Nenninger v. Trustees of Oran Life Tabernacle Church, 16355

• Citation: 789 S.W.2d 530
• Decision Date: 17 May 1990
• Docket Number: No. 16355,16355
• Parties: Virginia NENNINGER, Appellant, v. TRUSTEES OF the ORAN LIFE TABERNACLE CHURCH, Respondents.
• Court: Court of Appeal of Missouri (US)

Page 530

789 S.W.2d 530

Virginia NENNINGER, Appellant, v. TRUSTEES OF the ORAN LIFE TABERNACLE CHURCH, Respondents.

No. 16355.

Missouri Court of Appeals,

Southern District,

Division One.

May 17, 1990.

Joseph P. Fuchs, Sikeston, for appellant.

Jeffrey S. Maguire, Thomasson, Dickerson, Gilbert & Cook, Cape Girardeau, for respondents.

CROW, Presiding Judge.

On July 12, 1988, Virginia Nenninger ("plaintiff") and her husband were tenants of an apartment in a duplex owned by the Trustees of the Oran Life Tabernacle Church ("defendants"). Plaintiff exited through the apartment's doorway, fell while descending the two outside steps to the ground, and sustained an injury, described infra.

Plaintiff sued defendants. Trial by jury produced a $67,000 verdict for plaintiff. The trial court subsequently granted defendants' motion for judgment notwithstanding the verdict and entered judgment for defendants on the ground that plaintiff failed to make a submissible case. Plaintiff appeals.

In determining whether the trial court was correct in entering judgment for defendants notwithstanding the verdict, we view the evidence in the light most favorable to plaintiff and give her the benefit of all reasonable inferences to be drawn therefrom. Stark v. American Bakeries Co., 647 S.W.2d 119, 121 (Mo. banc 1983). Judgment for defendants is sustainable only if the evidence, so viewed, failed to make a submissible case for plaintiff. Rhyne v. Thompson, 284 S.W.2d 553, 556 (Mo.1955); McCulley v. State Farm Mutual Automobile Insurance Co., 668 S.W.2d 121, 122 (Mo.App.1984); Dockery v. Mannisi, 636 S.W.2d 372, 376 (Mo.App.1982).

The accident occurred on a rainy afternoon. The doorway through which plaintiff stepped was her apartment's only means of ingress and egress. The outside steps did not serve the other apartment; it had its own separate entrance.

The steps were constructed of unpainted "one-inch thick rough-cut maple." Each was 39 1/2 inches wide. One of the risers (apparently the one for the top step ¹) measured 8 1/2 inches; the other riser measured 6 1/2 inches. One of the steps (apparently the bottom one ²) was 19 1/2 inches deep; the other was 18 1/2 inches deep. There was no handrail on either side.

There were two doors in the doorway. The outermost door was a "storm door" installed by plaintiff's husband. To a person exiting the apartment the storm door was hinged on the righthand side of the doorway.

Plaintiff, who had lived in the apartment since the summer of 1986, gave this account of the accident:

"As I was going out the door, I opened up the door, I stepped down. I slid on the step. I grabbed for a rail. There was nothing to grab to, so I grabbed with this hand and my ring got caught on the screen door handle, and as I fell out onto the ground, it just pulled my finger, not completely off, from here up.

Q As you went out the door, Virginia, which foot did you step down with?

A My left foot.

Q Where did you finally land?

A On the ground."

The finger referred to in plaintiff's testimony was the fourth (ring) finger of her right hand. The finger was torn off. Plaintiff is right-handed.

The last work done on the steps prior to plaintiff's accident was around 1981 when some of the boards were replaced.

The general rule is that the landlord is not liable to the tenant for injuries caused by a dangerous condition, whether natural or artificial, which existed at the time the tenant took possession under the lease. Reckert v. Roco Petroleum Corp., 411 S.W.2d 199, 205 (Mo.1966). This general rule is subject to an exception where at the time the lease is executed there is a dangerous condition of the premises involving unreasonable risk of physical harm to persons on the premises, which is known to the landlord and unknown to the tenant and not discoverable by the tenant in the exercise of ordinary care. Id. In such case there is a duty on the landlord to disclose to the tenant the existence of the dangerous condition and the landlord is liable to the tenant for injuries resulting from such condition if the landlord fails to disclose it to the tenant or conceals its presence from the tenant. Id. See also: Knox v. Sands, 421 S.W.2d 497, 500-01 (Mo.1967).

