Kroll v. Katz

• Decision Date: 01 April 1964
• Docket Number: No. 32,32
• Parties: Walter F. KROLL, Plaintiff and Appellant, v. Zessie R. KATZ, d/b/a Z. R. Katz Investment Company, Defendant and Appellee. ,
• Court: Michigan Supreme Court

Page 27

132 N.W.2d 27

374 Mich. 364

Walter F. KROLL, Plaintiff and Appellant, v. Zessie R. KATZ, d/b/a Z. R. Katz Investment Company,

Defendant and Appellee.

No. 32, April Term, 1964.

Supreme Court of Michigan.

Jan. 5, 1965.

Charfoos & Charfoos by Samuel Charfoos and Donnelly W. Hadden, Detroit, for plaintiff and appellant.

Bernstein & Bernstein, by Edwin S. Moag, Detroit, for defendant and appellee.

Before the Entire Bench.

KAVANAGH, Chief Justice.

Plaintiff brought this action in August 1959 to recover for injuries sustained by him on August 4, 1958. He was instructed by his employer to go to a house on West Hancock street in the city of Detroit to make plumbing repairs, which had been requested by defendant. On arrival at the vacant house, plaintiff noticed water running over the bathroom floor. While going to the basement to turn off the water, one of the wooden steps leading to the basement cracked under him. Plaintiff lost his balance and, in attempting to regain it, he lunged toward the bottom step. The bottom step was missing. He fell, twisted his ankle, and injured his back and head severely.

Plaintiff's declaration alleged that his injuries were the result of defendant's negligence in that:

'a) Defendant failed to maintain an adequate and safe stairway for access to and from the basement.

'b) Defendant failed to supply adequate lighting over the stairway, thus increasing the unknown hazards of the stairway.

'c) Plaintiff was an invitee on the premises, thus defendant had a duty to discover dangerous defects and either repair them or give plaintiff adequate warning.

'd) Defendant breached his duties to plaintiff invitee and said breach was the cause in fact and the proximate cause of plaintiff's injuries.'

Defendant answered denying ownership of the premises and denying the other allegations. He denied knowledge that a step was missing. He affirmatively asserted the defense of contributory negligence.

The case was tried to a jury, which returned a verdict for plaintiff in the amount of $8,000.

Defendant made a motion for directed verdict both at the end of plaintiff's proofs and at the conclusion of the trial. The trial court reserved these motions under the Empson Act.

In his charge to the jury the trial court ruled that plaintiff was an invitee of defendant who, as vendor of the house under a defaulted land contract during the period of redemption, was in control and possession of the premises. The trial court granted defendant's motion for judgment non obstante veredicto. In a written opinion the court held that plaintiff had not shown knowledge on the part of defendant as to the missing step, and that there was nothing in the record to show when this step was removed. He then cited the fact plaintiff's employer had made no mention of any missing step a day or 2 before the accident when he had gone down the same stairs considered further the testimony of defendant and a defense witness that they did not know the step was missing, and stated:

'Considering the fact that plaintiff's employer had made no mention of any missing step a day or 2 before the accident, and considering further the testimony of the defendant and his witness Mitnick the only inferences that can be drawn therefrom lead to the conclusion that the step had not long been missing. The evidence presents no interval of time during which it can be said that the defendant had the opportunity to observe this condition and correct it.'

The trial court then concluded:

'[T]he mere existence of defects or of a dangerous condition is not enough to establish the liability of the defendant unless it is also shown that such defects or condition were of such a character or had existed for such a period of time that the jury might reasonably conclude that by the use of due care the defendant would have discovered such defects or danger and taken the necessary action to correct the defects and remove the danger. The proofs presented to the jury were completely lacking in this regard and did not permit a conclusion or finding on the part of the jury that the defendant knew, or should have known, of the conditions, to-wit: the step which broke and the missing step, that caused the plaintiff's fall and his resulting injuries.'

From judgment in accordance with this opinion, plaintiff appeals.

One question is presented by plaintiff:

'Considering the evidence in the light most favorable to the plaintiff, is there any evidence of negligence to support the unanimous verdict of the jury?'

