Massor v. Yates

• Decision Date: 13 October 1931
• Citation: 137 Or. 569,3 P.2d 784
• Parties: MASSOR v. YATES et ux.
• Court: Oregon Supreme Court

3 P.2d 784

137 Or. 569

MASSOR v. YATES et ux.

Supreme Court of Oregon

October 13, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; Orlando M. Corkins Judge.

Action by Clara Massor against A. W. Yates and another. From a judgment against defendants, they appeal.

Affirmed.

T. G. Ryan, of Portland (David Sandeberg, of Portland, on the brief), for appellants.

Paul R Harris and C. D. Purcell, both of Portland (Davis & Harris and C. D. Purcell, all of Portland, on the brief), for respondent.

BELT J.

This is an action in tort for personal injuries. Plaintiff, an elderly woman, was a tenant in an apartment house owned and operated by defendants in the city of Portland. On January 30, 1929, about 9:30 in the morning, she was severely injured by falling on steps covered with snow and ice. These steps were used by the various tenants as a common entrance to the apartment house. Verdict and judgment were had for plaintiff in the sum of $2,500. Defendants appeal.

The denial of the motions for nonsuit and directed verdict presents the question as to the liability of a landlord to a tenant who is injured as a result of the failure of the landlord to remove snow and ice from a common passageway. The authorities are in conflict. See cases in note, 25 A. L. R 1301. It is a new question in this state.

The steps used by the plaintiff and the other tenants were unquestionably under the control of the landlord. They were not a part of the estate demised to the plaintiff. It was not her duty to clear the steps of snow and ice. She had no authority over the same. This common passageway was a part of the estate reserved by the landlord for the use and benefit of all of the tenants occupying the apartment house. In 16 R. C. L. 1037 and general rule-well supported by authority-is thus stated: "*** Where he (the landlord) retains possession of a portion of the leased premises for use in common by different tenants, a duty is by law imposed upon him to use ordinary care to keep in safe condition this particular part of the leased premises, and if he is negligent in this regard, and a personal injury results to a tenant by reason thereof, he is liable therefor."

Most courts apply this rule by requiring the landlord to maintain and keep common entrances in a reasonably safe structural condition, but the divergence of opinion arises over the duty of the landlord to exercise reasonable diligence in keeping them free of such transitory obstructions as snow and ice. In 36 C.J. 219, it is said: "According to the weight of authority, there is no duty on the part of the landlord to his tenant to remove from the roof, steps, or walk, snow or ice which naturally accumulates thereon, and he is not liable for injuries caused thereby"-citing many authorities in support of the text.

In what might be referred to as the Massachusetts doctrine, the landlord, in the absence of an express or implied contract to do so, is not under obligation to remove show or ice from a common passageway. Erickson v. Buckley, 230 Mass 467, 120 N.E. 126; Nash v. Webber, 204 Mass. 419, 90 N.E. 872. In other words, if the landlord takes upon himself the duty of keeping stairways and steps used in common by different tenants clear of snow and ice, he must exercise reasonable diligence in guarding against such danger, and, upon his failure so to do, damages may be recovered.

If it is the duty of a landlord to make repair of structural defects of which he has notice, in a common passageway, it is difficult to see why he is not likewise under duty to remove snow or ice accumulated on steps under such circumstances as to become dangerous to the different tenants obliged to use the entrance way. In our opinion, the distinction is not based upon sound logic or reason. As stated in Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 706, 39 A. L. R. 287: "Approaching the question from the standpoint of principle, we are wholly unable to justify the Massachusetts rule. The duty of the landlord being to exercise reasonable care to prevent the occurrence of defective or dangerous conditions in the common approaches, the fact that a particular danger arose from the fall of snow or the freezing of ice can afford no ground of distinction. Indeed, the causes which are at work to produce it are no more natural causes than are those which, more slowly, bring about the decay of wood or the rusting of iron. To set set apart this particular source of danger is to create a distinction without a sound difference."

The Massachusetts rule is likewise criticized in the well-reasoned case of United Shoe Mach. Corp. v. Paine (C. C. A.) 26 F. (2d) 594, 58 A. L. R. 1398. In the one case, as in the other, if the landlord has notice of a dangerous condition of a way reserved by him for the use and benefit of his tenants, it is his duty to exercise reasonable diligence to protect them from such danger. We think the better rule to be that a landlord who knows, or ought to know, of a dangerous condition of a common passageway caused by the accumulation of snow or ice is bound to exercise reasonable diligence to remove the danger. We see no sound reason to restrict the duty of the landlord to the maintenance of the passageway to the suitable repair of structural defects. Reardon v. Shimelman, su...