Summary
declining to apply assumption of the risk to a tenant's slip on unseen ice on the common approach to her apartment, and noting that “[t]he fact that plaintiff knew of the covering of snow upon the approach did not require that she stay in her apartment”
Summary of this case from Thomas v. Panco Management of Maryland, LLCOpinion
No. 30548
Decided June 19, 1946.
Landlord and tenant — Apartment building owner keeping common approaches free from ice and snow — Required to exercise ordinary care to render approaches safe for tenants — Action by tenant for personal injuries resulting from fall — Question for jury — Negligence of landlord — Recovery of damages not precluded under doctrine of assumed risk — Tenant's knowledge that common approach covered with snow.
1. The owner of an apartment building who reserves possession and control of the common approaches which provide ingress to and egress from such building to and from the public sidewalk and who assumes the duty of keeping such approaches clean and free from ice and snow is required to exercise ordinary care to render such common approaches reasonably safe for use by the tenants.
2. In an action by a tenant against such owner of an apartment building, for damages for personal injury resulting from a fall on a common approach from the building to the public sidewalk, where the undisputed evidence discloses that such approach was covered with snow underlaid with patches of ice from a storm of the night before which abated prior to two a. m. and the accident did not occur until more than ten hours thereafter, such facts present a jury issue as to whether the owner was guilty of negligence.
3. In an action against the owner of an apartment building for personal injuries sustained by a tenant who, during the day time, while wearing low-heeled slippers, sometimes called bedroom slippers, fell as a result of slipping on snow-covered patches of ice upon a common approach from one of the exits to the public sidewalk, knowledge of the fact that the approach was covered with snow will not preclude a recovery, as a matter of law, under the doctrine of assumed risk.
APPEAL from the Court of Appeals of Cuyahoga county.
Catherine Oswald (plaintiff) commenced this action in the Court of Common Pleas of Cuyahoga county against John and Mary Jeraj (defendants). The action was based on the claim that due to defendants' negligence plaintiff sustained serious personal injuries when she slipped and fell because of ice and snow upon a common approach leading from the apartment house, in which she lived, to the public sidewalk.
The evidence offered on behalf of plaintiff discloses the following factual situation:
Defendants were the owners of an apartment building, containing six apartments, located at 1243 East 89th street in the city of Cleveland, Ohio. At the front of that building were two porches and two entrances. One was used by the tenants occupying four of the apartments. The other one was used by the plaintiff and the defendants, who occupied the other two apartments which were serviced by a common approach, leading to the public sidewalk, with which we are concerned in the present case. The plaintiff and her husband had occupied the lower apartment as a tenant at will from about three to five years prior to February 7, 1943, the date when she sustained her injuries. The evidence does not disclose the exact duration of the occupancy of the upper apartment by the defendants, but does give rise to the inference that defendants had occupied that apartment for a longer period of time than plaintiff had occupied the lower apartment. There is no dispute upon the proposition that the defendants had always assumed the duty of keeping the approach to the building clean and free from ice and snow.
This common approach leading to the public sidewalk was about 12 feet in length and about six feet in width and sloped downward from the entrance to the public walk. The slope was from six to nine inches in the distance of about 12 feet. During the entire occupancy of plaintiff and her husband, the defendants at all times had kept that common approach clean and free from ice and snow. On Saturday evening, February 6, 1943, plaintiff and her husband went to a party and arrived home about two a. m. Sunday morning. Some time during that night prior to their return a light snow had fallen. On Sunday morning plaintiff went to church and returned about 11:30 a. m. In going out on Saturday night and in returning from the party, as well as going to and returning from church, plaintiff had used the common approach and nothing untoward had happened. On those occasions plaintiff wore galoshes.
About noon on Sunday plaintiff received a telephone call requesting her to notify her father to report for work the next morning and shortly thereafter she saw him across the street and went out the front entrance to give him the message. When she had proceeded two or three steps from the front step of the building she fell and was injured. At that time she had On low-heeled slippers sometimes called bedroom slippers. When she fell her clothing brushed away the snow on part of the walk and she discovered small patches of ice beneath the snow. There is no claim of any structural defect in the approach. In addition to the facts related, medical testimony (not material here) was introduced as to the nature and extent of the injuries.
At the conclusion of the plaintiff's evidence the trial judge granted a motion for a directed verdict and judgment in favor of defendants and thereafter overruled plaintiff's motion for a new trial.
An appeal on questions of law was perfected to the Court of Appeals where the judgment was affirmed.
The case is here for review following the allowance of a motion to certify the record.
Messrs. Harrison Marshman and Mr. C. Craig Spangenberg, for appellant.
Mr. J.R. Kistner, for appellees.
The single question presented by this record is whether the allegations of the petition and the evidence introduced in support thereof entitled the plaintiff to have her cause submitted to a jury.
The authorities are not in harmony on the question whether the owner of an apartment building owes a duty to the tenants thereof to remove from the common approaches thereto ice and snow caused by natural elements. In some states it is held that he does owe such a duty. See Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A. L. R., 287; Thompson v. Resnik, 85 N.H. 413, 159 A. 355; Boyle v. Baldowski, 117 N.J. Law, 320, 188 A. 233; Robinson v. Belmont-Buckingham Holding Co., 94 Colo. 534, 31 P.2d 918.
In others it is held that he does not owe such a duty. See Martin v. Rich, 288 Mass. 437, 193 N.E. 21, 97 A. L. R., 217; Gianpaola v. Paoli, 129 N.Y. Supp., 180; Boulton v. Dorrington, Admr., 302 Mass. 407, 19 N.E.2d 731; Rosenberg v. Chapman Natl. Bank, 126 Me. 403, 139 A. 82; Roman v. King, 289 Mo., 641, 233 S.W. 161, 25 A. L. R., 1263; McGinley v. Alliance Trust Co., 168 Mo., 257, 66 S.W. 153, 56 L.R.A., 334, and cases cited.