That the above question is determinative of the appeal is evident by reference to Sparks v. Luplow, 372 Mich, 198, at p. 202, 125 N.W.2d 304, at p. 306, where this Court stated:

'It is a well-settled principle of law that on review of a trial court's refusal to grant a motion for a directed verdict or judgment non obstante vereicto, the facts are reviewed in the light most favorable to plaintiff. Tacie v. White Motor Co., 368 Mich. 521, 527, 118 N.W.2d 479. The test used is whether from the facts in the light most favorable to plaintiff, reasonable men could honestly reach a different conclusion. If the answer to this is 'yes,' the question is for the jury. Anderson v. Gene Deming Motor Sales, Inc., 271 Mich. 223, 123 N.W.2d 768.'

That rule applies likewise on review of the granting of such a motion.

The favorable-to-plaintiff view of the evidence in this case reveals these facts and proper inferences: defendant admittedly descended the subject stairs shortly before the accident to inspect the basement and looked closely enough to find plumbing and electrical fixtures missing and discovered that the basement was dark; plaintiff's exhibit 2 (the photograph included herein, which was testified to by plaintiff as representative of the condition at the time of the accident, except that a thicker plank had replaced the broken second step), indicates graphically the angle of the stairs, the thinness of the treads, the absence of a handrail, and the irregularity of vertical distance between treads of the stairs, caused by the fact the bottom step was missing.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Might the jury properly have found from the condition of the stairs as shown by the photographic exhibit, and the darkness of the basement, that defendant on his visit to the basement before the accident did discover or, in the exercise of reasonable care, then, or subsequently, should have discovered that the situation was dangerous, and, in the exercise of reasonable care, should have either remedied the danger or warned plaintiff of its existence?

In Torma v. Montgomery Ward & Co., 336 Mich. 468, 58 N.W.2d 149, this Court stated the applicable rule:

'[M]ay it properly be said that plaintiff failed to establish a prima facie case of liability on the part of the defendant? As invitor the defendant owed the duty to its customers and patrons, including the plaintiff, of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury. In Blakely v. White Star Line, 154 Mich. 635, 118 N.W. 482, 483, 19 L.R.A.,N.S., 772 this Court quoted with approval from Cooley on Torts (p. 605) as follows:

"'One is under no obligation to keep his premises in a safe condition for [the visits of] trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business, or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises [reasonably] safe for the visit."' (pp. 476, 477, 58 N.W.2d p. 153)

'The rule as to the length of time that a given condition must obtain in order to charge one, sought to be held liable for resulting damages, with constructive notice, varies with the facts and circumstances involved and with the basis for the liability claimed.' (p. 486, 58 N.W.2d p. 158)

In Cruz v. City of Saginaw, 370 Mich. 476, at p. 481, 122 N.W.2d 670, at p. 673, this Court again spoke about constructive notice of hazardous property defects:

'Generally, the question whether a street defect, otherwise actionable against the municipality, 'has existed a sufficient length of time and under such circumstances that the municipality is deemed to have had notice is a question of fact, and not a question of law.' Hendershott v. City of Grand Rapids, 142 Mich. 140, 143, 105 N.W. 140; followed in Torma v. Montgomery Ward & Co., 336 Mich. 468, 487, 58 N.W.2d 149. The opinion of witness Barnes, the size and nature of the hole in the pavement, the proximity thereof to the municipal parking lot and city employees occasionally working there, call fairly for conclusion that the issue of prior notice of the existence of the hole was--under Hendershott's stated rule--one of fact and that the trial judge had a right to determine it as he did. Such conclusion finds support in Goldsmith v. Cody, 351 Mich. 380, 88 N.W.2d 268, citing to the point Siegel v. Detroit City Ice & Fuel Co., 324 Mich. 205, 36 N.W.2d 719 and Yarington v. Huck, 218 Mich. 100, 187 N.W. 298; also in Hulett v. Great Atlantic & Pacific Tea Co., 299 Mich. 59, 299 N.W. 807.'

The Hendershott Case quotation cited in Cruz v. City of City of Saginaw, supra, is immediately followed in Hendershott by the statement (142 Mich. p. 143, 105 N.W. p. 141):

'The judge cannot say that, if the defect has existed for a certain time, that would of itself be deemed constructive notice.'

The Siegel Case cited in Cruz contains the following statement (324 Mich. pp. 211, 212, 36 N.W.2d 719, 722):

'In Yarington v. Huck, 218 Mich. 100, 187 N.W. 298, we affirmed a judgment for plaintiff who tripped and fell as she entered the door of defendant's restaurant, she claiming that she...