Harvey v. Seale, A-8666

• Decision Date: 03 October 1962
• Docket Number: No. A-8666,A-8666
• Citation: 362 S.W.2d 310
• Parties: Mary Lee HARVEY, by Next Friend, Petitioner, v. William SEALE, Respondent.
• Court: Texas Supreme Court

Page 310

362 S.W.2d 310

Mary Lee HARVEY, by Next Friend, Petitioner, v. William SEALE, Respondent.

No. A-8666.

Supreme Court of Texas.

Oct. 3, 1962.

Rehearing Denied Dec. 19, 1962.

Bill J. and Don Sanders, Carl Waldman, Beaumont, for petitioner.

Orgain, Bell & Tucker, David J. Kreager, Beaumont, with above firm for respondent.

WALKER, Justice.

Mary Lee Harvey, petitioner, was injured when she fell through a hole in the front porch of the home rented by her father from William Seale, respondent. This suit was brought by petitioner and her father against respondent to recover their damages. The jury found that the accident was proximately caused by respondent's negligent failure to repair the hole and by the father's negligence in failing to cover the same. It refused to find that petitioner should have stayed away from the hole or that she failed to keep a proper lookout. Judgment was entered on the verdict that the father take nothing and that petitioner recover from respondent her damages in the amount fixed by the jury. The Court of Civil Appeals reversed and rendered in respondent's favor, holding that petitioner was guilty of contributory negligence as a matter of law. 349 S.W.2d 292.

Petitioner was 9 1/2 years of age and in the second grade at the time of the accident. She and her parents had lived in the home rented from respondent for approximately seven years. The floor of the front porch, which was about 9 feet long, 6 feet wide, and some 18 or 20 inches above the level of the ground, was covered with boards 4 inches in width. Parts of two boards became rotten and fell in about three weeks before the accident. This left a hole approximately 8 inches wide and 2 feet long near one end of the porch and at the side which adjoined the main structrue of the house.

Petitioner's parents warned her about the hole, explained the danger of falling into it, and told her not to play near the same. According to their testimony, she had the capacity to and did understand the danger. The accident occurred about three o'clock in the afternoon while petitioner was playing alone, running up and down the porch. She was facing the hole when she fell. There was nothing to prevent her seeing it, but she was not looking. She testified that the reason she fell was that she had forgotten about the hole while playing on the porch. Her father was present at the time but did not see her fall.

Respondent's brief in the Court of Civil Appeals contains several points of error, any one of which, if sustained, would require that the judgment of the trial court be reversed and rendered. Our views with respect to each of these contentions must be stated, because it is our opinion that the judgment of the trial court should be affirmed. The contributory negligence question will be considered after the other points of error presented to the intermediate court have been discussed.

Respondent contends that his covenant to repair upon demand did not give rise to any duty which can be made the basis of liability to petitioner, because it does not appear that personal injuries were within the contemplation of the parties when the agreement was made. The opinion in Ross v. Haner, Tex.Com.App., 258 S.W. 1036, lends support to this argument, but that case was decided at a time when most jurisdictions afforded no redress against a lessor for personal injuries caused by a defect in the leased premises which he was under a contractual duty to repair. See Annotation 8 A.L.R. 765. In recent years an increasing number of courts have held that tort liability may be predicated upon the lessor's negligent failure to perform his covenant to repair after notice of a defect which renders use of the property in the manner contemplated by the lease unreasonably dangerous. See Annotations, 163 A.L.R. 300, 78 A.L.R.2d 1238; 32 Am.Jur. Landlord and Tenant § 724, p. 599. The latter view has been adopted by the Restatement and is now recognized as the law in Texas. See Restatement of the Law of Torts § 357; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. The tort duty arises from the lessor's ability to make repairs and his control over them, and it is not necessary for the plaintiff to establish that the covenant to repair was made for the purpose of preventing personal injury to the tenant or some member of his family.

It is also argued that petitioner assumed the risk, and that respondent owed her no duty, because the hole was an open and obvious condition which petitioner encountered with full knowledge of its existence and appreciation of the danger involved. Petitioner undoubtedly knew that the hole existed and realized that there was danger of injury if she stepped or fell into it. She did not, however, knowingly and intentionally subject herself to the danger as would have been the case if she had attempted to determine whether she could avoid the hole while walking across the porch with her eyes closed. The question is whether the defendant owed her any duty when she chose to remain within the area of danger while playing on the front porch.

Respondent relies on cases such as McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Marshall v. San Jacinto Bldg., Inc., Tex.Civ.App., 67 S.W.2d 372 (wr. ref.); Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737 (wr. ref. n. r. e.); and Lederman v. Cunningham, Tex.Civ.App., 283 S.W.2d 108 (no writ). These were suits by an invitee or licensee whose privilege to enter and remain on the premises was derived solely from the defendant's consent. A landowner is not under an absolute duty to change his methods of operation, alter the condition of the premises, or make other special preparations for the safety of such a visitor. All the latter can expect is knowledge of actual conditions that will be encountered so he may determine whether to avail himself of the landowner's consent. The duty of a landowner to his licensee or invitee is fully discharged then by a complete disclosure of the danger. And there is no duty whatsoever with respect to conditions that are so open and obvious, with the dangers therein so apparent, that the same are or should be known to and appreciated by the visitor. One who has no right to enter except by virtue of the landowner's consent can remain off the premises if he does not wish to subject himself to the risk of injury from such conditions. Where he has an opportunity to exercise an intelligent choice as to whether the advantage to be gained by his entry is sufficient to justify his incurring the risk, the landowner owes him no further duty of protection from harm. See Restatement of the Law of Torts §§ 340 to 343, inclusive, and comments thereunder. These principles are also applicable to an action by the employee of a...