Devine v. Hollander
| Decision Date | 15 June 1960 |
| Citation | 161 A.2d 911,192 Pa.Super. 642 |
| Parties | Charlotte DEVINE v. Florence HOLLANDER, Appellant. |
| Court | Pennsylvania Superior Court |
Walsh & O'Neill, Harry P. O'Neill Jr., Scranton, for appellant.
Oliver Howell & Oliver, William J. Oliver, Scranton, for appellee.
Before RHODES, P. J., and WRIGHT, WOODSIDE ERVIN, WATKINS and MONTGOMERY, JJ.
Plaintiff (appellee), a tenant in a multiple dwelling owned by appellant recovered a jury verdict against her landlord for personal injuries sustained when she fell in an area at the rear of the building as she was returning to her home after dark. The appeal is from the order of the court below refusing appellant's motion for judgment n.o.v. and entering judgment on the verdict.
The appellant offered no evidence at the trial and, since the appellee was awarded the verdict, the testimony offered by her and all reasonable inferences therefrom must be considered in the light most favorable to her.
Appellant operated a three-story building containing a storeroom on the first floor and four apartments above. Access to the apartments was by means of two stairways one inside the building and one outside. The outside one ran alongside the building from the street up to the second floor level. From there it was necessary for a person using same to cross a small yard to the back porch on that level, from which another set of stairs rose to the third floor apartment occupied by appellee. Appellee used the outside passage regularly day and night rather than the inside one because the latter was steeper and involved more steps, which affected her health and caused her to have a shortness of breath when she used same.
Appellee described the conditions of the yard area that she was required to cross to reach her apartment as being washed out rough, with gravel and rocks, and containing two large stones, one being eleven by eight inches in dimension and protruding three to four inches out of the ground, the other being six by seven inches and protruding one and one-helf to two inches out of the ground, and both located near a single concrete step which led up to the porch. The distance which she was required to travel between the corner of the building and the porch step was about four feet. The condition of this area was about the same from the time she moved into the premises in the fall of 1956 until the night she fell, March 30, 1957.
There was a light on an extension bracket at the top of the steps running along the building which illuminated those steps, as well as part of the yard area, and which was burning on the night of the accident. A light on the porch which could be turned on by appellee and other tenants when needed was also available. This light was not on when appellee fell, she not having turned it on when she left her home and not having reached the pull string which controlled it before she fell. The lighting conditions at the scene of her fall were testified by her as follows:
'By Mr. Oliver:
Appellee was the only witness to her accident because she was alone at the time. The substance of her testimony was that, as she was returning to her home from church with a pocketbook and a bag of groceries at about 8:40 p. m. on March 30, 1957, she encountered the stone or stones and, However, this night she struck it and either tripped or slipped on it, causing her to fall.
There appears to be sufficient evidence on which the jury could base a finding that defendant was negligent in permitting two stones to protrude one and onehalf to four inches above ground at or near the point appellee would likely undertake to step upon the concrete step preparatory to mounting the porch floor, which point was in the direct route over the yard from the last step in the flight alongside the building to the porch. Appellant either knew about the condition or had constructive notice of its existence. Therefore, it was her duty as the one in control of that area of the property to make the area reasonably safe for the use intended for it by her tenants, including appellee.
The duty of a landlord of a multiple-tenant building, reserving control of the common approaches, such as sidewalks, passageways, etc., or parts of the building common to all tenants, such as the roof and walls, is to keep such approaches and parts reasonably safe for the use of tenants and their invitees and a landlord becomes liable where he either had actual notice of a defective condition therein or was chargeable with constructive notice, because had he exercised reasonable inspection he would have become aware of it. Lopez v. Gukenback, 391 Pa. 359, 137 A.2d 771. See also Restatement, Torts, § 360. This duty is applicable to paths, yards, unimproved roads, etc., as well as to those which have been improved. Restatement, Torts, § 360, comment c; Coles & Coles v. Schweppenheiser, 83 Pa.Super. 490.
The major issue in this case, however, is whether or not the lessee's (appellee) knowledge of this existing condition bars her recovery. The ordinary rule in cases of this nature is stated in Simmonds v. Penn Fruit Company, 354 Pa. 154, 158, 47 A.2d 231, 232, as follows 'Ordinarily 'no liability attaches for injuries from alleged dangers or defects which were obvious or known to the person injured, for, all that the law requires is that the premises be so constructed and maintained that they can be used without danger by persons using ordinary care for their own safety.'' However, notice of a defect is not always a bar to recovery and the ordinary rule...
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