Francis v. Pic, 9058

Citation226 N.W.2d 654
Decision Date27 February 1975
Docket NumberNo. 9058,9058
PartiesWillie Mae FRANCIS, Plaintiff-Appellant, v. Laddie PIC, Defendant-Appellee.
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court

1. Status of social guest of lessee is similar to that of the lessee concerning his right to recover in tort against lessor for injury incurred due to condition of demised premises.

2. Landlord who knows or has reason to know of condition on demised premises at time of letting, which condition involves foreseeable unreasonable risk of harm to persons upon the premises, is under a duty to apprise tenant of such condition and the concomitant risk involved where nature of condition is such that landlord would have reason to expect that lessee will not discover same nor appreciate its risks, and this duty of landlord extends to those persons upon the demised premises thereafter with the consent of the tenant.

3. Where duty of landlord to warn tenant of condition of demised premises at time of letting thereof is predicated upon whether landlord knew or had reason to know that the condition potentiated in a risk of physical harm to those on the premises, words 'reason to know' import the drawing of a reasonable inference from information at hand.

4. Where trial court grants directed verdict of dismissal based upon erroneous application of law and where application of relevant law shows that factual determinations remain to be made by jury under proper theory of liability, case should be remanded for further proceedings.

Burke, Hodny & Burke, Grafton, for appellant.

DePuy, Fair & O'Connor, Grafton, for appellee.

SAND, Judge.

Willie Mae Francis, plaintiff/appellant, a social guest of the lessee, brought this action against defendant/appellee Pic, landlord, for personal injuries sustained from a fall on the inside stairway of a one-family home. Pic inspected the house three or four times prior to purchasing it, and walked up and down the stairway leading from the first to the second floor during these inspections. Pic again, after the purchase, made an inspection and 'skipped' over the stairway several times going up and down and noticed the steps were worn and showing wear. The inspections took place during the day and and at night. Pic made a determination that the house was in a liveable condition and that it was reasonably safe. Pic purchased the home on approximately October 1, 1971, and about five or six days later rented it to the lessee. The fall occurred on November 26, 1971, at about 5:15 a.m. Plaintiff, Francis, a social guest, was staying overnight with her step-daughter and son-in-law (lessee). Plaintiff and her husband used the upstairs bedroom. In the moring, while in the process of descending the stairway barefooted, she fell. Plaintiff felt her foot give way under her and had a sensation of the steps going out from under her. She fell on step No. 5 which showed a cracked nosing, part of which was an old break and part of which was new. The treads varied from eight to nine and one-half inches in depth. The nosing on step 2 just below the second floor level was missing, and on step 8 it was partially missing. On step 1 the nosing varied from one-eighth to three-eighths inch. The slope of the stairway was steep and about four or five degrees steeper than the maximum steepness of a standard residential stairway. The width of the stairway was three inches less than a standard minimum. The stairway opening on the second floor level leading downstairs consisted merely of a floor opening without any door, walls or railings. There were no mats on the stairway and the surface of the stairway was painted with enamel, not fresh but shiny and slick. The artificial lighting of the stairway consisted of a ceiling light on the second floor not in direct line with the stairway. It illuminated the upper treads but the light was cut off by the stairwell, and about half way down the stair there was no illumination, except for reflection and indirect lighting. The plaintiff social guest was not acquainted with the stairway except for going upstairs and descending for the first time.

Testimony was introduced showing that in walking up a stairway the weight is normally on the main part of the tread inside the nosing, whereas on descending the foot placement and weight is almost entirely on the nosing.

The case was tried to a jury, but the court restricted the case to the issue of liability. At the conclusion of plaintiff's case the court heard the motion of defendant, made pursuant to Rule 50, North Dakota Rules of Civil Procedure, and over objection of the plaintiff granted a directed verdict of dismissal with prejudice on the grounds that no legal theory supported a recovery for plaintiff. Plaintiff appeals from the order of dismissal.

The issues raised by the plaintiff/appellant are:

(1) What duty of care does a landlord of a house owe a social guest of the tenant (lessee)?

(2) Did the trial court err in holding as a matter of law that the defendant landlord owed no duty of care to plaintiff?

(3) Did the evidence raise issues of fact that should have been submitted to the jury?

Upon examination of the record, the briefs, and the oral arguments, it is apparent to us the district court, as well as the parties, gave erroneous consideration to the case of Werth v. Ashley Realty Company, 199 N.W.2d 899 (N.D.1972), which is readily distinguishable from this case.

