Cummings v. Prater
Decision Date | 24 October 1963 |
Docket Number | No. 7115,7115 |
Citation | 95 Ariz. 20,386 P.2d 27 |
Parties | Marie L. CUMMINGS, Appellant, v. Eva PRATER, Appellee. |
Court | Arizona Supreme Court |
Charles Christakis, Phoenix, for appellant.
Gust, Rosenfeld & Divelbess, by Frank E. Flynn, Phoenix, for appellee.
Appellant was plaintiff in a suit for personal injuries. Summary judgment was entered for defendant and it is from that judgment that plaintiff appeals.
Considering the motion for summary judgment, this Court must take that view of the evidence most favorable to the plaintiff and give the plaintiff the benefit of all favorable inferences that may be reasonably drawn from the evidence. If, when viewed in this manner, the evidence is such that reasonable men might reach different conclusions as to whether there is a genuine issue as to any material fact the judgment must be reversed. Harbour v. Reliable Insurance Company, 94 Ariz. 344, 385 P.2d 220.
Plaintiff had rented an apartment from defendant on an oral lease and moved in the first week in September, 1957. She had been in the apartment three or four days before the accident. The apartment had a side door opening on to a path which led to an alley where the garbage cans were located. Plaintiff had not previously used the side door. On the path were a series of concrete slabs. The first of these slabs was close to the step from which one would step down to the path from the side door. It was irregular in shape and its edges were worn and jagged. It was several inches higher than the level of the path.
A little after 11:00 p. m. on the night of the accident, plaintiff went out the side door for the first time. She was on her way to put garbage in a can in the alley. The only light there was came from a street lamp in the alley. While it was not pitch dark, the lighting was extremely dim. Plaintiff was injured when she stepped down to the path and fell over the concrete slab. She had not examined the premises carefully and had no previous knowledge of the existence of the slab.
In his order granting the summary judgment the trial judge ruled:
In its inception, the general rule was that in the absence of an express contract a tenant took the demised premises as he found them and the maxim caveat emptor (or more precisely caveat lessee) applied. Middleton v. Green, 35 Ariz. 205, 276 P. 322; 2 Underhill on Landlord and Tenant, Sec. 477. As it was put by an English judge in Robbins v. Jones, 15 C.B.N.S. 221, 240, 143 Eng.Rep. 768, 776 (1863):
'* * * There is no law against letting a tumbledown house.'
This stringent rule was and is an exception to general negligence law but has been relaxed in many jurisdictions, including Arizona.
In Middleton v. Green, 35 Ariz. 205, 209-210, 276 P. 322, 324, recently cited with approval by us in Spain v. Kelland, 93 Ariz. 172, 379 P.2d 149, where we adopted the 'public use' doctrine and imposed liability on a landlord for negligent condition of the premises, we said:
'* * * This is the general rule, but to it there is a well-recognized exception * * * and is stated by Underhill on Landlord and Tenant, Vol. 2, page 792, * * *. 'The landlord who lets the premises in a dangerous condition * * * may be liable for injuries resulting from the dangerous condition * * *. The rule * * * extends to any unsafe or dangerous condition of the premises. Thus, the owner of premises who, knowing them to be unsafe and dangerous, demises them in that condition without providing for their repair will be liable for damages which are caused by the injury * * *.''
The theory of liability in the Middleton case was 'nuisance' rather than negligence. 1 In city of Yuma v. Evans, 85 Ariz. 229, 234, 336 P.2d 135, 139, we said:
'It is the general rule that a landlord may not be charged with responsibility for defective condition unless he had actual knowledge of the condition, or that it has existed for such a period of time as to justify the conclusion that, in the exercise of ordinary care, he should have known of its existence within such time as would have given him a reasonable opportunity to make repairs.' (Emphasis added)
But in Johnson v. O'Brien, 258 Minn. 502, 504-507, 105 N.W.2d 244, 246-247, 88 A.L.R.2d 577, the Court said:
'* * * the liability of a landlord 'is not restricted to those instances where the lessor has actual knowledge of the dangerous condition of the premises, but includes those cases where he has information which would lead an ordinarily reasonable man to suspect that danger exists,' * * * 'The liability for concealing or failing to disclose a dangerous condition unknown to the lessee is based on the theory of engligence.'' (Emphasis added)
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* * *
'We agree with the trial court that 'To require one to use that care which an ordinarily prudent person would exercise under the same or similar circumstances can hardly be onerous, unreasonable or oppressive.''
The Court then overruled previous Minnesota cases as follows:
'To the extent that the rule in these cases might be interpreted as meaning that only actual knowledge of defects on leased premises constitutes a prerequisite to the liability of a landlord, they are expressly overruled.'
See also Freitag v. Evenson, Or., 375 P.2d 69, 70.
2 Harper and James, The Law of Torts, Sec. 27.16 expresses the following rule as most consistent with general negligence theory:
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'It is not therefore surprising to find a tendency among cases in the present field to hold a landlord who knows of the conditions that later cause injury, and has good reason to suspect their potentiality for harm, for his nondisclosure of the situation even though he himself believes it to be safe.'
And see Prosser Law of Torts, Sec. 80; Restatement of Torts, Sec. 358, Comment a, Illustration. We think this to be the modern rule 2 most consistent with withdrawing special protection from tort liability where the social and economic reasons for that protection no longer exist. 3
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'Ignorance seems hardly the goal to set for the landlord'. Note, Landlord and Tenant: Defects Existing at the time of the Lease, 35 Ind.L.J. 361, 369, 372 (1960). 4
We hold, therefore, that the landlord is under a duty of ordinary care to inspect the premises when he has reason to suspect defects existing at the time of the taking of the tenancy and to either repair them or warn the tenant of their existence. 5 In other words he is under the duty to take those precautions for the safety of the tenant as would be taken by a reasonably...
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