Jacobs v. Anderson Bldg. Co.

• Decision Date: 01 August 1990
• Docket Number: No. 890295,890295
• Citation: 459 N.W.2d 384
• Parties: Bonnie JACOBS and Kevin Grosz, each individually and as natural parents and guardians for Jennifer Grosz, a minor child, Plaintiffs, Appellants and Cross-Appellees, v. ANDERSON BUILDING COMPANY, a North Dakota corporation, and Inclinator Company of America, Defendants and Third-Party Plaintiffs. DAKOTA ACADEMY OF THE ARTS, Defendant, Third-Party Plaintiff, Appellee and Cross-Appellant, v. CITY OF BISMARCK, Third-Party Defendant. Civ.
• Court: North Dakota Supreme Court

Page 384

459 N.W.2d 384

Bonnie JACOBS and Kevin Grosz, each individually and as

natural parents and guardians for Jennifer Grosz, a minor child, Plaintiffs, Appellants and Cross-Appellees, v. ANDERSON BUILDING COMPANY, a North Dakota corporation, and Inclinator Company of America, Defendants and

Third-Party Plaintiffs.

DAKOTA ACADEMY OF THE ARTS, Defendant, Third-Party Plaintiff, Appellee and Cross-Appellant, v. CITY OF BISMARCK, Third-Party Defendant.

Civ. No. 890295.

Supreme Court of North Dakota.

Aug. 1, 1990.

Bonnie Jacobs and Kevin Grosz appealed from an order denying their motion for a new trial against Dakota Academy for the Arts for personal injuries to their daughter. We affirm.

On November 3, 1986, thirteen-year-old Jennifer Grosz attended a dance class sponsored by Dakota Academy and held on the third floor of the Anderson Building in downtown Bismarck. Jennifer and a friend left dance class early and began playing on an elevator which serviced the first two floors of the building. This was an open-shaft, "cage" elevator which ran on a track attached to the wall between the first and second floors, proceeding through an opening in the ceiling to the second floor. The girls played by pushing the button to make the elevator ascend, grabbing on to the outside of the cage, and then jumping off before it reached the ceiling. Jennifer somehow became entangled on the outside of the elevator and could not jump off. The elevator ascended into the opening, trapping Jennifer against the ceiling. She suffered severe and permanent injuries.

Her parents, Bonnie Jacobs and Kevin Grosz [hereinafter collectively "Jacobs"], sued the owner of the building, the former owner who had installed the elevator, the elevator manufacturer, and Dakota Academy, asserting claims individually and on Jennifer's behalf. On a prior appeal, we reversed the trial court's dismissal of the parents' individual claims. Jacobs v. Anderson Building Co., 430 N.W.2d 558 (N.D.1988). Jacobs settled before trial with all defendants except Dakota Academy. The remaining claims were tried to a jury, which found Dakota Academy not liable for Jennifer's injuries. The trial court denied Jacobs' motion for a new trial, and Jacobs appealed.

Our decisions on the following issues dispose of this appeal:

I. Did the trial court properly instruct on premises liability?

II. Did the trial court properly refuse to instruct on the Butz presumption?

III. Did the trial court erroneously allow prejudicial cross-examination of Bonnie Jacobs?

I. PREMISES LIABILITY

The Anderson Building is a large commercial building with numerous commercial and residential tenants. It is undisputed that Herman Eggers, the owner of the building, retained possession and control of the common areas, including the entryways, stairways, and elevator. Jacobs asserts, however, that Dakota Academy, as a commercial tenant, had a duty to provide a safe entrance to its leased space on the third floor, including a concurrent duty with the landlord over the entryways, stairways, and elevator.

Jacobs requested various instructions on a commercial tenant's duty to provide safe premises, including the following:

The Dakota Academy for the Arts owes its students a duty to keep its premises in a reasonably safe condition and to provide a safe path of egress from its studio to the street. The duty also extends to the approaches, the entranceways and the stairways leading up to the dance studio. Whether the approaches, entranceways and stairways were reasonably safe depends upon the circumstances surrounding their condition, use and ages of students who would be expected to use them.

