Malatesta v. Lowry

• Decision Date: 15 May 1961
• Docket Number: No. 21579,21579
• Parties: Joseph MALATESTA v. J. L. LOWRY.
• Court: Court of Appeal of Louisiana — District of US

Page 785

130 So.2d 785

Joseph MALATESTA v. J. L. LOWRY.

No. 21579.

Court of Appeal of Louisiana, Fourth Circuit.

May 15, 1961.

Frank J. D'Amico and Anthony J. Vesich, Jr., New Orleans, for plaintiff and appellant.

Graham & Graham, Louis B. Graham, New Orleans, for defendant and appellee.

Before McBRIDE, YARRUT and SAMUEL, JJ.

McBRIDE, Judge.

Defendant owns three dwelling apartments in New Orleans, bearing the Municipal Nos. 2425, 2427 and 2429 Melpomene Street, respectively, occupied by his tenants. Plaintiff, Joseph Malatesta, sues for a large amount as damages for personal injuries which he allegedly sustained in defendant's premises 'on or about the early part of June 1958' when the floor of a porch gave way with the result plaintiff's foot went through rotten boards. Several acts of negligence are ascribed to defendant, viz.: maintaining a dangerous floor; failure to make necessary repairs; allowing a trap to exist on the property; failure to warn plaintiff of the danger. Plaintiff endeavors to justify his presence on the premises by setting forth he was calling upon one of the tenants therein.

The pith of the defense is that plaintiff entered the premises in the role of a licensee; defendant alleges he is not responsible in damages in that he was not negligent because he had no knowledge or notice of any defects in the building. The answer sets forth specifically that the rotten condition of the porch which gave way was unknown to him.

After trial on the merits, the judge held plaintiff to be a licensee and found no act of negligence on the part of defendant; hence there was judgment dismissing the suit, from which plaintiff appeals.

LSA-C.C. art. 670 reads:

'Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.'

LSA-C.C. art. 2322 reads:

'The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.'

It is well settled in Louisiana that a property owner's liability for injury sustained by third persons (i.e. other than tenants) caused by defective buildings flows from one or both of the above-quoted codal articles. Klein v. Young, 163 La. 59, 111 So. 495; Ciaccio v. Carbajal, 142 La. 125, 76 So. 583; Thiel v. Kern, La.App., 34 So.2d 296; Coleman v. Rein, La.App., 4 So.2d 622; Heath v. Suburban Building & Loan Ass'n, La.App., 163 So. 546; Hanover v. Brady, La.App., 148 So. 267.

The jurisprudence teems with cases holding that a landlord is bound to know whether his building is safe for the purposes for which he rents or authorizes its use or is defective, rotten, or otherwise unsafe, and is answerable in damages, under the above articles, to third persons who being Lawfully or Rightfully therein are injured by reason of its defects, whether of original construction or caused by failure to make proper repairs. Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670; Klein v. Young, supra; Breen v. Walters, 150 La. 578, 91 So. 50; Ciaccio v. Carbajal, 145 La. 869, 83 So. 73; Allain v. Frigola, 140 La. 982, 74 So. 404; Wise v. Lavigne, 138 La. 218, 70 So. 103; Smith v. Hyman La.App., 6 So.2d 368; Roppolo v. Pick, La.App., 4 So.2d 839; Tesoro v. Abate, La.App., 173 So. 196; Hanover v. Brady, supra; Herbert v. Herrlitz, La.App., 146 So. 65; Vanosby v. Creidman, 15 La.App. 488, 131 So. 702.

In accordance with this general rule, it has been held where a third person is injured in the leased premises by a fall from defective steps, or by the collapse of a rotten gallery, or by the giving way of stairs, or by the collapse of a rotten wharf, or from falling plaster or other materials, or by a defective floor, the landlord is liable to the person injured, whether he was a guest, roomer, visitor of lessee, house-keeper, subtenant, daughter of subtenant, or the wife or child of the tenant, sister of lessee, or even a concubine. Frank v. Suthon, C.C., 159 F. 174; Hero v. Hankins, 5 Cir., 247 F. 664; Klein v. Young, supra; Shelton v. Masur, 157 La. 621, 102 So. 813; Breen v. Walters, supra; Plescia v. LeRoy, 148 La. 316, 86 So. 824; Thomson v. Cooke, 147 La. 922, 86 So. 332; Ciaccio v. Carbajal, 145 La. 869, 83 So. 73; 142 La. 125, 76 So. 583; Marshall v. Louisiana State Rice Milling Co., 144 La. 828, 81 So. 331; Badie v. Columbia Brewing Co., 142 La. 853, 77 So. 768; Allain v. Frigola, supra; Wise v. Lavigne, supra; Cristadoro v. Von Behren's Heirs, 119 La. 1025, 44 So. 852, 17 L.R.A.,N.S., 1161; Schoppel v. Daly, 112 La. 201, 36 So. 322; Knoop v. Alter, 47 La.Ann. 570, 17 So. 139; Barnes v. Beirne, 38 La.Ann. 280; Thiel v. Kern, supra; States v. Terranova, La.App., 4 So.2d 453; Hughes v. Abate, La.App., 2 So.2d 68; Hanover v. Brady, supra; Viola v. Convery, 10 La.App. 85, 122 So. 90; Pierre v. Levy, 3 La.App. 769.

