Favreau v. Miller, 87-085

Decision Date29 March 1991
Docket NumberNo. 87-085,87-085
Citation591 A.2d 68,156 Vt. 222
CourtVermont Supreme Court
PartiesPamela FAVREAU v. Donald MILLER.

William R. Marks, Burlington and James M. Libby, Jr., Vermont Legal Aid, Inc., Montpelier, for plaintiff-appellant.

Miller & Tonelli, Randolph, for defendant-appellee.


MORSE, Justice.

Plaintiff brought suit to recover for her injuries after she fell down the stairs in the apartment she rented from the defendant in Burlington, Vermont. The jury found for defendant, and plaintiff appeals, claiming error in the jury instructions. We affirm.

In December 1983, plaintiff and a roommate rented the apartment--the second and third floors of a house--from defendant. Defendant lived on the first floor. The interior stairway in question led from the apartment's main living area on the second floor to a large bedroom on the third, an area that was formerly the attic. The stairway was steep, had no handrail, and headroom at the top was inadequate. Defendant knew of these problems, and the parties had discussed plans for renovations. Thereafter, on March 19, 1984, plaintiff fell down the stairs, dislocating her hip.

The court instructed the jury on the landlord's negligence as follows:

First, you should understand that a landlord is not a guarantor of the safety of his tenants, nor is he liable for every injury that his tenants may suffer on the premises. He may be found liable, however, where personal injuries to tenants are caused by his negligence in caring for the property. The landlord is required to use reasonable care in the upkeep of his apartments and to keep them in reasonably safe condition for his tenants. Failure to use reasonable care in the upkeep of the property may be negligence, for which the landlord can be held liable if a tenant is injured.

Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, when prompted by considerations which ordinarily regulate the conduct of human affairs. It is, in other words, the failure to use ordinary care under the circumstances in the management of one's person or property. Ordinary care is that care which reasonably prudent persons exercise in the management of their own affairs in order to avoid injury to themselves or their property, or to the person or property of others.

As applied here to an apartment house, negligence means the lack of ordinary care in the upkeep of the property in order to avoid an unreasonable risk of injury to tenants.

A landlord is required to take reasonable steps to repair any dangerous condition for which he has had notice. He is also required to know of any dangerous condition of which, in the exercise of reasonable care, he would have learned about. He is not required to know of all conditions that become dangerous from time to time, absent lack of ordinary care in knowing the condition of his property. Where, of course, the landlord has acknowledged to the tenant the existence of a dangerous condition, you may consider that as evidence of notice.

Where a landlord has notice, or with due diligence should have known of a condition dangerous to the safety of tenants, he is required to use ordinary care to make the property safe. That is, he must take such reasonable steps as are necessary to take care of the problem within a reasonable time.

Some conditions are so serious that prompt measures are required to be taken. Others are not so serious and can await a convenient moment to get to them. What is reasonable will depend upon the circumstances of the particular case.

Therefore, the plaintiff must prove each of the following essential elements of her case by a preponderance of the evidence:

1. That the condition of the stairway under consideration was unreasonably dangerous;

2. That Donald Miller knew, or with the exercise of reasonable care should have known, that there was a dangerous condition with respect to the stairway leading to the third floor;

3. That he failed to take reasonable steps within a reasonable time to make them appropriately safe for the tenants;

4. That the unreasonable dangerous condition was the proximate cause of injuries to the plaintiff.

It might be well to define what we mean by the term "unreasonably dangerous." Something is unreasonably dangerous when it has a tendency to cause injury beyond the degree ordinarily to be expected by a reasonably prudent and knowledgeable user. A stairway is unreasonably dangerous when its likelihood of causing injury is beyond that ordinarily to be expected, and which should not be expected to be safely negotiated by the use of ordinary care.

