Klahr v. Kostopoulos

• Decision Date: 15 April 1952
• Citation: 88 A.2d 332,138 Conn. 653
• Parties: KLAHR v. KOSTOPOULOS et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 332

88 A.2d 332

138 Conn. 653

KLAHR v. KOSTOPOULOS et al.

Supreme Court of Errors of Connecticut.

April 15, 1952.

Harrison D. Schofield and James F. Dawson, Hartford, for the appellants (defendants).

Sydney C. Kweskin, Stamford, with whom was Saul Kwartin, Westport, for the appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The plaintiff, who was a second-floor tenant in the defendants' six-family apartment house in Stamford, brought this action to recover for personal injuries sustained on October 6, 1948, by reason of the alleged negligent failure of the defendants to keep a porch railing in repair. It is conceded that the porch was in their exclusive control. Judgment was for the plaintiff and the defendants have appealed.

The record shows these further undisputed facts: The railing along the outer edge of the porch at the rear of the plaintiff's apartment extended between two upright posts and consisted of a top rail and a lower stringpiece with perpendicular balusters between. As the plaintiff turned away after throwing a parcel into the rear yard, her right side came in contact with the railing, it collapsed, and she fell to the ground below, suffering serious and painful injuries. When the railing gave way, it became detached at all four of the points where it had been affixed to the two upright posts. The ends of the top rail and the stringpiece, and the posts at the four points where these had been attached, were rotted and decayed. The nails at these four places remained in the posts. They were rusted, corroded and eaten away, and the heads had disintegrated. No inspections to ascertain the condition of the premises had been made either by the defendants or by their employees. Neither of the defendants testified at the trial, and they did not offer evidence that any inspection had ever been made of the premises. There was no claim that the plaintiff was contributorily negligent.

'The primary duty of the landlord is to use reasonable care to see that the premises are kept reasonably safe, and his liability can only arise out of a failure in that duty. Reardon v. Shimelman, 102 Conn. 383, 386, 128 A. 705, . To give rise to it, however, it must appear that he either knew of a defect or is chargeable with notice of it, because, had he exercised a reasonable inspection of the premises, he would have known of it. Reardon v. Shimelman, supra [102 Conn.] p. 389 (128 A. 705).' Vinci v. O'Neill, 103 Conn. 647, 657, 131 A. 408, 411; Laflin v. Lomas & Nettleton Co., 127 Conn. 61, 64, 13 A.2d 760. It is the landlord's duty to make reasonable inspection of the portion of the premises remaining in his control to discover possible defects therein. Scibek v. O'Connell, 131 Conn. 557, 559, 41 A.2d 251; Aprile v. Colonial Trust Co., 118 Conn. 573, 580, 173 A. 237. The defendants do not question the correctness of these principles. They attack the court's conclusions that (1) a reasonable inspection of the premises would have disclosed that they were not in a reasonably safe condition, and (2) the defendants were negligent in not making such an inspection and in not using reasonable care to keep the premises in a reasonably safe condition, when, in the words of the defendants' brief, 'there was no evidence that [the landlords] knew of a defect or that a reasonable inspection would have disclosed it, so as to charge [them] with notice of its existence.' There is no claim that actual knowledge of the defendants was established. The court's conclusions are to be tested by the finding and not by the evidence. Davis v. Margolis, 107 Conn. 417, 422, 140 A. 823; City Bank & Trust Co. v. Ruthinian Greek Catholic Church, 102 Conn. 609, 611, 129 A. 785; Maltbie, Conn.App.Proc., § 96. The only question presented by the defendants' claim, therefore, is whether the subordinate facts properly found by the court support...