Eggers v. Wright

• Court: Indiana Appellate Court
• Writing for the Court: SMITH
• Citation: Eggers v. Wright, 240 N.E.2d 79, 143 Ind.App. 275 (Ind. App. 1968)
• Decision Date: 16 September 1968
• Docket Number: No. 20652,No. 2,20652,2
• Parties: Myrtle M. EGGERS, Appellant, v. Robert H. WRIGHT and American Fletcher National Bank and Trust Company, Co-Executors of the Estate of Horace O. Wright, Jr., Appellees

Page 79

240 N.E.2d 79

143 Ind.App. 275

Myrtle M. EGGERS, Appellant, v. Robert H. WRIGHT and American Fletcher National Bank and Trust Company, Co-Executors of the Estate of Horace O. Wright, Jr., Appellees.

No. 20652.

Appellate Court of Indiana, Division No. 2.

Sept. 16, 1968.

Rehearing Denied Sept. 30, 1968. Opinion Superseded 245 N.E.2d 331.

John F. Raftery, Gerald E. Stinson, Indianapolis, for appellant.

Richard Smith, John T. Hume III, and John A. Kendall, Indianapolis, for appellees; Smith & Jones, Indianapolis, Stevenson, Kendall & Stevenson, Danville, of counsel.

SMITH, Judge.

On September 30, 1966, Appellees filed herein a motion to dismiss this appeal, and on June 14, 1967, Appellees filed a motion to dismiss or affirm this appeal. The rulings on said motions were held in abeyance until the final disposition of this appeal. It is our opinion that both of said motions be overruled and that the appeal be disposed of on its merits.

This appeal involves an action for damages sustained by the appellant, Myrtle M. Eggers. The complaint prayed for damages growing out of personal injuries sustained by the appellant. The complaint alleged in substance that she fell when she stepped on a defective bottom step of a fire escape which was attached to the apartment building in which she was a tenant, and which was used as a means of ingress and egress by the tenants of the apartment building.

The issues were formed by the appellant's complaint and the answers of appellees thereto pursuant to Rule 1--3 of the Supreme Court of Indiana. The complaint alleged the following acts of negligence on the part of the appellee-landlord, Robert H. Wright, as follows:

1. The appellee-landlord, Robert H. Wright, failed to make a reasonable inspection of the premises to determine the condition of the step which gave way when the appellant stepped upon it.

2. The appellee-landlord, Robert H. Wright, failed to inspect and repair the defective step which gave way and caused the appellant's accident; and that said step which caused the appellant to fall was defective and rusted out.

3. The appellee-landlord, Robert H. Wright, either knew, or should have known, of the dangerous and hazardous condition of the step which gave way and caused the appellant to fall.

The appellees' answer was in the nature of a general denial, and set out affirmatively that a reasonable inspection of the step in question would not have disclosed its defective condition. The answer specifically denied that the appellee-landlord, Robert H. Wright, had either actual or constructive knowledge of the defective step.

The issues as formed were submitted to the court for trial without intervention of a jury. The trial court rendered special findings of fact and conclusions of law and judgment for the appellees, which special findings of fact and conclusions of law are as follows:

'The Court finds the facts specially as follows:

'1. Horace O. Wright, Jr., died testate on November 7, 1965.

'2. On November 9, 1964, American Fletcher National Bank and Robert H. Wright were duly appointed and qualified as co-executors of the estate of Horace O. Wright, Jr. by the Marion County Probate Court of Indiana. The co-executors have continued to serve in this capacity ever since.

'3. For some time prior to November 21, 1961, Myrtle M. Eggers was a tenant in a certain apartment building owned and operated by Horace O. Wright, Jr. which was located at 441 South Pine Street, Indianapolis, Marion County, Indiana.

'4. A metal fire escape, used in common by all tenants, was attached to the outside rear wall of the apartment building. Each metal step of the fire escape was bolted or riveted to an angle iron at each side of the step. The angle irons were also bolted or riveted to certain side plates of metal which are called 'stringers.' The vertical portion of each angle iron was flush with the surface of each stringer. The shaft of each belt or rivet which held the angle iron to the stringer was completely concealed by the width of the angle irons and the width of the stringers.

'5. On November 21, 1961, Myrtle M. Eggers was descending upon the fire escape from her second story apartment. When Myrtle M. Eggers stepped upon the bottom step of the fire escape, the side of the step toward the apartment building dropped down, thereby causing Myrtle M. Eggers to twist her body and sustain personal injuries. The shaft of the bolt which held the angle iron to the stringer broke as a result of rust coupled with the weight of Myrtle M. Eggers.

