, and to reach an area where the tenants could dry their clothes.
On July 22, 1954, at about 7:15 a. m., plaintiff stepped out on landing number one, walked down the three steps to landing number two, intending to go to the garbage can on the ground level to deposit some refuse. She took one or two steps on landing number two, when the floor boards collapsed beneath her, and she fell to the cement floor some eight or ten feet below, and was hurt. She brought this action against her landlords, alleging negligence on their part. The jury decided in favor of the defendants. From the judgment entered on that verdict the plaintiff appeals. The appeal is taken on a settled statement.
Plaintiff testified that the only purpose in using these back steps and landings was to dispose of garbage on the ground level or to hang out clothes to dry on a landing on the floor above her. Plaintiff conceded that only she and her husband used landing number two which collapsed, and that that landing was not used by any other tenant. Had she taken but another couple of steps, however, she would have reached the steps and platform used in common with other tenants.
Expert testimony was introduced which demonstrated, without conflict, that the wood and supports of landing number two were badly deteriorated and rotted and that such condition was readily observable upon a reasonable inspection. As already pointed out, the supports which collapsed supported not only landing number two, but also the areas used in common by several tenants.
The court minutely, carefully and exhaustively instructed regarding the landlord-tenant relationship, and the duties imposed on each. These instructions need not be quoted verbatim. Time and time again the trial court instructed, illustrating its instructions with numerous examples, that if the platform which collapsed was used exclusively by the plaintiff and her husband and not used in common with other tenants, the plaintiff could not recover. Under the instructions this test was made the sole test of liability. These formula instructions amounted to a directed verdict in favor of defendants because plaintiff had admitted that she and her husband were the only ones ever to use the landing in question. The basic question presented on this appeal is whether these instructions properly defined the plaintiff's rights and the defendants' obligations under the facts here existing.
The instructions were in error. It is, of course, the general rule that a landlord is under no duty to maintain leased premises free from defective conditions that cause injury to his tenants. The lessee, as a general rule, takes the premises as he finds them and must protect himself against any dangerous condition found thereon. This is an application of the rule of caveat emptor to leases. Hassell v. Denning, 84 Cal.App. 479, 258 P. 426. Of course, these responsibilities may be changed by contract. In addition, two exceptions have grown up to the general rule that a landlord is not liable for dangerous conditions existing on the leased premises. The first exception relates to situations where the landlord leases premises with knowledge of the existance of a latent defect which is unknown to the tenant and which causes injury to him. The landlord may then be liable. This exception in based on something like fraud. Shotwell v. Bloom, 60 Cal.App.2d 303, 140 P.2d 728; Prosser on Torts, 2d Ed., 466. Admittedly, the jury was properly instructed as to this exception.
The second exception to the rule limiting the landlord's immunity is the one that has given the most trouble to the courts. Generally stated, it is that, where a landlord retains control over parts of the premises used by the tenants but not demised to any one tenant, the landlord is liable for injuries from defects that a reasonable inspection would have disclosed. This exception to the general rule of non-liability grew up because of the problems presented by the use of multiple dwelling units. In most apartments and other multiple dwelling units there are hallways, stairways and the like not in fact leased to any one tenant but which are used in common by several tenants. These, as a matter of practical and legal necessity, the landlord must keep in a state of repair. I Tiffany, Landlord and Tenant, § 89, p. 631; Jones, Landlord and Tenant, § 614, pp. 705, 706; II Underhill, Landlord and Tenant, § 485, p. 799; Harkrider, Tort Liability of a Landlord, 26 Mich.L.Rev. 260, 402. This rule had its origin in the fact that, in multiple dwelling units, as a matter of common sense and fairness, the landlord should maintain and keep in repair areas of common use. This rule has repeatedly been recognized in California. Harris v. Joffe, 28 Cal.2d 418, 170 P.2d 454; Bock v. Hamilton Square Baptist Church, 219 Cal. 284, 26 P.2d 7; Dorfer v. Delucchi, 61 Cal.App.2d 63, 141 P.2d 905; Goddard, California Landlord-Tenant Law and Procedure, 3d Ed., p. 111.
It is important to note that this exception to the general rule grew out of the particular fact situation involving an area not used by any one tenant exclusively. But this does not mean that this is the only fact pattern to which the rule is applicable. As early as 1910 Tiffany foresaw the unreasonableness of an arbitrary application of the exception and warned against it. In Vol. I of his book on Landlord and Tenant at page 639 Tiffany states: 'It has been apparently decided in several cases that though the landlord owes to his tenants the duty to keep the common passageways, stairs, platforms and the like in safe condition for the use of the various tenants and their guests, there is no analogous obligation in the case of a passageway or platform, the use of which is not common to two or more tenants, but which one tenant alone has the right to use, although such passageway or platform is not a part of the leased premises, but is retained by the landlord, and the tenant is given merely the right to make use thereof. * * * It might be questioned, it is conceived, whether the lessor, retaining possession and control of an approach to a single tenement, necessary for access thereto, should not be under the same duty of exercising diligence to keep it safe as in the case of an approach to several tenements, since he invites its use by the tenant and the tenant's visitors.' (Italics added.)
The suggested extension of the rule is a sound one. From a standpoint of reason and logic, in such cases, the ultimate fact question should be whether or not, from a realistic and common sense viewpoint, the landlord has retained control of the particular area involved. In determining this question many factors should be considered. One such factor is whether or not the area was used by one or by more than one tenant, or by the tenant and the landlord. But this factor, although important, is not the only factor to be considered. The vice of the instructions here given is that they make this factor the exclusive one, that is, the jury was told that unless such joint use existed no liability could be imposed.