When the operator of a business establishment such as the Dakota Academy for the Arts enjoys the benefits of a passageway or stairway by permitting its students to use it as a route to and from the dance studio, it must take reasonable measures to keep that passageway free from hazards.

The trial court refused to give the requested instructions, but instructed the jury as follows:

DUTY TO REPAIR, INSPECT, AND WARN

At page 3 of my opening instructions I discussed the duties of an owner or occupier of real estate relating to inspection, repair, and giving warning of risk of harm. As you are aware, there were a number of tenants in the building. The owner of the building did not occupy it. There were common areas of the building, such as the entrances and stairways, that were utilized by more than one tenant and by third persons who were entering the building.

With respect to such common areas, the duty to inspect or repair, which is sometimes referred to as the "duty to make safe," rests upon the owner and upon any other persons who may have assumed the obligation of exercising control over a common area.

A duty known as the "duty to warn" can also exist. The landlord and the tenant have a duty to warn those entering the premises occupied by the tenant of any dangers which might reasonably be expected to be encountered in the common area of a building used to enter and leave that part of the property occupied by the tenant. The warning must be such as would cause a person of ordinary prudence to exercise control for his own safety commensurate with the danger. The tenant also has a duty to notify the landlord of any such dangers of which the tenant was aware or should have been aware.

Jacobs argues that the trial court erred in refusing to give the requested instructions, asserting that a commercial tenant should have a duty to alleviate dangerous conditions existing upon entryways to the leased premises even though the landlord retains possession and control over that part of the property.

Jacobs relies upon decisions from a handful of jurisdictions which suggest that a tenant may have a duty to protect invitees from hazards located in entryways or areas adjacent to the leased property. Jacobs' argument runs contrary to the overwhelming weight of authority on the issue. The general rule is succinctly stated in Annot., Liability of Lessee of Particular Premises in Shopping Center for Injury to Patron from Condition on Portion of Premises not Included in His Leasehold, 48 A.L.R.3d 1163, 1165-1166 (1973):

[I]t is also well settled that a duty of care will not ordinarily be imposed upon an occupier of land beyond the area over which he has possession and control. Thus, it has been widely held, in cases involving landlord-tenant relationships ..., that where a landlord has retained portions of the premises under his control or for the common use of his tenants, a lessee of part of the premises is not responsible for the safety of third parties injured on the common areas so retained by the lessor.

Other authorities agree. Prosser and Keeton on Torts § 63, at 440 (5th ed. 1984); Restatement (Second) of Torts § 360 comment a (1965); 49 Am.Jur.2d Landlord and Tenant § 987 (1970); 62 Am.Jur.2d Premises Liability §§ 6, 12, 16 (1990). It is settled that control over the dangerous area is a prerequisite to imposition of premises liability.

The policy underpinnings for the majority position are amply portrayed by this situation. Although Jacobs asserts that Jennifer's injuries were proximately caused by Dakota Academy's breach of its duty to provide a means of safe ingress and egress to its third-floor studio, counsel for Jacobs could not articulate at oral argument precisely what Dakota Academy could have done to perform that duty. Dakota Academy did not have possession or control of the elevator, and thus had no authority to disable, remove, or restrict access to the elevator. There can be no duty to make an area safe if the tenant has no authority to carry out that duty. This is precisely why control is an essential prerequisite for imposition of premises liability.

Adoption of the duty urged by Jacobs could lead to absurd results. If extended to its logical conclusion, the duty would require each commercial tenant in a high-rise office building or large retail mall to make certain there were no dangerous conditions in any entryway, stairway, or hallway throughout the entire building. Premises liability would be separated from the power to make safe.

As a prerequisite to actionable negligence, a...