Marsh v. Riley.

• Decision Date: 01 December 1936
• Docket Number: (No. 8397)
• Citation: 118 W.Va. 52
• Court: West Virginia Supreme Court
• Parties: Marguerite Marsh, Infant, v. T. S. Riley et al.

118 W.Va. 52

Marguerite Marsh, Infant,

v.T. S. Riley et al.

(No. 8397)

Supreme Court of Appeals of West Virginia.

Submitted November 10, 1936.

Decided December 1, 1936.

1. Landlord and Tenant

In the absence of a special contract, the law imposes on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants. So far as a breach of this obligation subjects the landlord to liability for bodily harm, the obligation is a tort duty. But the duty arises from the tenancy and its character defines the extent of the landlord's care. This care is that ordinarily requisite for the safety of normal tenants. There being different kinds of tenancies, the standard of care naturally varies somewhat with each kind. A family-apartment tenancy requires of the landlord the care due the ordinary family of normal habit.

2. Landlord and Tenant

An instruction requiring ordinary care of a landlord to maintain equipment used in common by his tenants, so that it "would not constitute a danger" to them is erroneous.

Error to Circuit Court, Ohio County.

Action by Marguerite Marsh, infant, against T. S. Riley and others. To review an adverse judgment, plaintiff brings error.

Affirmed.

Handlan, Garden & Matthews and Lester C. Hess, for plaintiff in error.

Hall, Goodwin & Paul and Riley & Riley, for defendants in error.

Hatcher, President:

Charging the landlord with knowingly maintaining an unsafe water-heater in his tenement house, the plaintiff recovered a verdict for injuries allegedly occasioned by the heater. The trial court set the verdict aside.

Several rental apartments had a common bathroom. The bath water was heated in a tank by a gas stove, located about fourteen inches off the bathroom floor near the spigot end of the bathtub. The stove door had no latch and without a fastening of some kind would not remain closed. According to evidence for defendants, the door was provided with an effective wire hook; according to evidence for plaintiff, the hook had been off, to the knowledge of the landlord, for several months before her accident. She is the child of an apartment tenant and was aged three years and four months. On the occasion of her injury, she was sent by her mother, unattended, from their apartment to the bathroom. Mrs. Marsh stated she knew at the time that the heater door was ajar. A few minutes later, the child appeared at the door of another tenant near the bathroom, with her clothing in flames. He smothered the flames, but she was terribly burned. Some time afterwards, it was found that the bathtub was full of running water, a shoe and stocking of plaintiff were in the water, the stove door was open, and the gas was burning.

The authorities are not entirely harmonious on the duty of a landlord in such cases; so we state with some particularity our conception of his duty. In the absence of a special contract, the law imposes on the landlord the duty to exercise ordinary care to maintain in reasonably safe condition the premises owned by him and used in common by different tenants. Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530, 536, 70 S. E. 126, 33 L. R. A. (N. S.) 1061; Wardman v. Hanlon, 52 App. D. C. 14, 280 Fed. 988, 991, 26 A. L. R. 1249; Peterson V. Zaremba, 110 N. J. Law, 529, 166 A. 527, 528; Karp v. Barton, 164 Mo. App. 389, 144 S. W. 1111; Burette v. Pienkofski, 84 N. H. 200, 148 A. 24; Restatement, Torts, sec. 360; 36 C. J. subject Landlord and Tenant, secs. 887, 913; 16 R. C. L. subject Landlord and Tenant, secs. 557-8. So far as a breach of this obligation subjects the landlord to liability for bodily harm, the obligation is a tort duty. Wardman v. Hanlon, supra; 18 Ency. of Proc. 465. But the duty arises from the tenancy, and its character defines the extent of the landlord's care. This care is that ordinarily requisite for the safety of normal tenants, because without special contract, a landlord could not be expected to conform his premises or his conduct to abnormalities of person or habit. There being different kinds of tenancies, the standard of care naturally varies somewhat with each kind. A. family apartment tenancy requires of the landlord the care due the ordinary family of normal habit. It is common knowledge that ordinary parental supervision does not restrain immature children from occasionally visiting the bathroom unattended. A landlord is charged with that knowledge, and should take ordinary care to maintain a bathroom used in common by tenant families in a reasonably safe condition for children. We recognize that respectable authority measures the care due a member of a tenant's family solely by the care due the tenant himself. However, we cannot...