'6. The defect which caused the step to drop was a latent or hidden defect which could not have been discovered by a visual inspection. (Emphasis supplied.)

'7. Horace O. Wright, Jr. had no personal knowledge of the condition of the bottom step of the fire escape at any time prior to Myrtle M. Eggers' injuries.

'8. For some time prior to November 21, 1961, this bottom step has been used by other tenants on numerous occasions without incident.

CONCLUSIONS OF LAW

'The Court concludes that the law is with the Defendants:

'1. On November 21, 1961, Myrtle M. Eggers was an invitee or business licensee on the premises of the apartment building owned and operated by Horace O. Wright, Jr. (Emphasis supplied.)

'2. Horace O. Wright, Jr. was under duty to Myrtle M. Eggers to exercise reasonable care in maintaining the entire apartment building, including the fire escape.

'3. Myrtle M. Eggers failed to prove, by a preponderance of the evidence, that the defect in question was discoverable through the exercise of reasonable care.

'4. Myrtle M. Eggers failed to prove, by a preponderance of the evidence, that the defect in question existed for an unreasonable period of time prior to November 21, 1961.

'5. On the Plaintiff's First Amended Complaint, judgment should be entered for the defendants and against the plaintiff.'

The appellant contends that the now deceased landlord, Horace O. Wright, Jr., retained dominion and control over the stairway upon which the appellant fell; and that such stairway was not leased to anyone but rather was retained by said appellee-landlord for a common means of ingress and egress for tenants, custodians, deliverymen, and guests of tenants. The appellant further contends that by virtue of said appellee-landlord's retention of dominion and control over such common stairway, he rendered himself liable to anyone not a trespasser or mere licensee if he failed to repair, inspect, or maintain such common stairway if such person was injured as a proximate result of such negligent omission on his part.

In answer to these contentions, the appellees maintain that they are exonerated from liability on the ground that a reasonable inspection by the appellees would not have disclosed the defect in question; and that such defect was latent and could not have been detected by visual inspection of the stairway in the exercise of reasonable care.

The appellant maintains that no state by its judicial decisions has been found which holds that a defendant-landlord who has retained dominion and control over undemised common stairways can avoid liability to a tenant when he has both actual and constructive notice of a dangerous condition of such premises, especially when he thereafter neglects and omits to inform such tenants of said dangerous condition of the premises. The appellant further contends that in the case at bar the appellee-landlord, Horace O. Wright, Jr., had actual notice as well as constructive notice, through his agent, employee and custodian, that the step in question was defective, because he was informed by his said agent, employee and custodian some six weeks to two months prior to the time of the appellant's accident that another party had fallen on another step of the same stairway as the result of a rusted bolt which broke loose from its anchored position to the building; that notwithstanding such actual and constructive notice, which should have placed the appellee-landlord, Horace O. Wright, Jr., on notice, the appellee-landlord not only failed to repair the remainder of the steps but he never visited the premises to make an inspection of the defective stairway.

The record evidence in substance discloses the following facts:

(1) On direct examination of appellant, she testified that she lived in Apartment 3 at 441 South Pine Street, Indianapolis, Marion County, Indiana, at the time she suffered the accident described in her complaint.

(2) That she fell when the bottom step gave way.

(3) That the appellant saw other tenants as well as the custodian and his wife at various times walking on the fire escape.

(4) That the step which broke and caused her to fall was 'rotted through' or 'rusted out' and that there was rust on the building where the metal bar went into the brick, not only in connection with the step in question, but in connection with other steps.

The direct examination of Lewis Driskell, a witness for the appellant, established that he was a former custodian in the apartment building in question. He testified that he was instructed by the appellee-landlord, Horace O. Wright, Jr., to make repairs, collect rents, lease apartments and forward all bills incurred for the purchase of materials which he used to repair the apartment building to the said appellee-landlord. He testified that he had seen other tenants walk up and down the stairway in question on numerous occasions and that he had done so himself. He stated that he never warned any tenants not to walk up or down the flight of stairs in question, and that he was never instructed by the appellee-landlord, Horace O. Wright, Jr., in his capacity as an employee, to warn said tenants not to walk up and down said stairway. He said that he learned of appellant's accident when he came home from work on the date of the accident; that he called the appellee-landlord, Horace O. Wright, Jr., and was instructed by him to block off the step in...