There are some California cases which seem to indicate that if the use is exclusive by the tenant there cannot be any liability on the landlord. These cases all involved private and separate and distinct stairways leading to a particular apartment and used exclusively in its entire length by one tenant. These cases held that in such a situation there is no duty on the landlord to inspect and to repair defects. Ellis v. McNeese, 109 Cal.App. 667, 293 P. 854; Epperson v. Mendes, 141 Cal.App.2d 581, 297 P.2d 141; Goodmaker v. Kelley, 154 Cal.App.2d 457, 316 P.2d 746; Schafer v. Mascola, 163 Cal.App.2d 53, 328 P.2d 865. These cases contain general language which support the theory of the instructions here under attack.
Other cases, however, while recognizing that common use is an important factor, do not treat it as the exclusive factor and recognize that the real test is whether the landlord had retained sufficient control over the area in question so as to be responsible for its upkeep. Bellon v. Silver Gate Theatres, Inc., 4 Cal.2d 1, 47 P.2d 462; Harris v. Joffe, 28 Cal.2d 418, 170 P.2d 454. An instruction to the effect that a landlord is under a duty to provide a safe means of entrance and exit for his tenants, without mentioning common use, has been upheld. Rodenberger v. Frederickson, 111 Cal.App.2d 139, 244 P.2d 107.
It is quite significant that in phrasing the exception to the general rule of landlord's immunity the Restatement of Torts makes no mention of common use. Section 360 provides: 'A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.' This Restatement rule has been approved in California. Harper v. Vallejo Housing Authority, 104 Cal.App.2d 621, 232 P.2d 262. In other states it has been specifically held that the fact that the particular area is not actually in common use by more than one tenant does not preclude the exception to the rule under consideration from being applicable. Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377; Farguet v. De Senti, 110 Conn. 367, 148 A. 139; Ruane v. Doyle, 308 Mass. 418, 32 N.E.2d 244.
The other Division of this court recently passed on this very subject in Yazzolino v. Jones, 153 Cal.App.2d 626, 315 P.2d 107 (hearing in Supreme Court denied). The facts of that case are very similar to those here involved. There, the plaintiff, a guest of an upstairs tenant, was injured on a portion of the outside stairway used exclusively by the upstairs tenant, but which stairway was connected with other stairways in common use. That is precisely the fact situation here involved. In the course of its opinion the court stated (153 Cal.App.2d at page 633, 315 P.2d at page 112): 'The stairway led from the ground to the back door of the lower flat and to the back door of the upper flat. There was no independent stairway for each floor of the building. As the plaintiff correctly points out in his brief, actual use is not the determinative factor. [Citation.] It is, therefore, of no significance that the upstairs tenant did not use the stairway or that the Duffys [lower tenants] has used the stairway only once in six months. If the upstairs tenant had wanted to use the stairway to get to the back door of her flat, she would have had to use the lower portion of the stairway. There is no question therefore that the lower portion of the stairway was a common areaway. It would be ridiculous to say that, although the lower portion of the stairway was a common areaway, the upper portion was not because it led only to the flat of the upstairs tenant, as the defendant argues.' (Italics added.)
We agree that it would have been 'ridiculous' to hold in the Yazzolino case that the landlord was responsible for the repair of one-half of the stairway and not responsible for the repair of the other half. Yet in the instant case, the trial court, by rigid adherence to the common use theory, told the jury that if they should find that the portion of the passageway involved was used exclusively by the plaintiff, a fact admitted by the plaintiff, no liability could attach to the landlord even though other portions of the same passageway were used by the other tenants. Under the instructions here involved if the plaintiff had advanced but a couple of steps further she would have reached the magic area of common use and would clearly have been entitled to recover. The law is not so unrealistic and formalistic as to require a landlord to repair part of a maze of connected stairways and permit him, with immunity, to discontinue such repairs on contiguous parts, even though some of the supporting beams are common to both portions of the stairway. Yet that is exactly what the jury was instructed was the law. The ultimate factual question that should have been submitted to the jury was whether a reasonable tenant and landlord would believe that the landlord retained sufficient control of the portion of the area where the injury occurred, and not solely whether the area in question was or was not used exclusively by the tenant.
The trial court also committed reversible error in giving instructions on contributory negligence. It is true that defendants pleaded contributory negligence in their answer as an affirmative defense, but the record shows that no evidence, sufficient to support a finding on this issue, was introduced. It is the law that the giving of instructions on issues not involved, even though such instructions are abstractly correct, is error. Shippy v. Peninsula Rapid Transit Co., 197 Cal. 290, 240 P. 785. Of course, if evidence, sufficient to support a finding on the issue is introduced, then the giving of such instruction is proper. Washington v. City and County of San Francisco, 123 Cal.App.2d 235, 266 P.2d 828; see cases collected 24 Cal.Jur. p. 830, § 95.
Defendants contend that there was sufficient evidence introduced by thd plaintiff on this issue to warrant giving the instructions. Plaintiff admitted that she had used the stairway, intermittently, for about a year, and evidence was introduced to show that the porch and its supports were visibly rotted. But on the issue of the visibility of the defective condition George Washington, plaintiff's expert witness, testified that, although the rot was visible, it was only by bending over the platform and looking underneath that it could be seen. Later in his testimony he stated that one not an expert on rotten wood would not be able to observe the defective condition by ordinary use of the platform. Defendants introduced no evidence on the issue. Obviously, this evidence would not support a finding that the plaintiff was contributively negligent in using the platform for the purpose it was intended. On the retrial unless sufficient evidence is introduced on this issue, the instructions on contributory negligence should not be given.
The judgment appealed from is reversed.
BRAY and FRED B. WOOD, JJ., concur. --------------- * Opinion vacated 344 P.2d 301.