Lewis v. Kasimer

• Decision Date: 28 June 1965
• Citation: 211 A.2d 837,153 Conn. 13
• Court: Connecticut Supreme Court
• Parties: Viola LEWIS v. Fannie KASIMER. Supreme Court of Errors of Connecticut

Page 837

211 A.2d 837

153 Conn. 13

Viola LEWIS v. Fannie KASIMER.

Supreme Court of Errors of Connecticut.

June 28, 1965.

William J. Cousins, New Haven, for appellant (plaintiff).

George E. McGoldrick, New Haven, with whom, on the brief, was David E. Fitz-Gerald, Jr., New Haven, for appellee (defendant).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Acting Justice.

The plaintiff, a tenant of the defendant, brought this action to recover damages for personal injuries resulting from a fall alleged to have been caused by the negligence of the defendant in failing to maintain a stairway in a reasonably safe condition. The trial court, on the motion of the defendant, set aside the verdict for the plaintiff and rendered judgment for the defendant notwithstanding the verdict because on the pleadings the question of control was the decisive issue and, as a matter of law, the evidence was insufficient to show that the defendant retained or agreed to retain control of the allegedly defective portion of the leased premises. The plaintiff has appealed.

Since the parties agreed that the defendant's husband was her authorized agent, in the interest of simplicity this court, where feasible, will conform to the terminology employed in their briefs and arguments and refer to the husband's agreements and actions as those of the defendant.

In reviewing the decision of the trial court on the motion to set aside the verdict and for judgment notwithstanding the verdict, we must consider the evidence printed in the appendices to the briefs in the light most favorable to the plaintiff. Practice Book § 641; Chanosky v. City Building Supply Co., 152 Conn. ----, 211 A.2d 141; Kingston v. Blake, 151 Conn. 714, 715, 201 A.2d 460; Grills v. Pepsi-Cola Bottling Co., 151 Conn. 627, 628, 201 A.2d 185.

Under this rule, the jury could have found the following facts: The defendant owned three dwellings known as 672, 674 and 678 Orchard Street, in New Haven. The three separate buildings were on one lot with access to the rear of each by a common driveway. While two families lived in 672 and three families in 678, 674 was a single-family house occupied by the plaintiff and her son. The plaintiff first rented the house in April, 1960, on a month-to-month tenancy. There were two keys to the front door. The defendant gave one to the plaintiff and retained the other, saying, 'I'm keeping one so if any repairs to be done, I can do it.' The defendant also said: 'When anything wrong with the house to let me know and I will repair it.' All the defendant's tenants disposed of garbage and rubbish in cans located in the rear of 672, the plaintiff using a path from the rear of her house to the garbage and trash depository. To enter and leave the rear of the house occupied by the plaintiff, it was necessary to use two steps, which were in a unit resembling a stepladder in construction, the top of the steps being nailed to the house and the bottom resting on the ground. The defendant's husband customarily cleaned the snow from the path and these steps as well as from the walks around the three dwellings. He was in and about the premises at least once a week and from time to time inspected them, including the steps in the rear of the house occupied by the plaintiff. He testified that if the steps appeared to him to need repair he would immediately repair them without being told by the plaintiff to do so.

During her occupancy, the plaintiff had never made any repairs herself. Whenever anything needed fixing, she would tell the defendant's husband, and he or his son would attent to it, pursuant to an agreement with the plaintiff that the defendant would take care of any repairs provided the plaintiff let the defendant know they were needed. The plaintiff had never noticed anything wrong with the back steps and had never made any complaint about them to the defendant. The only time the defendant was in the house for any purpose other than to make repairs which the plaintiff had asked to be made was once when she requested repairs to a toilet bowl, which the defendant replaced, and then subsequently reentered to instal a new seat on the same toilet since the old seat on the new bowl 'didn't look good enough.' The plaintiff and her son worked and were, consequently, absent from the house all day. They kept the back door barred from the inside so entry to make any repairs was made through the front door by use of the retained key.

In April, 1962, the plaintiff and her son were the only persons living in the house. Between 7:30 and 8:0 a. m. on April 20, Amos Williams, a boarder, showed the defendant's husband the back steps. He saw their condition and that they were a little weak, and he told Williams that he would take care of them. About 10:30 the same morning, as the plaintiff used the steps, they 'came aloose all in one piece' and she fell, injuring herself. She called the defendant's husband, who, finding that the steps had to be replaced, removed them and nailed up the back door by putting two pieces of wood across it. The defendant's husband told the plaintiff to go to a doctor and that 'he would take care of it.' The defendant replaced the steps, and, during the two weeks that it took to...