In Davis v. Hochfelder, 153 La. 183, 95 So. 598, the wife of the tenant was allowed a recovery for injuries sustained in endeavoring to rescue her son from imminent asphyxiation by gas from a defective heater.

Malatesta, the instant plaintiff, does not occupy the same status quoad defendant as did any of the third persons above enumerated who were permitted to recover from the lessor or owner of the premises causing the injury. Malatesta sought to place himself in the category of invitee, but the trial judge called him a licensee. We find no foundation to plaintiff's story that he made entry onto the premises for the purpose of interviewing a woman in response to her call to him about a television set. His testimony is most vague and sketchy; for instance, he could not remember the date of the accident or how the woman contacted him or even her name; he thought he might have given her his card at some previous time; he placed the location of the woman's room at the head of the stairs, but defendant claims that this room was occupied by a male tenant named 'Sam.' Plaintiff counters defendant's statement by advancing the argumentative opinion that the woman may have been the man's companion. Malatesta does not say he had conversed with the woman before the accident unless the affirmative may be inferred from his statement that he was unsuccessful in making a sale. He claims, however, she assisted him after the accident.

Plaintiff had been an itinerant door to door salesman of household appliances for nine years; he walked about knocking on doors inquiring if anyone was interested in buying the articles he sold; according to his testimony he had made sales of merchandise to other tenants in defendant's apartments at previous times.

After a careful sifting and analysis of plaintiff's story, we are of the unwavering opinion that this man, on whatever date the accident happened, was making one of his indiscriminate calls on a door to door canvass and had not previously arranged the visit to the woman in the room at the head of the stairs. If the visit had been by prearrangement, it would be reasonable to assume he could have furnished more details than his testimony reflects.

Plaintiff went upon defendant's premises which were private, not business or commercial, on his own behalf in pursuit of his own economic interests and affairs. We do not mean to say he was not rightfully or was unlawfully in the premises for in those events he would have been a mere trespasser.

This appeal poses for answer the questions, What was plaintiff's classification, whether invitee or licensee, and what duties were owed by the property owner to him?

In Alexander v. General Accident Fire & Life Assurance Corp., 98 So.2d 730, 731 (certiorari denied), the late Court of Appeal for the First Circuit gave the following definitions, respectively, of a trespasser, a licensee and an invitee and set forth the duties owed each, viz.:

'(1) A trespasser is one who enters the premises without the permission of the occupier or without a legal right to do so; and towards the trespasser no duty exists in most instances except to refrain from willfully or wantonly injuring him.

'(2) A licensee is one who enters the premises with the occupier's express or implied permission, but only (according to the conventional description) for his own purposes which are unconnected with the occupant's interests; and to him in addition to the duty owed to a trespasser, is owed the duty of warning the licensee of latent dangers of the premises If actually known by the occupier.

'(3) An invitee is a person who goes on the premises with the express or implied invitation of the occupant on the business of the latter or for their mutual advantage; and to him, the duty owed is that of reasonable and ordinary care, which includes the prior discovery of Reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger.' (All italics by the court.)

In Myers v. Gulf Public Service Corporation, 15 La.App. 589, 132 So. 416, an invitee was defined to be a person on the premises by invitation which requires a common interest or a mutual advantage, while a licensee was said to be one on the premises merely for his own pleasure or benefit.

In a note discussing Mercer v. Tremont & G. Ry. Co., La.App., 19 So.2d 270 (certiorari denied), Louisiana Law Review, Vol. VI, at page 302, states:

'It is generally held that one whose status is that of a licensee accepts the premises as he finds them and must be alert for his own safety. The only duty owed a licensee is that of warning him of dangerous conditions which are known to the occupier and which the licensee could not be expected to discover for himself. On the other hand, the business guest, or invitee, as he is sometimes called, is entitled to assume that preparations for...