Higgins Investments, Inc. v. Sturgill

• Decision Date: 15 February 1974
• Citation: 509 S.W.2d 266
• Parties: HIGGINS INVESTMENTS, INC., Appellant, v. Octavia STURGILL, Executrix of the Estate of John Dennis Sturgill, Deceased, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 266

509 S.W.2d 266

HIGGINS INVESTMENTS, INC., Appellant, v. Octavia STURGILL, Executrix of the Estate of John Dennis Sturgill, Deceased, Appellee.

Court of Appeals of Kentucky.

Feb. 15, 1974.

As Modified on Denial of Rehearing May 17, 1974.

Lionel A. Hawse, Charles Landrum, Jr., Landrum, Patterson & Dickey, Lexington, for appellant.

Wheeler B. Boone, M. Theodore Valentine, Lexington, for appellee.

GARDNER, Commissioner.

John Dennis Sturgill died in a fire which occurred in the apartment where he was a tenant. Appellant was the owner of the building. The trial resulted in a jury verdict and a judgment of $102,039.20 in favor of Sturgill's executrix against appellant. We affirm.

The building originally was a large single dwelling, but later was converted into apartments so that there were two apartments on the first floor, four on the second floor, and three on the third floor. There was also an attic. Sturgill lived alone in a two-room apartment on the third floor. Adjoining his apartment was one occupied by Miss Regina Faye Cunningham. A small hallway, four feet by six feet, provided the only means of going from either the Sturgill apartment or the Cunnigham apartment to the stairway. There was an outside fire escape parallel to this stairway which could be reached through the Cunnigham kitchen or through a large window near the top of the stairway.

According to Miss Cunningham, she awoke to find a 'red glow' around the door between her apartment and the hallway. When she opened the door the hallway was engulfed in smoke and blaze. She raced back through her kitchen and onto the fire escape. After the fire was subdued the deputy coroner and others went to Sturgill's apartment where they found him dead, with '100 percent' of his body having been burned. He was lying on the floor with his feet close to the hall door. The water was flowing from the shower past his feet and into the hallway. The nozzle was pointing toward the body.

The cause of the fire was not definitely established. There was no probative evidence of faulty wiring. There was speculation that arson was involved but no tangible evidence was produced to verify it. There was no evidence, of course, as to when Sturgill became aware of the fire. There was testimony that earlier in the evening Sturgill was drinking with friends but there was no evidence of his having 'passed out' or of his being so drunk that he was insensible to the hazard of the fire. The many uncertainties make the case difficult to decide. There appears to be no serious doubt that the fire originated in the hallway, which is an important consideration in determining the proximate cause of the death of Sturgill.

The main issue is not whether appellant was negligent in permitting the fire to start, rather whether it provided an acceptable means of escape, and, if not, whether such failure was a substantial factor ¹ in causing Sturgill's death.

'Standards of Safety' adopted by the Department of Insurance pursuant to KRS 227.300, and adopted by the City of Lexington, provide:

Article VII, section 804, 4. Exits.

'(a) Every story used as a residential occupancy for ten or more occupants and every story in an apartment building having one or more dwelling units above the second story shall have at least two separate exits; * * *.'

Article V, section 501, 1. Exits Defined .

'(b) Required exists from any area in a building shall not lead through rooms of other tenancies, or through any room subject to locking, * * *.'

'(d) Elevators and windows shall not constitute paths of exit.'

Article V, section 500. Purpose.

'(a) * * * In general this will require not less than two exists, as widely separated as possible, together with doorways, hallways, passageways, and stairways, forming continuous and unobstructed avenues of escape from any given point.'

Appellant argues that the court's instructing the jury that appellant was negligent if it failed to furnish two exits, and further instructing 'The Court states that elevators and windows shall not constitute paths of exit,' was tantamount to its directing the jury to find appellant negligent since appellant admitted that one of the exits was through the window between the stairway and the fire escape. Instruction No. 1 was in part as follows:

'The court instructs the jury that it was the duty of the defendant, Higgins Investments, Inc., to provide two means of exit from the floor of the apartment building on which the deceased, Sturgill, resided, but not from the apartment of John Dennis Sturgill itself. The Court states that elevators and windows shall not constitute paths of exit. Required exits from any area in a building shall not lead through rooms of other tenancies, or through any room subject to locking. If you believe from the evidence that the defendant, Higgins Investments, Inc., was negligent in that it failed, if they did, to furnish two means of exit as herein described from the story of said apartment building, and that such failure, if any there was, was the direct and proximate cause of the death of the decedent, John Dennis Sturgill, then the law is for the plaintiff and you will so find, but unless you so believe, you will find for the defendant.'

The court's instruction followed the wording of the standards, which specifically declared that windows would not qualify as 'paths of exit.' Appellant stresses that there was a 'substantial compliance' and the court should have so declared as a matter of law . Appellant asserts that throughout the standards the word 'reasonable' is used and there is included in section 500(c) the words 'substantially equivalent' in referring to exit facilities. Aside from the question of whether the issue of substantial compliance was properly presented to the trial court so that it could be reviewed by this court, we do not believe that, under the circumstances revealed by the evidence, it could be said that there was substantial compliance as a matter of law. Nor do we accept appellant's argument...