Kilbury v. McConnell, 5--4839

Decision Date01 April 1969
Docket NumberNo. 5--4839,5--4839
Citation246 Ark. 528,438 S.W.2d 692
PartiesLarry KILBURY, Appellant, v. Clyde McCONNELL, Appellee.
CourtArkansas Supreme Court

Lesly W. Mattingly, Jacksonville, for appellant.

Wright, Lindsey & Jennings, Little Rock, for appellee.

HOLT, Justice.

This is an action by a tenant against his landlord to recover damages for personal injuries. The tenant, who is the appellant, slipped and fell when he stepped on some ice at the bottom of an outside stairway. Appellant's complaint asserts that appellee, the landlord, was negligent in that the appellee failed to correct an unsafe condition which he knew to exist, or would have known to exist in the exercise of reasonable care. After appellant presented his evidence and rested his case, the court directed a verdict in favor of the appellee. This appeal comes from the judgment based on the directed verdict.

For reversal the appellant contends that the trial court erred in granting appellee's motion for a directed verdict on the basis that the appellee (landlord) had no duty to the appellant (tenant) to remove a natural accumulation of ice and snow from a common stairway or passageway.

The appellee's two-story apartment building consists of eight apartments, with four units on the ground level and four units on the second floor. The sole means of ingress and egress from appellant's second-floor apartment was a common stairway in the middle of the building from the second floor down to the main landing where the stairway splits to the left and right into separate stairways. The incident occurred in February of 1966. On the day before the accident there was a heavy snowfall, however, it seems it had not snowed on the day appellant slipped and fell. At approximately 8 p.m. appellant, accompanied by a friend, proceeded down the first flight of stairs to the main landing. The stairway on the right, which appellant had traversed on three separate occasions following the snowfall, appeared to have retained the most snow on it so appellant decided to try the stairway on the left. According to appellant, as he stepped from the bottom step onto the landing he slipped on some ice causing him to fall which resulted in injuries to his neck, back and right elbow. Appellant testified that he descended the stairway very cautiously. Appellant's version of the conditions and the cause of the accident was corroborated by the friend who was accompanying him. Appellant made no effort to remove the natural accumulation of snow and ice, nor did he acquaint the appellee with the existence of this temporary hazard. In fact, appellee was first notified of the accident in July of 1966.

It is the contention of appellant that his landlord, the appellee, had a duty to remove the natural accumulation of snow and ice from the stairway which was for the common use of all the tenants and, this being true, there was substantial evidence, when viewed most favorably to the appellant, to make a jury question of negligence and constructive notice of the hazardous condition.

The courts which have considered the issue in the case at bar are divided. One line of authorities supports what is known as the Massachusetts rule which holds that a landlord is under no obligation to remove a natural accumulation of ice and snow from common passageways or areas retained in the landlord's control for the common use of his tenants. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am.Rep. 344 (1883), and reiterated in Spack v. Longwood Apartments, Inc., 338 Mass. 518, 155 N.E.2d 873 (1959). The reasoning is that there is no duty on the part of the landlord to the tenant to remove a temporary hazard such as ice and snow from common passageways. This common law, or Massachusetts rule, is based upon the premise that a duty to remove snow and ice from common passageways would subject the landlord to an unreasonable burden of vigilance and care and a landlord should not be responsible for such temporary natural hazards as the expected acts of nature over which he has no control and it would be unreasonable to require the landlord to be subjected to the duty of keeping a janitor on the premises at all times merely to insure the immediate removal of snow and ice.

The appellant ably and forcefully argues...

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14 cases
  • Geise v. Lee
    • United States
    • Washington Court of Appeals
    • 11 Marzo 1974
    ...has been followed in a number of cases, some fairly recent. Karp v. Mills, 348 Mass. 768, 202 N.E.2d 244 (1964); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969). Some other states have refused to follow the Massachusetts rule, treating it as providing an illogical exception to the......
  • Propst v. McNeill
    • United States
    • Arkansas Supreme Court
    • 18 Noviembre 1996
    ...Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989); Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969); Joseph v. Riffel, 186 Ark. 418, 53 S.W.2d 987 (1932). Thus, we conclude by holding that the Commission here was not shown t......
  • Jackson v. Warner Holdings, Ltd.
    • United States
    • U.S. District Court — Western District of Arkansas
    • 5 Septiembre 1985
    ...did not equivocate in so ruling, and merely stated that its holding was in conformity with the "general rule." In Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969), the court followed Joseph, but not without some reluctance. In Kilbury the court held that in the absence of an expres......
  • Fuller v. Housing Authority of City of Providence
    • United States
    • Rhode Island Supreme Court
    • 22 Julio 1971
    ...a representative sampling of judicial thought on the issue before us. The courts adopting the Massachusetts Rule are: Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692; Rosenberg v. Chapman Nat'l Bank, 126 Me. 403, 139 A. 82; and Davis v. Lindau, 270 Wis. 218, 70 N.W.2d 686.2 The Connectic......
  • Request a trial to view additional results

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