Montgomery v. Engel

Decision Date02 September 1970
Docket NumberNo. 53843,53843
PartiesEdward MONTGOMERY, Appellant, v. Robert R. ENGEL and Jean M. Engel, Appellees.
CourtIowa Supreme Court

Wilson, Rhinehart & Bikakis, of Sioux City, for appellant.

Shull, Marshall, Marks & Vizintos, of Sioux City, for appellees.

BECKER, Justice.

Plaintiff tenant fell while descending a stairs in the premises rented from defendants. He sues for resultant injuries. At the close of all the evidence defendants' motion for directed verdict in defendants' favor was sustained. Plaintiff appeals. We reverse.

The facts are relatively simple. The second floor apartment rented by plaintiff was serviced by an inside stairway which led both to the apartment and to the attic above it. Both the landlord and the tenant used the attic and the stairs in question but the landlord's use was quite infrequent. The tenant used the stairs as a means of ingress and egress and kept them clean.

Plaintiff's exhibit makes detailed description unnecessary.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The material covering the treads was linoleum with a thin metal strip at the outer edge.

On August 4, 1966 at about 7:45 a.m. plaintiff left his apartment to go to work. He testified he fell on the fourth or fifth step:

'* * * I was not late that morning and I don't believe I was in any particular hurry as I started down the steps. I was carrying my daughter in my right arm. As I started down the steps, I turned to my right making a 90 degree right turn from the hall starting down. When my feet went out from under me I grabbed my child with both hands. I did not have anything in my left hand. My wife had almost reached the landing inside the door probably nine or ten steps ahead of me when I fell. She came back and took our daughter. * * *.'

Plaintiff's description of the stairway surface was:

'If I remember correctly the linoleum was worn a little bit. You could tell because the pattern didn't show as brightly on the surface in the middle as it did on the edges, and there was a metal strip across the front of each step. As to the texture of the steps, smooth would probably describe them there. The steps were in the same condition on the day that I fell as they were when I moved into the apartment about a year earlier, although probably in a year they were worn a little bit more. * * *.'

I. Plaintiff's third specification of negligence was a common law allegation and will be considered first. He alleged negligence in covering the treads with linoleum and metal stripping and allowing them to become worn, smooth and slippery.

The common law rule governing a landlord's duty is recognized in Stupka v. Scheidel, 244 Iowa 442, 447, 56 N.W.2d 874, 877:

'As a general rule an owner who has leased a building to another without any agreement to repair is not liable to the tenant, or to one who has entered the premises on the tenant's invitation, for personal injuries sustained by reason of their unsafe condition. However his rule does not apply where the owner retains control, or the owner and tenant have joint control, over the premises or the part thereof where the injury occurs.

'This exception to the rule is frequently invoked where an injury is caused by the condition of a hall, passageway, stairway, or elevator over which the owner, alone or jointly with the tenant, has control. Such an owner is liable to one who has been so injured after coming upon the premises by invitation from the tenant. There are other exceptions to the general rule which need not be considered here. * * *.' The duty imposed on the owner is to exercise reasonable care to maintain those portions of the premises over which he retains control in a reasonably safe condition. Coleman v. Hall, (Iowa, 1968) 161 N.W.2d 329, 333.

The court held there was sufficient evidence to show the owner and tenant had at least joint control but held the evidence insufficient on the question of negligence. We agree. The statement that the linoleum was worn a little bit, the pattern was not as bright on the surface in the middle as on the edges and the linoleum was smooth does not, without more, show an unreasonably dangerous condition.

II. This same deficiency of evidence is apparent as to plaintiff's second specification which is based on violation of a city ordinance. The specification read:

'(b) They failed to maintain said stairway in sound condition and in a reasonably good state of maintenance and repair in violation of subsection 7.6 of Chapter 156.7 of the Municipal Ordinances of the City of Sioux City, commonly referred to as the Minimum Housing Code.'

III. Dismissal of plaintiff's first specification of negligence raises more serious problems. Plaintiff alleged:

'(a) They failed to equip said stairway with at least one handrail in violation of subsection 5.13 of Chapter 156.5 of the Municipal Ordinances of the City of Sioux City, commonly referred to as the Minimum Housing Code.'

