Lamont v. Central Real Estate Co.

Decision Date26 July 1972
Docket NumberNo. 1576-A,1576-A
Citation294 A.2d 195,110 R.I. 438
CourtRhode Island Supreme Court
Parties, 67 A.L.R.3d 579 Eleanor LAMONT et al. v. CENTRAL REAL ESTATE COMPANY, Inc. ppeal.
John P. Bourcier, Providence, for plaintiffs
OPINION

KELLEHER, Justice.

The plaintiffs are husband and wife. The defendant owns an office building situated at 112 Mathewson Street in downtown Providence. The plaintiffs instituted this negligence action to recover damages sustained as the result of the wife falling down a flight of stairs located at the Mathewson Street address. Trial was held before a Superior Court jury which awarded the wife $43,300 and returned a verdict on the husband's claim for consequential damages in the amount of $1,700. The trial justice denied the defendant's motion for a new trial. On its appeal, the defendant claims that the trial justice erred in denying its motion for a directed verdict and its motion for a new trial. It also contends that several erroneous evidentiary rulings were made during the course of the trial. Since the success of the husband's claim is dependent upon the defendant's liability for the wife's injuries, we shall discuss only the wife's claim. Hereafter, we shall sometimes refer to her as the 'plaintiff,' or the 'wife' or 'Mrs. Lamont.'

The wife's fall occurred in the late afternoon of July 13, 1964. She had gone to the second floor of defendant's building to make a payment on a loan due one of defendant's tenants-Belmont Finance Company. The fall occurred on a stairway leading from the street to the second floor. The stairway was the sole means of access to the second floor.

The litigation was begun in July, 1966. At that time plaintiff filed a complaint alleging that her fall was the result of the cleaning of the stairway with a wax or polishing substance which made the stairway slippery and dangerous to a person using it. She alleged that defendant was under a duty to warn those entering the building of this hazard. Subsequently, in July, 1968, in her answer to defendant's interrogatories, plaintiff stated that as she started down the 'dimly lighted' stairway, she slipped on what felt like a 'puffy' tread and fell down the stairway. At the trial, the evidence related solely to puffiness and the lack of adequate illumination on the stairway. Since this evidence was introduced without any objection from defendant, the variance between the allegations in the pleading and the proof is of no significance. Fishbein v. Zexter, 107 R.I. 672, 270 A.2d 510 (1970); Halpert v. Rosenthal, 107 R.I. 406, 267 A.2d 730 (1970); Cofone v. Narragansett Racing Ass'n, 103 R.I. 345, 237 A.2d 717 (1968).

Sometime prior to July 13, 1964, Mrs. Lamont had cosigned a loan note for a couple who had received a loan from the finance company. When the couple defaulted in their payments, plaintiff, under a threat of having her pay attached, took up the weekly payments on the balance due. She was employed as a secretary in the engineering department of a manufacturer located in Cranston. Consequently, on most Monday afternoons, Mr. Lamont would pick up his wife at her place of employment and drive her into Providence. The wife would go to the finance company's office and make a payment on the loan.

July 13, 1964 was payment day at the finance company. Mrs. Lamont arrived at 112 Mathewson Street at approximately 5:10 p.m. It was a cloudy and bleak day. She entered defendant's premises and walked up the stairs to the seconf floor. She made her payment, left the finance company's office and walked over to the stairway. The stairway leading from the second floor to the entranceway or vestibule at 112 Mathewson Street is composed of two flights of stairs. The entire stairway, including the steps, rises and landings, is composed of wood which had been completely covered with a rubber tile designed especially for stairways. The tile had been installed about eight years earlier in 1956.

A person descending the stairs first walks down a flight of three or four steps and then arrives at a landing. He makes a right-angle turn and then descends a second flight of some 17 or 18 steps to a landing which puts one in a vestibule just inside the Mathewson Street entrance.

After Mrs. Lamont made her payment to the finance company, she started down the stairs. She walked down the first four steps to the first landing, turned right and then walked to the first step preparatory to starting down the second flight of stairs. As she placed her foot on the edge of the landing which was covered with the rubber asphalt tile, her heel sank into the floor. The edge, she said, felt 'puffy' and she heard a hissing sound. The wife was pitched forward. She grabbed for the handrail but before she could help herself, she fell down the 17 or 18 steps and landed face down on a rubbercleated wire mat which lay at the foot of the stairway. Mrs. Lamont was knocked unconscious. The rescue squad was summoned and plaintiff was taken to the Rhode Island Hospital. The injuries she incurred were substantial. They necessitated hospitalization and subsequent confinement at home until mid-December, 1969.

In its appeal, defendant landlord concedes that it was duty bound to keep its stairway in a reasonably safe condition for the wife since she was a business invitee of one of its tenants. It took no exception to the trial justice's charge that it was obligated to adequately illuminate the stairway. In pressing its objection to the denial of its motion for a directed verdict, defendant argues with considerable force that the record is devoid of any evidence which shows that it could be charged with either actual or constructive notice of the puffy tile.

The wife claims that the puffiness in the tile covering the edge of the landing was a defect which caused her calamitous fall. The puffiness was caused because the adhesive substance which cemented the tile to the flooring had 'let go' so that the tile had separated from the flooring leaving a space between the floor and the tile.

It is black letter law that when a defendant moves for a directed verdict, the trial justice does not pass upon the weight of the evidence or the credibility of witnesses but must submit the case to the jury if on any reasonable view of the evidence, including the reasonable inferences to be drawn therefrom, the plaintiff can recover. If the evidence is open to different interpretations, one favorable and the other unfavorable to the plaintiff, the motion for a directed verdict should be denied. What credit should be given testimony of plaintiff considering the inconsistencies or discrepancies in her testimony is for the jury to determine. Russian v. Lipet, 103 R.I. 461, 238 A.2d 369 (1968); Elias v. Hartford Fire Ins. Co., 122 A. 529 (R.I.1923).

The most significant portion of evidence which would make defendant chargeable with notice of the puffy tile was brought out during the cross-examination of Mrs. Lamont. She first told the court and jury that she had gone to the finance company's office at least ten times prior to July 13, 1964. Later, as the cross-examination began to zero in on the issue of notice, the following exchange occurred:

'77 Q Now, how deep did your feet sink into this linoleum?

A I don't know. I don't suppose to any great extent.

'78 Q Had you ever noticed this condition before?

A Well,-

'79 Q Yes, or no?

A I don't think I had, no. It was just, as I say, they're just generally shiny, the stairs were.

'80 1 Q I mean, you could see out this stairway from the glass door (leading from the finance company to the second floor corridor), but I never noticed it except everyone is careful when you go to walk up or down stairs, I think.

'81 Q But did you ever notice this puffiness on the top stairs?

'A Well, frankly, I couldn't say. It seemed to me that there was always a little give, if you call it that.

'82 Q Did you ever tell anybody about it?

A Well, no; because, I mean, whom should I tell?

'83 Q I don't know.

A I don't think I would either.'

Having in mind that the reconciliation of the inconsistencies in a witness's testimony is the job of the jury, it, as the fact finder, could have found that since Mrs. Lamont was ever faithful in her weekly discharge of her obligation to defendant's tenant, the puffy condition in the tile at the landing's edge had existed for such an interval of time that defendant landlord or its employees should have discovered its presence. That such an inference was susceptible from the questions is demonstrated by counsel's inquiry of Mrs. Lamont as to...

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