Plaintiff did not contend in the trial court, nor does she here, that the alleged dangerous condition of the steps was unknown to her and was not discoverable by her in the exercise of ordinary care. Instead, plaintiff seeks to recover under the rule that a landlord is under a duty to exercise ordinary care to keep the portions of the premises which he retains in his control in a reasonably safe condition for the use intended and is liable for damages for personal injuries resulting from his failure to perform that duty. Lemm v. Gould, 425 S.W.2d 190, 194 (Mo.1968); Peterson v. Brune, 273 S.W.2d 278, 280 (Mo.1954).

Plaintiff's theory that defendants had retained possession and control over the steps was submitted to the jury by instruction 5, which read:

"Your verdict must be for plaintiff if you believe:

First, there was no handrail and as a result the stairway was not reasonably safe, and

Second, the stairway was in the possession and control of defendant and was used by tenants of defendant with its consent, and

Third, defendant knew, or by using ordinary care could have known, of this condition, and

Fourth, defendant failed to use ordinary care to make the stairway reasonably safe, and

Fifth, as a direct result of such failure, plaintiff was injured."

Instruction 5 was evidently based on MAI 22.05 [1981 Revision].

The possession or control that must be shown in order to make a landlord liable under the rule in Lemm and Peterson is not to be found merely in the obligation of the landlord to make repairs or the right to enter the premises. Lemm, 425 S.W.2d at 195. There must be something more, some additional fact or facts from which a jury can infer that under the agreement the tenant gave up and surrendered his right to exclusive possession and control and yielded to the landlord some degree or measure of control and dominion over the premises, some substantial evidence of a sharing of control as between landlord and tenant. Id. To be bound to keep the premises in a reasonably safe condition the landlord need not have reserved such a degree of control as to be entitled to admit or exclude others from the premises; it is sufficient that he retained a general supervision over the premises for a limited purpose such as the making of repairs or alterations, and the right to enter the premises and make repairs upon his own initiative and responsibility. Id. at 195.

One method to prove retention of control is to show that the portion of the premises involved was so constructed as to be used by, or subject to be used by, the landlord and another tenant or by two or more tenants. Peterson, 273 S.W.2d at 281. The ultimate question is whether the landlord did retain control of the particular portion of the premises under consideration. Id. This is because the foundation of the landlord's duty is based upon his retention of control. Id.

In the instant case it was undisputed that the steps on which plaintiff fell were not used by the tenants of the other apartment in the duplex; that apartment had its own entrance. The steps provided access to only plaintiff's apartment. Plaintiff insists, however, that the evidence was sufficient to raise a submissible issue as to whether defendants retained sufficient control over the steps to obligate defendants to maintain the steps in a reasonably safe condition. Plaintiff relies on the following evidence.

The building in which plaintiff's apartment was located was originally used as a church. In 1981 it was converted to a duplex "by various men of the church." Jimmy D. Mahurin, pastor of the church, answered certain interrogatories propounded by plaintiff to defendants. One interrogatory asked defendants to indicate "who was responsible for the maintenance of the premises at the time plaintiff fell." Mahurin answered, "The men of the church."

Plaintiff testified her "rental arrangement" with defendants was "[j]ust pay rent once a month." Plaintiff's testimony continued:

"Q What other obligations did you have regarding the property?

A None.

Q Who was responsible for maintaining and repairing the property?

A The church.

Q When something needed fixing, who did you contact, Virginia?

A Sometimes Ms. Abner, she went to the church, but someone from the church, Mr. Mahurin.

Q When you would do that, would someone from the church come out and attempt to repair whatever it was that needed repairing?

A Yes, sir.

Q Under your rental arrangement with the church, were you to repair or keep up anything?

A No, sir."

Plaintiff recounted that during her occupancy the hot water heater, the cookstove, and the furnace had needed repairing. She reported the problems to Mahurin. The three items were fixed. Plaintiff also reported to Mahurin that the carpets were "molding"; however, they were never replaced so she and her husband cleaned them. As noted earlier, plaintiff's husband replaced the storm door. Plaintiff and her husband had no place to park their car. Mahurin had some gravel delivered, which was dumped close to the steps. Plaintiff and her husband spread the gravel. Mahurin painted the exterior of plaintiff's apartment "around the fall of 1987" and trimmed the trees.

Plaintiff's husband testified he talked with Mahurin about painting the interior of the apartment. Plaintiff's husband quoted Mahurin as saying he "didn't really have time to do it." Plaintiff subsequently obtained permission for her and her husband to paint the interior and they did.

According to plaintiff's husband, Mahurin said in the fall of 1987 that he "was going to try to replace the steps."

Mahurin denied any conversation regarding the steps. Mahurin's cross-examination by plaintiff's lawyer did, however, produce this:

"Q During the...