Bostian v. Jewell

• Citation: 254 Iowa 1289,121 N.W.2d 141
• Decision Date: 09 April 1963
• Docket Number: No. 50996,50996
• Parties: Laura Grace BOSTIAN, Appellant, v. Ettna JEWELL, Appellee.
• Court: United States State Supreme Court of Iowa

Page 141

121 N.W.2d 141

254 Iowa 1289

Laura Grace BOSTIAN, Appellant, v. Ettna JEWELL, Appellee.

No. 50996.

Supreme Court of Iowa.

April 9, 1963.

Westfall, Laird & Burington, Mason City, for appellant.

Brown, Dresser, Kinsey & Jolas, Mason City, for appellee.

LARSON, Justice.

As plaintiff, a tenant in defendant's apartment house, stepped from the interior hallway door to a common court or patio which led to the street, she slipped upon a patch of ice, fell, and was injured. It is undisputed that the defendant was the owner of the premise and retained possession and control of the hall and passageway where plaintiff was injured. The ice covered an area of about three or four feet in diameter right in front of the door, had not been salted, sanded or cindered, and was very slippery. The involved hall, door, and patio were maintained by defendant, and the snow and ice were removed by members of her family or by her employees. That was a part of the service defendant expected to render for the rent paid by the tenants. She usually had sand available and would use it when she noticed it was icy in this areaway.

Plaintiff had entered the building through that door about 12:30 P.M. on March 5, 1960, and came out to get her mail about 5 P.M. She had not noticed the ice on her way in, but due to a leaky roof overhang, she had been aware of such conditions when there was dripping and the temperature was freezing. She occupied one of four apartments required to use this hall and court for ingress and egress, and lived there for ten or eleven years.

After her fall she called the landlord, was taken to a hospital for examination, and her ankle and back injuries were treated.

There had been no precipitation on the day of the accident, or the day before, and the maximum temperature over that period was 13 degrees above zero. The day previous there had been a trace of precipitation. It was plaintiff's contention this ice had formed as a result of drippings from a defective cornice, as it had off and on for the past several years, and that defendant knew of or should have known of this dangerous condition and had not used reasonable care to correct it.

Defendant contends that plaintiff knew or should have known of this danger, that it was obvious and open, that no duty to plaintiff as an invitee was breached by not immediately correcting the condition, and that she was not an insurer of plaintiff's safety while using this common way.

At the conclusion of the evidence the trial court in Instruction No. 6 told the jury that plaintiff alleged defendant was negligent in failing to use reasonable care to remove ice from the area or to put sand, ashes, or some substance on it to make it safe to walk over. It told the jury that the lessor of an apartment who retains in her control a part of the premises which is necessary to the use of the leased part, has a duty 'to use reasonable care to keep such part of the premises in her control in a safe condition.' It said, 'This duty arises when the lessor, by the exercise of reasonable care, could have discovered any dangerous condition and the risk involved therein and then requires the lessor to exercise reasonable care to make the condition safe.' It pointed out that the lessor was not an insurer of the safety of persons rightfully using such part of the premises, and said, 'the measure of his duty is only to exercise reasonable care to discover and correct dangerous conditions.' It further told the jury, 'As applied to this case, the defendant was under a duty to use reasonable care to discover dangers from ice on the approaches to the plaintiff's apartment, if any existed, and to exercise reasonable care to make the condition safe either by removing the ice or placing sand or ashes thereon' and 'If you find that the defendant failed in such duty in either respect alleged by plaintiff, then such failure would constitute negligence.'

As to the allegation of negligence in maintaining a roof, cornice and eaves so as to allow water and moisture from the roof to fall onto the doorway area and freeze, the court told the jury in Instruction No. 7 that the lessor was under a duty to exercise reasonable care to keep the exterior of the apartment in a safe condition; that while it is not an absolute duty to avoid all unsafe conditions, it 'requires the lessor to exercise reasonable care to discover any dangerous conditions and to exercise reasonable care to correct them.' As applied to this case the court told the jury 'defendant was under a duty to exercise reasonable care to discover any dangerous condition of the roof, cornice and eaves troughs, if any existed, and the risk involved therein, and to exercise reasonable care to make the condition safe', and 'If you fund that the defendant failed in such duty, then such failure would constitute negligence.'

