Masterson v. Atherton

• Decision Date: 16 January 1962
• Court: Connecticut Supreme Court
• Parties: Frances T. MASTERSON, Administratrix (ESTATES of Gerald T. MASTERSON, Sr., and Gerald T. Masterson, Jr.), et al. v. Nellie ATHERTON. Supreme Court of Errors of Connecticut

Page 592

179 A.2d 592

149 Conn. 302

Frances T. MASTERSON, Administratrix (ESTATES of Gerald T MASTERSON, Sr., and Gerald T. Masterson, Jr.), et al. v. Nellie ATHERTON.

Supreme Court of Errors of Connecticut.

Jan. 16, 1962.

John F. McGowan, Bridgeport, with whom was John J. Cotter, Bridgeport, for appellant (defendant).

Theodore I. Koskoff, Bridgeport, with whom was Joseph W. Knott, Bridgeport, for appellees (plaintiffs).

Before BALDWIN, C. J., KING and MURPHY, JJ., and ALCORN and MacDONALD, Superior Court Judges.

KING, Associate Justice.

Shortly after 1 a. m. on January 6, 1959, a very cold and windy night, a fire broke out in the cellar of the north duplex apartment in a two-family house in Stratford owned by the defendant. The apartment was occupied under an oral month-to-month tenancy by the Masterson family, consisting of the plaintiff Frances T. Masterson's decedent and husband, Gerald T. Masterson, Sr.; Frances T. Masterson herself; and their four minor children, the plaintiffs Lynn F. Masterson, Richard G. Masterson and Paul J. Masterson, and Frances T. Masterson's other decedent, Gerald T. Masterson, Jr. Gerald T. Masterson, Sr., and Gerald T. Masterson, Jr., who was two and one-half years old, died as a result of the fire. The others in the family claimed to have received personal injuries. In all, six causes of action were tried together, four for personal injuries and two for the wrongful deaths of the decedents. The amount awarded by the jury for the death of Gerald T. Masterson, Jr., was originally $35,000, but a remittitur of $10,000 was filed. The award, even as so reduced, is claimed on this appeal to be excessive. Claims that the other awards are excessive have been abandoned.

There was abundant evidence, and the parties were in virtual agreement, that the cause of the fire was an overheated hot-air furnace which ignited portions of the woodwork near the furnace or chimney. The conflagration started in the area of the cellar above the furnace. There was also evidence that the fire 'mushroomed up through the walls.' The defendant's claim was that heat ascended from the furnace through the flue into the chimney and caused the chimney to overheat, with the result that the wooden flooring surrounding and in direct contact with the chimney ignited. The plaintiffs' claim seems to have been that heat rising from the top of the furnace and the ducts ignited the woodwork, beams or ceiling above them. There was little, if any, evidence from which the jury could determine which claim, if either, was correct. It is important to note, however, that there was no evidence that actual flame or sparks escaped from within the furnace or any part of it so as directly to ignite any woodwork or other combustible material. As far as the evidence shows, heat from the furnace, not flame or sparks, caused the woodwork to ignite.

The jury brought in awards in varying amounts for all six plaintiffs. The basic claim in this appeal is that there is no evidence from which the jury could find for the plaintiffs and that therefore the court was in error in not rendering judgment for the defendant notwithstanding the verdict, or, at least, in not setting aside the verdict as against the law and the evidence on the issue of liability.

It was not disputed that the Masterson family had continuously occupied the apartment during the ten years prior to the date of the fire; that during that time there had been no structural changes involving the furnace or its position in relation to adjacent woodwork; that the Mastersons' occupancy during the entire period had been under an oral month-to-month lease at a rental of $43 monthly; and that each apartment, including its portion of the cellar, was physically separate and had its own furnace. The furnace, air ducts and cellar ceiling in question were therefore within the demised premises. Torre v. DeRenzo, 143 Conn. 302, 306, 122 A.2d 25.

The plaintiffs seem to assert the following defective conditions, although their claims on this vital point lacked clarity: (a) the failure to have fire stops; (b) the absence, or improper design, of an inner liner in the furnace; (c) the inadequacy of the heating capacity of the furnace; (d) the furnace's improper type of return air system; (e) the lack of insulation on the furnace bonnet and air ducts and on the beams and woodwork near the top of the furnace and the air ducts; and (f) cracks in the furnace and in the inner liner (if there was any), claimed to have resulted from the negligence of a person who repaired the furnace in 1957 at the behest of the defendant.

