Brandt v. Rakauskas

• Decision Date: 31 July 1930
• Citation: 151 A. 315,112 Conn. 69
• Court: Connecticut Supreme Court
• Parties: BRANDT v. RAKAUSKAS.

151 A. 315

112 Conn. 69

BRANDT v. RAKAUSKAS.

Supreme Court of Errors of Connecticut.

July 31, 1930

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by Lucy E. Brandt against John Rakauskas, to recover damages for personal injuries alleged to have been caused by negligence of defendant, who was plaintiff's landlord. Verdict and judgment for plaintiff, and defendant appeals.

No error.

William B. Hennessy and Jessie Devine, both of Waterbury, for appellant.

Max R Traurig and Carroll C. Hincks, both of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

BANKS J.

The plaintiff occupied as tenant the second floor of a two-family house owned by the defendant, who himself lived on the first floor. The rear entrance to the second floor tenement was by way of a stairway from a rear veranda on the first floor to a rear veranda on the second floor. There were two wooden steps built into the rear veranda on the first-floor at the foot of which there was a slab of concrete or cement about three feet by two and a half feet set upon the earth, which together with the two steps furnished the approach to the rear veranda used by the occupants of both floors to reach their respective tenements from the rear. The plaintiff claimed that as she was coming down from her apartment to the rear yard of the premises she stepped upon this slab, which was cracked and the earth under one corner of which had been washed out by the rain, and that the slab broke off, causing her to fall and receive the injuries of which she complains. The defendant appeals from the denial of his motion to set aside the verdict in favor of the plaintiff and for claimed errors in refusing to charge the jury as requested and in the charge as given.

The complaint alleged that the slab of concrete which was alleged to be defective was not a part of the premises leased to the plaintiff but was retained in the control of the landlord for the common use of all the tenants of the house. The court charged the jury that upon the question of the defendant's duty to keep this slab in a safe condition, the test was not so much whether it furnished a common approach to both tenements, as it was whether or not the defendant retained control of it, and while expressly stating that the jury were not to be governed by his opinion, told them that he thought they would be justified in finding from the evidence that the slab was within the control of the defendant. The generally accepted rule that, while a landlord is not bound to keep in repair the premises demised in a lease, that duty does rest upon him as to passageways, halls, or other portions of the premises reserved for the common use of several tenants, is based upon the fact that such portion of the premises is not a part of the leasehold estate of any tenant but is retained by the landlord under his own control. The ultimate question was, therefore, as the court correctly told the jury, whether or not this cement slab was a portion of the premises covered by the plaintiff's lease. That there were no other tenants, aside from the landlord and the plaintiff, and therefore no common use of this approach by a number of tenants, does not require the conclusion that it was not the landlord's duty to keep it in repair. Gibson v. Hoppman, 108 Conn. 401, 407, 143 A. 635. Upon the undisputed physical facts this cement slab was obviously designed and used as a common approach to the two tenements in this house, and the only permissible conclusion that could be reached upon the evidence was that it was not a part of the leased premises but was retained by the landlord under his control. The court quite properly told the jury that they would be justified in so finding.

The plaintiff testified that she had been a tenant in this house for more than a year at the time of the accident, and that the slab had been cracked ever since she moved into the house. The defendant's motion to set aside the verdict was based in part upon his claim that upon these facts the plaintiff had assumed the risk of a defect in the premises which was in existence when she rented them, and he also predicates error upon the failure of the court to charge the jury upon the doctrine of assumption of risk. The defendant did not request the court to charge the jury upon the doctrine of assumption of risk, and upon the undisputed facts of the case the plaintiff did not assume the risk of injury arising from a defect in this cement slab. Ordinarily the landlord is not liable for an open, visible and dangerous structural condition in the leased premises, in existence when the tenant took possession. As to such an existing condition the tenant assumes the risk, since he takes the premises as he finds them except for secret structural defects unknown to him but known to the landlord. Valin v. Jewell, 88 Conn. 151, 156, 90 A. 36, L.R.A. 1915B, 324. This is the rule applicable to demised premises which under the lease pass from the control of the landlord to that of the tenant. It has also been held that the tenant is deemed to have assumed the risk of the structural condition of the building as it would appear to be to a person of ordinary observation when his tenancy began, and therefore that the landlord is under no obligation to make structural changes to remedy obvious defects in the plan of construction. See authorities cited in Gibson v. Hoppman, supra, page 410 of 108 Conn., 143 A. 635, 638. In Massachusetts and a few other jurisdictions, the liability...