The parties agreed no handrail had been provided. The city ordinance provides:

'Every exist from every dwelling shall comply with the following requirements:

'* * *

'(c) All exist stairways of four or more risers shall have at least one handrail and all stairways which are five feet or more in width, or which are open on both sides, shall have a handrail on each side;'

The ordinance contains a definition of 'exit'.

'1.11 (a) Exit. Exit is a continuous and unobstructed means of egress from a building or dwelling contained therein to a public way and shall include intervening doorways, corridors, ramps, stairways, fire escapes, courts and yards.'

The trial court held no duty was created because the ordinance provides for enforcement by way of penal provisions and implied the ordinance was not intended to create a duty from which statutory civil liability would flow.

Statutes are frequently silent as to whether or not the standards contained therein are meant to apply to civil negligence cases. The problems posed by such statutes are often far more complex than a surface view would indicate. Prosser, Law of Torts, Third Ed., § 35; Thayer, Public Wrong and Private Action, (1913) 27 Harvard L.Rev. 317; Lowndes, Civil Liability Created by Criminal Legislation, (1932) 16 Minn.L.Rev. 361; Morris, The Relation of Criminal Statutes to Tort Liability, (1933) 46 Harvard L.Rev. 453.

We have heretofore been called upon to decide whether principles adopted in legislative enactments are to be applied to civil cases. In Lattner v. Immaculate Conception Church, (1963) 255 Iowa 120, 129, 130, 121 N.W.2d 639, 645, we said:

'It must be admitted the primary purpose of these statutes appears to be protection from fire hazards. Also that there is much authority for the view the violation of a statute does not amount to negligence unless the plaintiff was a member of the class the statute is designed to protect and the harm is one the enactment is designed to protect. 38 Am.Jur., Negligence, sections 162, 163, pages 832, 833; 65 C.J.S. Negligence § 19e(2) and (4), pages 422--424. We are cited to no Iowa decision which holds to this view and our cases are to the contrary.

'The leading decision in Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277, 45 A.L.R. 498, where plaintiff was injured in a collision between his automobile and defendant's boar, running at large on the highway in violation of our statute requiring certain male animals to be restrained. The opinion recognizes the statute was designed primarily to protect owners of female animals from damage that would result from undesired or inferior breeding and calls attention to an earlier decision that with respect to such damage the owner of the male is bound at his peril to restrain it from running at large.

'The opinion observes (page 1012 of 201 Iowa 208 N.W. 277): 'A general statutory duty is ordinarily for the benefit of all persons who are likely to be exposed to injury from its nonobservance.' It goes on to hold defendant was prima facie negligent and the question of his negligence was, as ordinarily, one of fact for the jury.

'An earlier precedent, Stewart v. Wild, 196 Iowa 678, 681, 195 N.W. 266, involved a similar question. Plaintiff was injured from a collision of his automobile with defendant's hog, running at large on the highway in violation of statute. The trial court held plaintiff's petition demurrable. The controlling reason for the ruling was 'That such statute has no application to the rights of a traveler upon the highway, and that it imposes upon the owner of swine no duty with reference to such highway travel.' We held this view was erroneous and 'If the duty be imposed, then a breach of it is actionable if it result proximately in injury to another; and this equally true whether the duty be imposed by common law or by statute."

In addition to the Lattner case, supra, this court has held violation of a statute to be either negligence per se or prima evidence of negligence in numerous other cases. Haines v. Welker & Co., (1918), 182 Iowa 431, 434, 165 N.W. 1027 (wrongful garnishment); Kisling v. Thierman, (1936) 214 Iowa 911, 243 N.W. 552 (violation of the law of the road); Smith v. Chicago, B. & Q.R. Co., 227 Iowa 1404, 291 N.W. 417 (failure of train to whistle for crossing). Cf. Osborne v. Van Dyke, (1901) 113 Iowa 557, 85 N.W. 784 (plaintiff injured while defendant was beating a horse). Of course, except for the one instance noted in Kisling v. Thierman, supra, violations of statutes governing operation of motor vehicles constitute negligence per se under Iowa law.

Silvia v. Pennock, (1962) 253 Iowa 779, 783, 113 N.W.2d 749, 752, states: 'Kisling v. Thierman, supra, 214 Iowa 911, 914--916, 243 N.W. 552, 554, and the many decisions which follow it hold the violation of statutory rules of the road, other than what is now section 321.298, is negligence as a matter of law unless a legal excuse for such violation is shown. * * *.'

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