Ordinarily, a tenant takes the demised premises as he finds them, and the landlord is not liable for defective conditions (that is, conditions making the premises not reasonably safe for the reasonably to be anticipated uses which the tenant would make of them) within the demised area. Smith v. Housing Authority, 144 Conn. 13, 16, 127 A.2d 45; Seaman v. Henriques, 139 Conn. 561, 567, 95 A.2d 701; White v. DeVito Realty Co., 120 Conn. 331, 334, 180 A. 461; Valin v. Jewell, 88 Conn. 151, 157, 90 A. 36, L.R.A.1915B, 324. While the general rule has often been phrased as an assumption by the tenant of the risk of defective conditions within the demised premises, the phrase 'assumption of risk' is somewhat misleading, in Connecticut at least, since it suggests that the landlord must allege and prove, in an affirmative defense, the assumption of risk by the tenant. This is not the law. The use of the phrase 'assumption of risk' in this connection is avoided by many, if not most, skilled text writers. See, for instance, 2 Harper & James, Torts § 27.16; 1 Tiffany, Landlord and Tenant § 86; Restatement, 2 Torts § 358. Assumption of risk in its true factual sense, under an affirmative defense, is illustrated in Dean v. Hershowitz, 119 Conn. 398, 411, 177 A. 262, and Ziulkowski v. Kolodziej, 119 Conn. 230, 234, 175 A. 780, 96 A.L.R. 1065.

The general rule has, however, certain exceptions or at least apparent exceptions. The burden is on the tenant to allege and prove the facts necessary to take his case out of the general rule of 'caveat emptor' as to defects within the demised premises by alleging and proving that he is within one or more of the exceptions. Valin v. Jewell, supra, 88 Conn. 155, 90 A. 36; Martel v. Malone, 138 Conn. 385, 388, 85 A.2d 246. In the first place, the rule does not apply to defects, whether resulting from faulty design or from disrepair, existing at the beginning of the tenancy, if they (a) were not discoverable on reasonable inspection by the tenant, and (b) were defects with a knowledge of which the landlord was chargeable. Shegda v. Hartford-Connecticut Trust Co., 131 Conn. 186, 191, 38 A.2d 668; Seaman v. Henriques, supra; DesMarchais v. Daly, 135 Conn. 623, 626, 67 A.2d 549; and cases cited therein; see Restatement, 2 Torts § 358, comment a. It should be noted that actual knowledge, by the tenant, of a given defect is fatal to his case, even if the defect was not discoverable upon reasonable inspection. Shegda v. Hartford-Connecticut Trust Co., supra.

There was no evidence that the lack of an asbestos covering over the pipes or the bonnet of the furnace, or the uninsulated woodwork above and around the top of the furnace, or the proximity of the furnace or the overhead pipes to the unprotected woodwork, or the claimed defective design of the return air system was not discoverable by the tenants upon reasonable inspection. Indeed, that they were so discoverable was testified to by Walter J. Douglas, a plaintiffs' witness, and was included by the plaintiffs in their claims of proof in the finding. The jury could not, on the evidence, have determined otherwise than that the tenants took the premises as they found them as far as these defects were concerned. The claimed defects of lack of fire stops and the absence of an inner liner in the furnace perhaps require somewhat more discussion. The plaintiffs' evidence, from the chief of the Stratford fire department, was that there were no fire stops, and the jury could have accepted this evidence, even though the defendant offered evidence that there were fire stops. Although of course the presence or absence of fire stops would have nothing to do with the fact that the house caught fire from an overheated furnace, there was evidence from which the jury could find that had fire stops been present the fire would probably not have 'mushroomed' up through the walls as rapidly, and this in turn would have given more time for the decedents, at least, to escape or be rescued. Aside from the difficult problem of proof of proximate cause, the plaintiffs' burden was to prove, inter alia, that the absence of fire stops, if they were absent, would not be discoverable by the tenants on reasonable inspection. Whether fire stops were so located that they would not have been discoverable by the tenants on reasonable inspection does not appear from the printed evidence, nor was it a matter open to the common knowledge of a juror. Furthermore, the finding contains a claim of proof of the plaintiffs that fire stops were 'something easily seen and a reasonable view of a wall in a cellar would disclose their absence.' Under this claim of proof, the plaintiffs were certainly not entitled to recover on the ground of the absence of fire stops.

There was a conflict in the evidence as to whether the furnace had an inner liner at the time of the fire. Of course, if there was an inner liner in good order, that would end the matter. The plaintiffs' appendix indicates that their expert, Douglas, testified that the absence of an inner liner was discoverable on reasonable inspection, and as far as appears such inspection could have been made as well by the tenants as by the defendant. There was no evidence that the tenants would not, on reasonable inspection, have discovered the lack of an inner liner. This is especially...