The jury returned a verdict for plaintiff in the sum of $5,000.00 and, upon consideration of defendant's motion for judgment notwithstanding verdict and motion for a new trial, the court granted her motion for a new trial. In the latter motion, which listed six separate grounds, the court denied all except the cause listed (b) alleging that the court erred in giving Instructions No. 6 and No. 7. She contended and here contends that these instructions failed to tell the jury '(1) that a landlord's duty to his tenant is to use reasonable care to keep the premises reasonably safe; (2) that such duty applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls and the like, which are not obvious or known to the tenant and which would not be observed by the tenant in the exercise of reasonable care for his own safety, but which defects or hidden conditions are known, or in the exercise of reasonable care should be known, by the landlord; (3) that the duty owed by the landlord to his tenants is owed to such tenants, and to such tenants only, who do not know, or who in the exercise of reasonable care for their own safety have no reasonable means of knowing, of such defects or dangers; (4) that a tenant assumes all known, normal, obvious or ordinary risks attendant on the use of the premises; (5) that the liability of a landlord to his tenant for negligence in failing to keep the premises reasonably safe for the tenants' contemplated use is based upon a superior knowledge on the part of the landlord concerning the danger, and that there is no liability on the part of a landlord to his tenant for injuries to the tenant from a danger which is as well known to the injured tenant as such danger is known to the landlord, or which danger is obvious or reasonably apparent to such tenant; * * *.'

Objections to the instructions given were duly and timely made, but we fail to find them meritorious. However, defendant contends correctly that if any of her grounds for a new trial were good, the order for a new trial should be allowed to stand, even if we do not agree with her contention as to error in Instructions No. 6 and No. 7. Her most vigorous contention, other than as to these instructions, is that the court erred in admitting over proper objection the opinion testimony of Dr. C. O. Adams as to possible future consequences and effects of plaintiff's subsisting injury or condition, including possible future surgery, its cost, and the cost of hospitalization. To a lesser degree defendant also complains of Instruction No. 9 and its adequacy on the issue of contributory negligence. We shall consider these contentions in that order.

I. Negligence is predicated upon an unperformed duty. The difficulty encountered by the trial court here was as to the care required of a landlord to discover and correct defects in common ways provided for the use of his tenants and their guests. Its confusion was not dissolved by some statements of text writers, reference books, and even our opinions that the tenant occupied the position of an invitee as to the portions of the apartment house reserved under landlord control for the beneficial use of all the tenants. In passing upon the motion for a new trial, the learned trial court said, 'In the present case it is conceded that with respect to the portion of the premises where plaintiff fell, the plaintiff is in the position of a business invitee.' (Emphasis supplied.) If that were true and no greater care was required than that to a business invitee, then indeed the care required would be only to discover and correct defects or conditions which are in the nature of traps, snares, pitfalls, and the like, which are not obvious or known to the invitee. Atherton v. Hoenig's Grocery, 249 Iowa 50, 86 N.W.2d 252; Anderson v. Younker Bros., 249 Iowa 923, 89 N.W.2d 858; Chenoweth v. Flynn, 251 Iowa 11, 99 N.W.2d 310; Warner v. Hansen, 251 Iowa 685, 102 N.W.2d 140; Denision v. Wiese, 251 Iowa 770, 102 N.W.2d 671; Vollmar v. J. C. Penney Co., 251 Iowa 1026, 103 N.W.2d 715; Robinson v. Fort Dodge Limestone Co., 252 Iowa 270, 106 N.W.2d 579; Corrigan v. Younker Bros., Inc., 252 Iowa 1169, 110 N.W.2d 246; Corkery v. Greenberg, 253 Iowa 846, 114 N.W.2d 327; Wendling v. Community Gas Company, Inc., Iowa, 120 N.W.2d 401. However, it is generally held that a higher degree of care is required in landlord-tenant common-way area matters than in ordinary business invitee cases, and the rules announced in the above cases are not applicable to the situation at hand. The intended use by the invitee is always a most important element in such matters, and in landlord-tenant cases most authorities agree that the standard of care required of the landlord is much higher than that of a business invitee or a licensee. It was so recognized by us in Primus v. Bellevue Apartments, 241 Iowa 1055, 44 N.W.2d 347, 25 A.L.R.2d 565, and that position was not altered by the cases cited above.

The duty of the lessor in retaining possession of common areas is to exercise a degree of care commensurate...