Kesler v. Allen, 840390
| Decision Date | 06 March 1987 |
| Docket Number | No. 840390,840390 |
| Citation | 233 Va. 130,353 S.E.2d 777 |
| Parties | Nadine KESLER v. Lottie D. ALLEN. Record |
| Court | Virginia Supreme Court |
Edward A. Natt (Osterhoudt, Ferguson, Natt, Aheron & Agee, P.C., Roanoke, on brief), for appellant.
John S. Edwards (Martin, Hopkins, Lemon and Carter, P.C., Roanoke, on brief), for appellee.
Present: All the Justices.
The determinative question in this appeal is whether a landlord, having employed an independent contractor to make repairs or improvements, is liable to a tenant for injuries caused by the contractor's negligent performance of the work.
In 1982, Nadine Kesler was the owner of a rental duplex building in Roanoke. Lottie Allen was a tenant who occupied the downstairs unit in the duplex. Mrs. Allen's sister, who also lived there, asked Mrs. Kesler to provide a storm door at the front entrance which served the duplex. Mrs. Kesler purchased a storm door and brought it to the site. She then engaged Howard Smith, a carpenter who had been recommended to her by her mother, to install the door. Smith had not previously worked for Mrs. Kesler, but he satisfied her inquiries concerning his ability to do the work.
On the morning of December 22, 1982, Mrs. Kesler met Smith at the apartment, showed him where the door was to be installed, and left to go to her place of employment. She gave Smith no specific instructions concerning the methods to be used except the statement: "Mr. Smith, the headers should be closed at the top."
Later in the day, Smith called Mrs. Kesler at work and told her that the door was too small to fit the opening. She told him where she had bought it, and instructed him to exchange it for a door of the proper size and to charge her account for any difference in cost.
Mrs. Allen returned to the duplex after dark, carrying a number of parcels. Smith, during the day, had nailed a piece of wood, four inches high, across the threshold. In the darkness, Mrs. Allen failed to see the obstacle, tripped over it, fell, and sustained injuries. Mrs. Kesler was unaware of the presence of the obstacle until she was informed of the accident.
The tenant brought this action against both the landlord and the contractor, alleging that her injuries were the proximate result of the negligence of both. The landlord filed a third-party motion for judgment against the contractor, claiming indemnity from him. The contractor filed no responsive pleadings and was held in default.
The case was tried to a jury. The landlord's motion to strike the tenant's evidence, made at the close of the plaintiff's case and renewed at the close of all the evidence, was denied. The tenant then moved for a directed verdict against both defendants on the issue of liability. The court granted that motion, and submitted the case to the jury only on the issue of damages. The jury returned a verdict for $20,000 against both defendants. After denying post-trial motions, the court entered judgment against both defendants jointly, but also entered a third-party judgment in favor of the landlord against the contractor, for all sums paid by her to the tenant under the tenant's order of judgment. We granted the landlord an appeal.
The landlord assigns error to the trial court's action directing a verdict when no motion to strike the evidence had been sustained. We agree that the ruling was error. Turner v. Burford Buick Corp., 201 Va. 693, 696-97, 112 S.E.2d 911, 914 (1960). Directed verdicts were expressly prohibited by statute in Virginia prior to 1958. Code 1919, § 6003; Code 1950, § 8-218. They are prohibited now. Code § 8.01-378 (1986 Cum.Supp.). During the interval 1958-1986, which included the time of trial of the case before us, directed verdicts were permitted only where the court had sustained a motion to strike the evidence. Code § 8.01-378 (1977 Repl.Vol.) (amended Act 1986 c. 253). If the court's ruling is considered tantamount to sustaining a motion to strike, and if the latter would have been proper in the circumstances of the case, the error of directing a verdict would have been harmless. Because of the view we take of the dispositive issue in the case, however, we cannot say that the error was harmless.
We have not previously decided the question of a landlord's liability for the negligence of an independent contractor employed to make repairs or improvements, but the governing principles are well settled. In the absence of a specific agreement to do so, a landlord has no duty to maintain in a safe condition any part of the premises under the tenant's exclusive control. Paytan v. Rowland, 208 Va. 24, 26, 155...
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