However, there seems to be no great variance of opinion upon the proposition that an owner may obligate himself to perform such duty by contract either express or implied by a course of conduct. See Looney v. McLean, 129 Mass. 33, 37 Am. Rep., 295; Nash v. Webber, 204 Mass. 419, 90 N.E. 872; Caruso v. Lebowich, 251 Mass. 477, 146 N.E. 699.
Here the uncontroverted evidence discloses that the owners were in complete possession and full control of the common approaches; that for the period of several years before the accident they had assumed the duty of keeping the common approaches, which furnished ingress to and egress from the building, clear and free from ice and snow; that they kept the proper tools as well as a barrel of salt on hand for that purpose; and that the day prior to the plaintiff's injury they had cleaned the common approach upon which her injury occurred.
It is urged by the plaintiff that we are called upon here to accept or reject the so-called Massachusetts rule. We do not think that the facts presented call for the declaration of any new principle of law. As we view the situation the principle announced in the case of Davies, a Minor, v. Kelley, 112 Ohio St. 122, 146 N.E. 888, is dispositive of this case.
Paragraph one of the syllabus reads as follows:
"If the owner of a house leases a portion of it, to which access is had by way of halls, stairways or other approaches, to be used by such tenant in common with the owner or tenants of the other portions of the premises and retains the possession and control of such halls, stairways or other approaches, it is his duty to exercise ordinary care to keep the same in a reasonably safe condition." (Emphasis added.) See, also, Rice v. Ziegler, 128 Ohio St. 239, 190 N.E. 560.
That case is in harmony with the general rule and supported by the weight of authority.
True the Kelley case involved a defective railing around a porch and outside stairs to a building. However, if the landlord owes the duty to keep the approaches in a reasonably safe condition, he cannot escape liability upon the theory that the unsafe condition is the result of natural causes.
In Reardon v. Shimelman, supra, at page 388, the Supreme Court of Errors of Connecticut said:
"The duty of the landlord being to exercise reasonable care to prevent the occurrence of defective or dangerous conditions in the common approaches, the fact that a particular danger arose from the fall of snow or the freezing of ice can afford no ground of distinction. Indeed, the causes which are at work to produce it are no more natural causes than are those which, more slowly, bring about the decay of wood or the rusting of iron. To set apart this particular source of danger is to create a distinction without a sound difference." See, also, Mackin v. Last, 127 N.J. Law, 37, 21 A.2d 345; Berthiaume v. Kessler, 86 N.H. 305, 167 A. 273.
In the case of Massor v. Yates, 137 Ore., 569, 3 P.2d 784, it is said:
"If it is the duty of a landlord to make repair of structural defects, of which he has notice, in a common passageway, it is difficult to see why he is not likewise under duty to remove snow or ice accumulated on steps under such circumstances as to become dangerous to the different tenants obliged to use the entranceway."
In the Boyle case, supra, the second paragraph of the syllabus reads as follows:
"In an action against the owners of an apartment house for injury sustained by a tenant, in using the entrance steps, in consequence of snow underlaid with ice upon the steps, the mere fact that the plaintiff noticed soft snow upon the steps on her way out, without knowledge that it was underlaid with ice, will not defeat her action for injury caused by the presence of ice upon the steps."
In the case of Robinson v. Belmont-Buckingham Holding Co., supra, the Supreme Court of Colorado said:
"Defendant contends that the duty of a landlord to make general repairs does not extend to temporary obstructions arising from natural causes, such as accumulations of ice or snow, but surely defendant would not expect this necessary labor to devolve upon the tenants of a large apartment house. The fact that the defendant company itself had a broader conception of its duties than this is apparent from the testimony of its president and general manager; that it failed in the exercise of its duty presents another question. To agree with defendant on this point of its liability would place thousands of city residents in jeopardy and would be inimical to modern urban life."
We entertain the view that, upon reason and authority, where, in a case such as the instant one, the landlord of an apartment building was in actual possession and control of the common approaches thereto and for a long period of time prior to the date of an injury to a tenant had assumed the duty of keeping such common approaches clean and free from ice and snow, and where the evidence discloses at least ten hours had elapsed between the time of the snow fall and the time of the accident, such facts present a jury issue.
The trial court was of opinion that when plaintiff went out in low-heeled slippers, commonly called bedroom slippers, she assumed whatever risk was connected with that method of travel on a walk that was covered with snow.
That plaintiff knew there was a light covering of snow upon the walk is undisputed, however there is no evidence to support a conclusion that she knew of the patches of ice beneath the snow, hence it was error to conclude as a matter of law that she was precluded from recovery under the doctrine of assumed risk. The fact that plaintiff knew of the covering of snow upon the approach did not require that she stay in her apartment. Using such approach with her feet clad in low-heeled slippers did not as a matter of law charge her with assumption of risk. The fact that she went upon the walk in low-heeled slippers knowing it was covered with snow might be urged in considering an issue of contributory negligence.
We do not think that the doctrine of assumed risk has any application to the situation presented, nor do we think it can be said as a matter of law that plaintiff was guilty of contributory negligence. The question whether the defendants were guilty of negligence, as well as the question whether the plaintiff was guilty of contributory negligence, is one of fact. Therefore the trial court erred in directing a verdict and entering judgment for defendants, and the Court of Appeals erred in affirming that judgment.
For the reasons stated the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for a new trial.
Judgment reversed and cause remanded.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS and MATTHIAS, JJ., concur.
TURNER and HART, JJ., dissent.