Davis v. Marr, 21213
| Decision Date | 02 May 1966 |
| Docket Number | No. 21213,21213 |
| Citation | 413 P.2d 707,160 Colo. 27 |
| Parties | Earl C. ADVIS, Plaintiff in Error, v. Delia MARR, Defendant in Error. |
| Court | Colorado Supreme Court |
Eugene O. Bird, Colorado Springs, for plaintiff in error.
James E. Trater, Weldon M. Tarter, Colorado Springs, for defendant in error.
The parties to this action will be referred to by name or as they appeared in the trial court wherein Earl Davis was the defendant in a personal injury action brought by the plaintiff, Delia Marr.
On a spring afternoon sometime in May, 1961, plaintiff inspected a surplus army barracks which had been converted into a house and which was being offered for rent by the defendant.
According to plaintiff's testimony, she and the defendant discussed the possibilities of his renting the house to her. As the negotiations developed, plaintiff noticed that the back steps of the house were in a defective condition. In particular, the stairs consisted of four steps set in a block of concrete. The steps themselves were 10 inches in width and had 7 inch risers. In some manner the steps had been dislodged and pushed partially underneath the porch with the result that the top step was reduced from its original width of 10 inches to approximately 4 1/2 to 5 inches.
The plaintiff testified that when she brought the condition of the steps to the defendants' attention, the latter replied, 'We will fix it.' Later that evening, plaintiff returned with her husband in order that he might inspect the premises. Plaintiff's husband informed defendant that they would like to rent the house but were hesitant in light of the condition presented by the back steps. Again the defendant replied that he would fix the back steps. Plaintiff stated that it was with this understanding that she agreed to rent the house. The steps were never repaired.
A short time after plaintiff moved into the house, she had occasion to carry out some laundry through the back door. As she set the basket down, she slipped and was injured. Her contention was that she had slipped because the step was not wide enough to provide her foot with sufficient support at the place she stepped. Thereupon, plaintiff brought suit against Davis and alleged that her injuries were the proximate result of a dangerous condition maintained on the premises, and moreover, that such condition was known to the defendant or should have been known to him.
Upon trial of the case, a jury returned a verdict in favor of the plaintiff and the court entered judgment thereon.
Defendant seeks to reverse the judgment of the lower court and makes four assignments of error:
1. The trial court erred in giving Instruction No. 2, which defendant contends was an erroneous statement of the law as applied to the facts of the case.
2. The trial court erred in giving Instruction No. 3 for the same reason as assigned with respect to Instruction No. 2.
3. The trial court erred in refusing to give defendant's tendered Instruction No. 1.
4. The trial court erred in denying defendant's motion for a directed verdict at the close of plaintiff's case, and in overruling defendant's motion for judgment notwithstanding the verdict.
Instruction No. 2, given by the court, stated as follows:
'If you find by a preponderance of the evidence that the condition of the steps was dangerous and likely to cause injury and existed at the time the Marrs rented the house and Mr. Davis knew of the condition or should have known of the condition and such dangerous condition did in fact proximately cause the injury to Mrs. Marr, then you should find for the plaintiff, and determine her damages, if any.'
Generally, when a prospective tenant has had an opportunity to inspect the condition of the premises sought to be rented, and any defects existing thereon are patent or obvious to the tenant's observation, the law exempts the landlord from liability for injuries to the tenant as a result of the defect. Davidson v. Fischer, 11 Colo. 583, 19 P. 652. In the absence of the landlord's covenant to repair, the tenant is said to have assumed the risk of loss or injury when he enters into defective premises and has had means of information equal to that of the landlord. Spicer v. Machette, 59 Colo. 214, 147 P. 657. See also Colorado Mortgage and Investment Co. v. Giacomini, 55 Colo. 540, 136 P. 1039, L.R.A. 1915B,...
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...court has basically adhered to the common law rule with respect to leases of both a business and a residential nature. In Davis v. Marr, 160 Colo. 27, 413 P.2d 707, it was 'Generally, when a prospective tenant has had an opportunity to inspect the condition of the premises sought to be rent......
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