It is also apparent the district court granted the motion for a directed verdict of dismissal upon the misapprehension of the Werth case wherein the plaintiff was a hybrid licensee-trespasser; whereas in this case we have a social guest. This illustrates the difficulty of attempting to render justice in every case by relying upon and attempting to fit the facts into the rigid common law categories of invitee, licensee and trespasser under the common law liabilities of landlord and tenant.

Presumably because of this difficulty a number of States, a small minority, have abandoned the common law distinctions of persons on premises and related concepts of liability. 32 A.L.R.3d 508. The abandonment has been more pronounced where minor children suffered bodily injury. 20 A.L.R.3d 1127. In this instance the injured person, the plaintiff, is an adult.

The plaintiff in thi case urged this court to abandon the common law rules of liability and adopt the rules of reasonable care as stated in Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973). However, because there are recognized exceptions to the general common law rule which are applicable to the present case we do not deem it advisable at this time to abandon the general common law concepts of liability of landlords. The social guest of a lessee of a single-dwelling home, we believe, deserves reasonable consideration especially as to notice of dangerous conditions or perils. A social guest is closely identified with the tenant.

This court, in Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505 (1949), recognized or acknowledged that the status of an invitee of a tenant was the same as that of the tenant in upholding a disputed or contested jury instruction, which was as follows:

'The guest or invitee of a tenant is so identified with the tenant that his right of recovery for injury as against the landlord is the same as that of the tenant, if such invitee suffers injury.'

This instruction and concept is in harmony with Restatement of the Law Torts (Second) § 358, which states, in relevant part, as follows:

'(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if

'(a) the lessee does not know or have reason to know of the condition or the risk involved, and

'(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.'

A social guest clearly comes within the expression, 'and others upon the land with the consent of the lessee.'

Relevant comments on the foregoing Restatement of the Law, Torts (Second) § 358, are:

'a. The rule stated in this Section is an exception to the general rule of non-liability of the lessor for dangerous conditions existing at the time of the lease, as stated in § 356. It is analogous to the rule as to vendors stated in § 353.

'b. In order for the rule stated in this Section to apply, it is not enough that the dangerous condition of the land is one which might be discovered by a reasonable inspection of the premises. The lessor is under no duty to his lessee, or to any other person entering the land, to make such an inspection, except where premises are leased for a purpose involving the admission of the public, as stated in § 359.

'It is not, however,...

To continue reading

Request your trial
11 cases
  • Old Town Development Co. v. Langford
    • United States
    • Indiana Appellate Court
    • June 17, 1976
    ...indicated sympathy with abolition of the lessor's general tort immunity and substitution of a standard of reasonable care. Francis v. Pic, N.D., 226 N.W.2d 654 (1975); DiMarzo v. S. & P. Realty Corp., 264 Mass. 510, 306 N.E.2d 432 (1974); Steele v. Latimer, 214 Kan. 329, 521 P.2d 304 Also t......
  • Thrash v. Hill
    • United States
    • Ohio Supreme Court
    • July 16, 1980
    ...v. Garwacki (Mass.1980), 402 N.E.2d 1045; Pagelsdorf v. Safeco Ins. Co. (1979), 91 Wis.2d 734, 284 N.W.2d 55; see, also, Francis v. Pic (N.D.1975), 226 N.W.2d 654; Steele v. Latimer (1974), 214 Kan. 329, 521 P.2d 304; Teller v. McCoy (W.Va.App.1979), 253 S.E.2d 114; Pugh v. Holmes (Pa.1979)......
  • Gonzalez v. Tounjian, 20020263.
    • United States
    • North Dakota Supreme Court
    • July 18, 2003
    ...alleged misrepresentation and concealment that the water mains in a leased building had been shut off. See also Francis v. Pic, 226 N.W.2d 654, 656-59 (N.D.1975) (applying § 358 to find fact questions existed on whether landlord knew of defective staircase in leased single-family house). Do......
  • Rittenour v. Gibson, 20020053.
    • United States
    • North Dakota Supreme Court
    • February 19, 2003
    ...jury instructions contained an error that made a material difference in how the jury might have understood the law. Francis v. Pic, 226 N.W.2d 654, 655-57 (N.D.1975). The failure to include the reference to "possessor" throughout the instruction could have led the jury to believe that the d......
  • Request a trial to view additional results
1 books & journal articles
  • Premises Liability Law
    • United States
    • James Publishing Practical Law Books Slip and Fall Practice Part One. Case Evaluation
    • May 6, 2012
    ...recovery for injury as against the landlord is the same as that of the tenant, if such invitee suffers injury.” See also Francis v. Pic , 226 N.W.2d 654 (N.D. 1975). §212.2 Ordinary Care To establish the level of duty owed, Rowland v. Christian, 69 Cal.2d 108, supra , requires reasonable ma......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT