Niman v. Plaza House, Inc.

• Decision Date: 13 September 1971
• Docket Number: No. 54534,54534
• Citation: 471 S.W.2d 207
• Parties: Louis NIMAN and Esther Niman, Respondents, v. PLAZA HOUSE, INC., a Corporation, and William C. Haas, d/b/a William C. Haas& Associates, Appellants.
• Court: Missouri Supreme Court

Page 207

471 S.W.2d 207

Louis NIMAN and Esther Niman, Respondents, v. PLAZA HOUSE, INC., a Corporation, and William C. Haas, d/b/a

William C. Haas& Associates, Appellants.

No. 54534.

Supreme Court of Missouri, En Banc.

Sept. 13, 1971.

Rehearing Denied Oct. 11, 1971.

Joseph S. Levy, Paul Margolis, Jr., Frank B. Reiser, Levy & Craig, Kansas City, for respondents.

C. Thomas Carr, Sheridan, Sanders, Peters, Carr & Sharp, Kansas City, for appellants.

MORGAN, Judge.

This is an action, brought under the res ipsa loquitur doctrine, for damages for personal injuries, loss of services, medical expenses and property damage. Plaintiffs received a verdict in a total amount of $25,800. Defendant have appealed. We affirm.

A divisional opinion failed of adoption after transfer to the Court en Banc, as did another opinion prepared after reargument and reassignment. This opinion is written following a second reassignment.

Factually, it appears that plaintiffs were tenants of a fifth floor apartment in an eleven-story apartment building owned by defendant Plaza House and managed by defendant Haas. On the night of December 16, 1964, plaintiffs retired. The next morning, Louis Niman awoke, got out of bed, and was shaving in the bathroom with the door closed. When Esther Niman awoke, she felt an intense heat and found the bedroom full of steam. She attempted to get out of bed, and when her feet touched the floor, it was so filled with hot water and slime that she fell on her buttocks. She suffered immediate pain and severe injuries, and the furnishings in the apartment were generally ruined.

It is agreed that the Plaza House had a hot-water heating system; that boilers in the basement heated the water; that it circulated through pipes into and out of the various apartments with the assistance of pumps, which pulled the water through the system and discharged it back into the boiler for reheating; that the radiator in plaintiffs' bedroom ran along the west side of the room under the windows; that the water circulated lengthwise through a pipe in the radiator to the southwest corner of the room, looped through a shut-off valve and two 90 ell fittings, and then ran lengthwise through a second pipe back across the west wall to the return line; that the hot water in the apartment had escaped through a ruptured portion of one of the fittings.

The radiator and the pipes connected to it were hidden by a metal cover. The only protrusion therefrom was a 'knob' or 'handle' which was attached to the control valve for the purpose of regulating the extent of water flow through the radiator, which, in turn, allowed for control of the room temperature. When the building was originally constructed, each radiator had what was referred to as a butterfly valve. Such a valve had only a 90 opening and permitted only a quarter turn from off to fully on. After many complaints from tenants, including plaintiffs, that it was not possible to modulate the heat with such a limited turn, new valves were installed that allowed for a plus 360 turn. With the never valve, a tenant supposedly could make a more selective choice of the amount of heat desired.

As noted, plaintiffs submitted and recovered under the doctrine of res ipsa loquitur. Defendants now contend: (1) that plaintiffs were not entitled to relief on the res ipsa loquitur theory for the reason 'they did not prove that the radiator involved was under the exclusive management and control of defendants,' and (2) that instruction number 2 was not a properly modified MAI verdict-directing res ipsa loquitur instruction, because it injected for the jury's consideration elements not permitted by MAI, namely, that 'the defendants possessed superior knowledge or means of information as to the cause of the occurrence and such occurrence is one that does not ordinarily happen when those in charge use due care.'

As to point one, it is fair to observe that the parties are in accord as to the legal principles upon which the res ipsa doctrine is based, but disagree as to whether or not the factual situation shown falls within the limitations of the doctrine itself. Nevertheless, for simplicity of reference we mention those accepted precedents which provide guidance for resolving the two issues submitted.

In McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, this court said: 'In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.' Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. In McCloskey, loc. cit. 46 S.W.2d 560(2), it was further said: '* * * the requirement that the instrumentality be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed.' Further clarification is found in Parlow v. Dan Hamm Drayage Co., Mo., 391 S.W.2d 315, 323, wherein it was stated that, 'The divided control which precludes application against the defendant of res ipsa must be related to the cause of the casualty.' Cantley v Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W.2d 123, Littlefield v. Laughlin, Mo., 327 S.W.2d 863. Notwithstanding the fact that such guidelines have been so clearly stated, and oft repeated, the continuing difficulty of applying the same to a particular factual situation has caused the comment that: 'It would be far better, and much confusion would be avoided, if the idea of control were discarded altogether, and we were to say merely that the apparent cause of the accident must be such that the defendant would be responsible for any negligence connected with it.' Law of Torts, Prosser, Hornbook Series, 3rd Ed., page 225.

Did defendants have such control of the radiator as to make a res ipsa submission proper? It is agreed by all that the defendants were to provide heat for the apartment; and that they owned and maintained all portions of the heating mechanism, including the radiator in question. When defendant Haas was asked who had charge of the operation of the heating system, his answer was 'I did.' It was also conceded that tenants were to regulate the temperature in each of their particular apartments by turning the control knob and that no instructions or warnings were given that the radiator valve should not be completely closed. That a showing of the plaintiffs' possession of the apartment does not necessarily establish that they had 'control' of all appliances therein is well established. As said in Gladden v. Walker & Dunlop, Inc., 83 U.S.App.D.C. 224, 168 F.2d 321, 322: 'It is familiar law that a landlord who keeps control over parts of an apartment house must use reasonable care for safety. We have applied this principle to the lighting of a common entrance stairway. With regard to plumbing and heating systems, the principle extends to operative fixtures in the apartments leased to tenants and operation through them. We think the principle is equally broad with regard to the electrical system. Plumbing, heating, and electrical fixtures are not isolated either in use or maintenance. They must be maintained and used, if at all, in conjunction with the systems of which they are parts. Accordingly the tenant who uses them is usually not expected to maintain them, but only to notify the landlord when they appear to be out of order. * * * We think it immaterial whether the injury to appellant appears to have been caused by defects in operative fixtures or in other parts of the electric system. The law should follow custom and convenience in classifying such fixtures among the things that the landlord controls.'

The Gladden case has been cited with approval by the courts of this state, Thompson v. Paseo Manor South, Inc., Mo.App., 331 S.W.2d 1, 5, Green v. Kahn, Mo., 391 S.W.2d 269, 274, and Minton v. Hardinger, Mo., 438 S.W.2d 3, 7; and in each case, it was recognized that appliances or operative fixtures provided by the lessor, although located within the demised premises, may have remained under the legal control of the lessor. In Thompson, 331 S.W.2d, loc. cit. 4, it was said, '* * * we are of the opinion that the weight of authority is that the landlord had and retained control of the entire heating system, including the pipes in each apartment.' In Green, 391 S.W.2d, loc. cit. 275, this court concluded: 'It seems clear to us that the evidence was substantial in tending to show that the main and lateral gas-service piping extending from defendants front building back to and into the three-apartment building with attached operative units or appliances, gas cooking stoves, for cooking and heating, constituted an integrated system for use by the tenants of the three-apartment building as a group and of which system defendants had reserved and retained control.' Again, in the recent case (1968) of Minton v. Hardinger, 438 S.W.2d, loc. cit. 7, this court held: 'The Mintons actually had possession of nothing more than the rooms of their apartment and the use of the appliances, with the landlord controlling everything else. Here, as in Green v. Kahn (Mo.Sup.), 391 S.W.2d 269, the Mintons had the use, but not the control, of the bathroom gas heater and its connections.' (Emphasis added.)

Basically, the same situation exists in the present case reference management and control of the heating pipe lines and radiators. The defendants owned, managed, controlled and operated the boiler system which heated the water that was circulated through the pipe lines and radiators of the apartment house. It is readily apparent that plaintiffs would have no control or even interest in such aspects of the heating system....