Grochowski v. Stewart

• Decision Date: 21 February 1961
• Citation: 3 Storey 330,169 A.2d 14,53 Del. 330
• Parties: , 53 Del. 330 Anna GROCHOWSKI, Plaintiff, v. Ralph W. STEWART, Elizabeth N. Stewart, Joseph J. Brzoski and Regina G. Brzoski, Defendants.
• Court: Delaware Superior Court

Page 14

169 A.2d 14

3 Storey 330, 53 Del. 330

Anna GROCHOWSKI, Plaintiff, v. Ralph W. STEWART, Elizabeth N. Stewart, Joseph J. Brzoski and Regina G. Brzoski, Defendants.

Superior Court of Delaware, New Castle County.

Feb. 21, 1961.

C. W. Berl, Jr., and Richard L. McMahon, Berl, Potter & Anderson, Wilmington, for plaintiff.

F. Alton Tybout, Prickett, Prickett & Tybout, Wilmington, for defendants, Ralph W. Stewart and Elizabeth N. Stewart.

CHRISTIE, Judge.

In this action plaintiff seeks to recover for personal injuries she suffered when she fell on outside steps leading to an apartment occupied by Joseph J. Brzoski and Regina G. Brzoski, located on the first floor of a building owned by Ralph W. and Elizabeth N. Stewart.

The plaintiff has brought suit against both the tenants and the landlords. The Stewarts filed a motion for summary judgment on the ground that a landlord is not responsible for injuries caused by the condition of the leased premises and that the plaintiff, Mrs. Grochowski, was herself negligent, as a matter of law.

On August 28, 1958, between 9:30 and 11:00 p. m., Mrs. Grochowski tripped and fell down the flight of outside concrete steps which served as a means of access to the first floor apartment, occupied by her daughter, Mrs. Brzoski, and her husband. She was on her way home after having served as a paid babysitter for her daughter.

The building in which the apartment was situated was a two story dwelling owned by the Stewarts. At the time of the accident, the Stewarts lived on the second floor. There were no other families or apartment facilities in the building. The Stewarts' apartment and the Brzoskis' apartment had separate entrances connected by separate outside stairways.

The usual means of ingress and egress from the Brzoskis' apartment was by way of a cement porch, open on both ends from the street end of which the steps in question led to a paved sidewalk. The steps at the other end of the porch were not used because of their inconvenient location, the muddy condition of the lawn surrounding them and the absence of any paved sidewalk leading to them. There was no handrail adjacent to the steps, although there was a concrete abutting wall on the right side of the steps perpendicular to and flush with the top of the porch.

At the time of the accident, it was a dark, clear night. The porch light was on and gave sufficient light for one to see the steps.

Mrs. Grochowski said she caught the heel of her right shoe at or near the edge of the top step, flush with the porch itself, just as she was about to step down. Photographs indicate the edge of the top step was weatherworn and rounded but there was no rough, broken or cracked portion of the riser of that step. The remaining lower steps were in various degress of disrepair, being rough and uneven, and in spots pieces of concrete were missing and cracks in the risers of various sizes had appeared.

Mrs. Grochowski said she had become quite familiar with the steps during the ten months she had been babysitting for her daughter. She had never complained to anyone about their condition nor had she even used the other side of the porch.

The Brzoskis stated that they had used only the steps in question as a means of ingress and egress, and that Mr. Brzoski had kept the steps clean and free from snow in the winter. The tenants replaced the front porch lightbulb when necessary but never made any repairs whatever to the front steps either before or after the accident. In reply to the question, 'Did the Stewarts ever use these steps on your porch for any reason?', Mr. Brzoski said, 'No, just the boys running up and down.' The Brzoskis also were accustomed to sitting on the front porch on their own furniture.

After the accident Ralph Stewart roped off the steps, thereby requiring all persons to use the far side of the porch. The record reveals no other evidence of use, care or maintenance of the steps by the landlords.

Plaintiff argues that the Stewarts are liable because they were negligent in constructing and/or maintaining and/or failing to make repairs to the steps. Plaintiff cannot recover from the landlords unless the landlords have breached a duty owed to plaintiff.

The great weight of authority supports the rule that in the absence of any covenant to repair or concealment or fraud by the landlords as to some defect in the demised premises, the tenant takes the demised premises in whatever condition they happen to be, and, subject to important exceptions not here pertinent, neither the tenant nor his invitees can hold the landlord liable for personal injuries resulting from a defective condition, whether such condition existed at the time the tenant entered or developed later. Leech v. Husbands, Superior Court 1930, 4 W.W.Harr. 362, 152 A. 729. ^* See also Goodmaker v. Kelley, 1957, 154 Cal.App.2d 457, 316 P.2d 746; Minkkinen v. Nyman, 1949, 325 Mass. 92, 89 N.E.2d 209; Patton v. Texas Co., 1951, 13 N.J.Super, 42, 80 A.2d 231; Cole v. McKey, 1886, 66 Wis. 500, 29 N.W. 279; 32 Am.Jur., Landlord & Tenant, §§ 657, 665; 1 Tiffany, Landlord & Tenant, §§ 96, 97.

The application of this rule in the instant case bars recovery from the landlords by the plaintiff unless the record shows some evidence that (1) the landlords covenanted to keep the steps in repair or (2) the steps remained under the control of the landlords and thus were not a part of the demised premises.

The lease has two provisions which mention repairs. One provision says 'the lessee shall keep the demised premises and all improvements and fixtures in good condition, order and repair * * *.' The other states 'and the lessor * * * shall be permitted at any time during said term, to visit and examine the demised premises * * * to make and/or determine the necessity for making any repairs to the same or to any part of the building.'

A distinction must be made between language imposing the duty to repair the demised premises upon the lessee and other language which merely reserves the right to the landlords to enter any portion of the building for the purpose of making repairs or of determining whether repairs are necessary.

The significance of these provisions is a matter of construction and interpretation. Proper interpretation of a document requires that the entire instrument be considered as a whole and its language construed as a whole. Holland v. National Automotive Fibres, Inc., 1937, 22 Del.Ch. 99, 194 A. 124; 32 Am.Jur., Landlord & Tenant, § 127.

I interpret the provisions of the lease to provide that the landlords have merely a right to enter the demised premises to inspect or repair, whereas the tenant alone has the duty to keep the demised premises in repair.

The fact the landlord has made some minor repairs to the leased premises is not an admission of an obligation to repair on his part, when the lease contains a lessee's covenant to repair. Dalton v. Gibson, 1906, 192 Mass. 1, 77 N.E. 1035.

Where only the tenant had the burden of repairing under a covenant to repair, neither the tenant nor his invitees can recover from the landlords for injuries suffered on the demised premises. Runyon v. City of Los Angeles, 1919, 40 Cal.App. 383, 180 P. 837.

I conclude that the landlords did not covenant to repair or maintain the demised premises. It is now necessary to determine whether or not the steps were a part of the demised premises. If the steps were not a part of the demised premises and the landlords retained control over them, the landlords are responsible for repairs even if no covenant to repair existed.

The demised premises are merely described in the lease as the 'apartment'. The lease does not specifically state whether or not the right to control the outside steps passed to the lessee.

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