80 A.2d 534 (Vt. 1951), 1783, Agosta v. Granite City Real Estate Co., Inc.

Docket Nº:1783.
Citation:80 A.2d 534, 116 Vt. 526
Opinion Judge:CLEARY, Justice.
Party Name:AGOSTA v. GRANITE CITY REAL ESTATE CO., Inc.
Attorney:Robert H. Ryan, Montpelier, for plaintiff. Finn & Monti, Barre, for defendant.
Judge Panel:Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS, and BLACKMER, JJ.
Case Date:May 01, 1951
Court:Supreme Court of Vermont
 
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Page 534

80 A.2d 534 (Vt. 1951)

116 Vt. 526

AGOSTA

v.

GRANITE CITY REAL ESTATE CO., Inc.

No. 1783.

Supreme Court of Vermont.

May 1, 1951

         Action by Carmella Agosta against Granite City Real Estate Co., Inc., in tort for negligence of defendant in maintaining unlighted stairway down which plaintiff fell and was injured. The County Court of Washington County, James S. Holden, P. J., overruled defendant's demurrer to complaint, and defendant took exceptions. The Supreme Court, Cleary, J., held that allegations of complaint showed no duty owing from defendant to plaintiff since facts did not show that stairway was so constructed as to require light to be reasonably safe for those rightfully using it or that there was contractual or statutory obligation on landlord to light common hallway.

         Order overruling demurrer reversed, and cause remanded.

         Where plaintiff's complaint for personal injuries stated that she was injured when she fell down unlighted stairway after visiting tenant in defendant's building late at night and that she proceeded down stairs in the exercise of due care and prudence, there was averment of freedom from contributory negligence sufficient as against demurrer.

Page 535

         [116 Vt. 527] Robert H. Ryan, Montpelier, for plaintiff.

          Finn & Monti, Barre, for defendant.

          Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS, and BLACKMER, JJ.

         [116 Vt. 528] CLEARY, Justice.

         This is an action of tort for negligence. The defendant filed a demurrer to the plaintiff's complaint. Upon hearing the demurrer was overruled, the defendant was allowed exceptions, and the cause passed to this Court before final judgment under and by virtue of V.S. 1947, § 2124.

         The complaint alleges that the plaintiff entered a building owned by the defendant at 11 o'clock P.M. on July 3, 1948, to visit a person who had an apartment on the second floor in the building and, at the time she entered the apartment building, the hallways, stairs, and porch were fully lighted; unknown to the plaintiff, the lights were controlled by an automatic switch under the control of the defendant, which automatic switch turned the lights off at 1 o'clock A.M.; the plaintiff left the apartment at 1:30 o'clock A.M. on July 4, 1948, and found the hallways, stairways and porch to be in complete darkness, the lights having been turned off by the automatic switch under the control of the defendant; the plaintiff necessarily had to return to her home and had no alternative but to proceed along the darkened hallways and stairways; as a result of the turning off of the lights and the consequent darkened hallways and stairways the plaintiff fell down the stairs of the flight leading to the second floor and was carried by the force of her fall across the porch in the front of the house and down the porch stairs; the plaintiff at all times material was in the exercise of due care, and as a result of the fall the plaintiff was severely injured.

         The grounds of the demurrer are that the complaint shows no duty owed the plaintiff by the defendant, fails to show any lack of duty to the plaintiff, fails to state any facts which constitute negligence of the defendant, conclusively shows that the plaintiff assumed the risk of injury and was guilty of contributory negligence.

          Our law is well settled that before liability attaches for negligence a duty must arise on the part of the party charged toward the party injured. Coburn v. Village of Swanton, 94 Vt. 168, 170, 109 A. 854; Terrill v. Spaulding, 115 Vt. 342, 346, 61 A.2d 611; Trudo v. Lazarus, 116 Vt. 221, 223, 73 A.2d 306.

          The defendant's brief concedes that a specific allegation of a legal duty need not be made. Brothers' Adm'r v. Rutland R. R. Co., 71 Vt. 48, 50, 42 A. 980. It is sufficient that the facts alleged show such a duty. It is elementary that the facts from which the duty arises must be alleged so the court may see that the duty exists. Kennedy v. Morgan, 57 Vt. 46, 48. But the duty inferable therefrom [116 Vt. 529] is a conclusion of law and need not be alleged. Dent, Adm'r v. Bellows Falls & Saxton R. Ry., 95 Vt. 523, 534, 116 A. 83.

          If the manner in which the stairways and hallways were constructed and maintained required that they be lighted in order to be reasonably safe for those rightfully using them then it was the duty of the defendant to so light them. Wool v. Larner, 112 Vt. 431, 437, 26 A.2d 89. The complaint in the present case contains no such allegation. The general rule is that in the absence of a statute or a contractual obligation,

Page 536

a landlord has no duty to light common hallways and stairways.52 C.J.S., Landlord and Tenant, § 417, p. 33; 32 Am.Jur., p. 576; 25 A.L.R. 1312; Hawes v. Chase, 84 N.H. 170, 147 A. 748; Lengas v. Resnick, 87 N.H. 161, 175 A. 824; Carey v. Klein, 259 Mass. 90, 92, 155 N.E. 868; Sodekson v. Lynch, 298 Mass. 72, 9 N.E.2d 372; Rietzel v. Cary, 66 R.I. 418, 19 A.2d 760, 762.

         We have no such statute and the complaint does not allege any contractual obligation. The only duty which, by implication, could be said to be charged to the defendant under the complaint...

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