There has been evidence introduced here concerning the Burlington Minimum Housing Code. The Code requires stairways in rental apartments to be kept in a safe condition. Those that are unsafe do not comply with the Code. It will be for you the jury to determine whether or not, on the evidence presented here, the stairway in question complied with the Code. If you find that it did not, then you may consider such fact as evidence that the stairs were unreasonably dangerous. If the defendant knew or should have known that the stairs were in violation of the Code, and he failed to take reasonable steps to bring them into compliance, you may consider such fact as evidence of negligence.

Old buildings often have been modified for uses different than what was originally intended. Apartments in old buildings often are not as convenient or as safe as in modern buildings. Where a tenant voluntarily rents an apartment with knowledge that it has a less than convenient stairway which requires some additional care to negotiate the tenant cannot complain if he or she fails to use the care required to descend the stairs successfully.

Where the stairs are unreasonably dangerous, however, and cannot be negotiated safely with the ordinary care expected of one living in such an apartment, then the tenant is not held to have assumed the risk of injury that is caused by the unreasonably dangerous condition. It will be for you the jury to determine from the evidence whether the stairs here were unreasonably dangerous.

Plaintiff complains that the jury instructions were deficient in two general respects. First, over plaintiff's objection, the trial court refused to instruct the jury that landlord liability for personal injury could be based upon a breach of the implied warranty of habitability, regardless of the landlord's negligence. Second, plaintiff claims that the jury instructions on negligence were inadequate. Specifically, she argues that the court erred by permitting the jury to find that plaintiff assumed the risk of the defective stairway by renting an old apartment with knowledge of the stairway's condition. She claims further that the instructions misled the jury into believing that dangerous conditions that are "not so serious" do not require prompt repair by the landlord. Finally, plaintiff maintains that evidence of noncompliance with an applicable housing code establishes a prima facie case of negligence; the court instructed only that a violation of the housing code could be used by the jury as evidence of the landlord's negligence.


We note at the outset that the jury instructions in this case, requiring a landlord to exercise ordinary care in the upkeep of the rental property, represent a significant development in the common law of landlords and tenants, because landlords had been immune from liability for any injury to a tenant occurring in an area not within the landlord's possession and control. Thus, in Smith v. Monmaney, 127 Vt. 585, 588, 255 A.2d 674, 676 (1969), we wrote:

The determinant issue in ascertaining responsibility for negligence [by a landlord], arising from a dangerous condition on the land, is possession and control of the area which gives rise to the injury. It is the landlord's duty to exercise reasonable care to maintain entrances and passageways retained in his control for the common use of tenants in multiple dwelling premises.

(Citations omitted.) See also Waite v. Brown, 132 Vt. 20, 25, 312 A.2d 915, 916 (1973) ("The parties agree that unless the porch and stairway were under the possession and control of the landlord there was no duty on the landlord to exercise reasonable care to maintain them."). As the stairs in the present case were inside the apartment, leading from the living space on the second floor of the house to the bedroom on the third floor, the landlord would have enjoyed immunity under the old law.

The trial court here properly shunned the common-law categories. As stated in a leading treatise, "it is no part of the general law of negligence to exonerate a defendant simply because the condition attributable to his negligence has passed beyond his control before it causes injury...." 2 F. Harper & F. James, The Law of Torts § 27.16, at 1509 (1956). The New Hampshire Supreme Court in 1973 called the rule of landlord tort immunity an anomaly, manifesting "untoward favoritism" to landlords. Sargent v. Ross, 113 N.H. 388, 391, 308 A.2d 528, 530 (1973). "We think that now is the time for the landlord's limited tort immunity to be relegated to the history books where it more properly belongs." Id. at 396, 308 A.2d at 533. We concur, and now hold that Vermont landlords too may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or not they retain "control" of the dangerous condition. See id. at 397, 308 A.2d at 534.


The parties agree that the trial court properly rejected the "possession and control" doctrine and that its more expansive theory of landlord liability was in general correct. Plaintiff, however, insists that the court did not go far enough, and should have told the jury that the landlord's liability may also be predicated on a...

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