City of Fairbanks v. Schaible

• Decision Date: 10 August 1962
• Docket Number: 113,Nos. 112,s. 112
• Parties: CITY OF FAIRBANKS, a municipal corporation, Appellant, v. Arthur J. SCHAIBLE, Executor of the Estate of Druska C. Schaible, and The Lathrop Company, Appellees. The LATHROP COMPANY and The City of Fairbanks, Appellants, v. Arthur J.SCHAIBLE, Executor of the Estate of Druska C. Schaible, Deceased, Appellee.
• Court: Alaska Supreme Court

Page 201

375 P.2d 201

CITY OF FAIRBANKS, a municipal corporation, Appellant, v. Arthur J. SCHAIBLE, Executor of the Estate of Druska C.

Schaible, and The Lathrop Company, Appellees.

The LATHROP COMPANY and The City of Fairbanks, Appellants, v. Arthur J.SCHAIBLE, Executor of the Estate of Druska C.

Schaible, Deceased, Appellee.

Nos. 112, 113.

Supreme Court of Alaska.

Aug. 10, 1962.

Rehearing Denied Oct. 22, 1962.

Charles J. Clasby and Mary Alice Miller, of Collins & Clasby, Fairbanks, for City of Fairbanks.

Robert Boochever, Faulkner, Banfield, Boochever & Doogan, Juneau, William V. Boggess, Fairbanks, for Lathrop Co.

Robert A. Parrish, Fairbanks, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

DIMOND, Justice.

Druska Schaible died of asphyxia on November 23, 1957, during a fire in the Lathrop building where she and her husband had an apartment. As her executor her husband brought a wrongful death action under an Alaska statute ¹ against the Lathrop Company and the City of Fairbanks. In a case tried by the court judgment in the sum of $50,000 was entered for the executor jointly and severally against the Company and the City, and both have appealed.

I. The Lathrop Company Appeal.

The Lathrop building was a four-story reinforced concrete structure, with apartments on three floors. It contained a dumb-waiter shaft which was used mainly to carry garbage cans from the upper floors to the basement. The building was ventilated by a system of connecting ducts which led into the kitchen, bathroom and clothes closet of each apartment.

The fire was started between 5 and 5:30 p. m. when a child deliberately lit a box of trash located by the dumb-waiter door on the second floor. It spread to the third floor, burning with great intensity the wooden wainscoting up the stairs and along the hallway, and creating a large amount of smoke.

The court concluded that the Lathrop Company, owner of the building, was grossly negligent and that this was the proximate cause of Mrs. Schaible's death. That conclusion was based upon two findings: (1) that the Company knew or ought to have known the ventilating system was a fire hazard, and had failed to use reasonable care to clean and maintain it in a safe condition; and (2) that the Company knew or ought to have known that the dumb-waiter shaft and its surrounding walls were dangerous in the event of fire, and had failed to maintain them in safe condition.

1. The Ventilating System.

In support of the findings and judgment below, the executor argues that the Company retained sufficient control over the ventilating system so as to be charged with the duty of maintaining it in a reasonably safe condition; that it breached that duty by permitting, over a period of years, waste material and grease to accumulate throughout the metal flues; and that this resulted in the system being unsafe in the event of fire.

Assuming that such a condition existed and that failure to clean the flues would amount to negligence, one more element of a tort was required to be established by the executor before there could be liability. That was causation. He had the burden of proving that an unsafe condition of the ventilating system was more likely than not a substantial factor in causing decedent's death. ²

There are three items of evidence relied upon by the executor to establish this element of his case. The first is the testimony of the witness Lundgren who related what he observed regarding the venting system after the fire:

'Q. In the course of your cleaning up the Lathrop Building after the fire did you observe the venting system?

'A. Yes.

'Q. Will you describe it, please?

'A. There was one main trunk----

'Q. Where did the main trunk travel?

'A. Through all the apartments. As I remember it there was regular ventilation ducts and then there was also the ducts that ran into the kitchens.

'Q. Did you observe these ducts after the fire?

'A. Yes.

'Q. Will you describe what you observed?

'A. Obviously the large ducts there'd been accumulation of wastes of types that burned--there had been fire in all the ducts, and they were badly charred. The main duct, a part of it was broken open. It must have been from an explosion.

'Q. When you say 'broken open,' what do you mean?

'A. Spread apart at the seams. The seams had been crimped and then soldered and the soldering had naturally come loose, but the crimping should never have come loose without some kind of an internal explosion.'

Next is the statement of a witness that shortly after the fire the kitchen in decedent's apartment was 'pretty well smoked up'. Finally, there is the testimony of witnesses outside the building during the fire who observed a puff of black smoke come out of decedent's apartment window, followed almost immediately by her collapse at that window.

From this evidence the executor argues there is a 'clear inference' that the heat and fire caused the ventilating ducts to explode, and that this in turn caused great quantities of deadly smoke to be discharged into decedent's apartment. This may have happened. But it is not an inference, which is a conclusion logically derived from established facts. Rather, it is an opinion based primarily on conjecture.

The witness Lundgren was a contractor. He had done maintenance work for the Lathrop Company and was generally familiar with the building that burned, and had worked in cleaning it after the fire. But he did not purport to have any expert knowledge or training or experience relating to fires or to the likelihood of smoke being forced through the ducts into Mrs. Schaible's apartment by reason of a explosion occurring at some place within the ventilating system. In fact, he did not even specify where the explosion took place. It is nothing more than supposition to conclude that an explosion within the ventilating system at some undesignated location in the building caused smoke to travel through the ducts into Mrs. Schalible's apartment, and that this was the smoke observed from outside the building which apparently caused her death.

That the asphyxia was caused by smoke from the venting system is possible. But it is at least equally possible that the smoke came not from there but rather from the hallway and then through the apartment doorway. The walls along the stairs and hallways were convered with plywood wainscoting, and a witness observed that the fire was concentrated and burning intensely in this wainscoting and up the stairs from the second to the third floor where decedent's apartment was located. An occupant of the apartment next to decedent's testified that the fire was in the hall, that the hall was full of smoke, and that smoke was coming in her apartment around the sides of the door. There was evidence that Mrs. Schaible's apartment door had been opened during the fire. There was no testimony that smoke came out of the vents in any of the apartments.

A mere possibility of causation is not enough. When the matter remains one of conjecture, as it does here, the trial court must find against the party carrying the burden of proof. ³ We hold that the court below was clearly erroneous in finding that the asphyxia was caused by smoke from the venting system.

2. The Dumb-waiter Shaft.

An inference that the fire reached the third floor via the dumb-waiter shaft, in addition to going up the stairway, may have been justified since there was evidence that the fire started up against the wooden door to the dumb-waiter on the second floor and that the entire shaft between the two floors was destroyed. Whether or not there is a further inference of a causal connection between the burning of the shaft and Mrs. Schaible's death is unnecessary to decide. The reason is that the trial court was mistaken in finding the Company had breached a duty owed to decedent by failing to keep the shaft in a safe condition.

Generally a landlord is not liable for injuries to a tenant caused by a dangerous condition which existed when the tenant took possession of the leased premises. ⁴ There are exceptions to this rule, one of which is the failure of the landlord to reasonably maintain in a safe condition a part of the premises retained in his control and which the lessee is entitled to use in connection with the part leased. ⁵ This exception has been extended to hallways, stairs, elevators, basements, bathrooms, porches, dumbwaiters, and other parts of premises maintained for the benefit of a tenant within the purposes of the lease. ⁶

Where this exception to the rule of non-liability applies, there must first exist a dangerous condition involving an unreasonable risk, and then a duty on the part of the landlord to correct the condition. ⁷ Here the executor specifies the only dangerous condition and unreasonable risk as being the material of which the shaft and dumb-waiter doors were constructed--of wood rather than of a material that was non-inflammable. Of necessity, then, he would charge the Lathrop Company with the duty of reconstructing the dumb-waiter to make it fire-proof.

The Company's duty to its tenants does not extend that far. The type of construction was apparent to decedent when she moved into the apartment; it was not a concealed hazard. She assumed the inherent risk to the same extent as one would assume the risk of fire spreading by means of a wooden stairway. ⁸ The Company was not required to construct the dumb-waiter shaft in such a manner as to insure against the spread of fire. No ordinance or statute imposed that duty, and there was none imposed at common law. ⁹ All that decedent had the right to demand was that these premises be maintained in a condition not more hazardous than they existed when she began her tenancy. There is no evidence that the Company breached its duty in that respect. There was no basis here for imposing liability on the Lathrop Company for decedent's death.

3. Failure to Warn.

In their briefs on this appeal both parties...