Panaroni v. Johnson

• Decision Date: 01 April 1969
• Citation: 256 A.2d 246,158 Conn. 92
• Court: Connecticut Supreme Court
• Parties: Catherine PANARONI v. A. Allen JOHNSON et al.

Page 246

256 A.2d 246

158 Conn. 92

Catherine PANARONI v. A. Allen JOHNSON et al.

Supreme Court of Connecticut.

April 1, 1969.

James O. Shea, New Haven, for appellants (defendants).

Charles G. Albom, New Haven, and Albert R. Annunziata, Orange, with whom, on the brief, was Donald G. Walsh, New Haven, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

COTTER, Associate Justice.

The plaintiff brought this action to recover damages for personal injuries sustained in a fall down an unenclosed outside stairway which the plaintiff, a tenant, alleged had been retained in control of the defendants, her landlords. The jury returned a verdict of $65,000, and the defendants have appealed from the denial of their motion to set aside the verdict and from the judgment.

Essentially, the defendants claim that the stairway leading solely to the tenement of the plaintiff was wholly demised under the written lease and therefore was under her control so that liability under the circumstances was not a question of fact for the jury; that the court erred in ruling that a clause in the written lease exculpating the landlord from liability to the tenant for injuries due to disrepair or defective conditions on the premises was void as against public policy; that the tenant's knowledge of the defect barred her recovery; that evidence of oral conversations at or about the time of the leasing to vary the language of the lease was inadmissible; that instructions to the jury concerning the plaintiff's earning capacity of $100 per week were erroneous; and that a refusal to grant the defendants a directed verdict constituted error.

From the evidence most favorable to the plaintiff, the jury could have found the following facts: The defendants, a family partnership known as Johnson Realty Company, owned premises known as 507 Orchard Street in New Haven, consisting of two stores and two dwelling units. On May 29, 1961, they leased to the plaintiff the first-floor apartment at that address for a two-year term, at the rate of $65 a month. The written lease was extended during the lease term to run for an additional year after June 1, 1963. Egress from and ingress to the rear of the premises were by means of the landing and unenclosed outside wooden stairway. The landing was adjacent to the rear door of the tenement house. No other tenant had occasion to use this stairway since another one in the rear led to the second-floor apartment. The Johnson Realty Company owned other buildings adjoining the leased premises and had, next to the building at 507 Orchard Street, a shop for the purpose of making repairs to and for maintenance of the apartments. In addition, the defendants had an office nearby at 517 Orchard Street, from which they conducted their realty business and where they kept, on a board, keys to all the apartments, including the plaintiff's apartment, in order to gain access and make repairs in the apartments. It was the custom of the defendants' employees, when a tenant needed repairs, for the foreman to get the key from the office board and go to the apartment to make repairs. On occasion, the defendants, without prearrangement with the plaintiff, used one of the keys to gain entrance to her apartment.

Under the terms of both the lease and the extension of lease, the lessor and the lessor's agents or contractors were allowed 'to enter the demised premises for inspection and/or due to an emergency and/or any alteration of the building where it is necessary to enter or work in Lessee's demised premises.' In accordance with this provision in the lease, the defendant A. Allen Johnson considered it his function to keep everything in repair and to take care of repairs to the outside stairs and of all other repairs and maintenance. In fulfilling this function, he made repairs to 507 Orchard Street during 1963. He also inspected the leased property between fifteen and eighteen times a year for the purpose of correction or improvement or alteration, as well as ordering repairs when in his opinion any property was found in need of them.

At some time after the plaintiff entered on the premises but before her fall, she asked either the defendant Leonard Johnson or the defendant A. Allen Johnson and Thomas Connelly, an employee of the Johnson Realty Company who was hired to make repairs in and about the defendants' property during the lease term, to fix the back porch and stairs. Also, four to six weeks before October 13, 1963, A. Allen Johnson inspected the stairway leading from the plaintiff's apartment to the rear yard by jumping up and down on the bottom step, by shaking the bannister, and by visually observing the other steps. At this inspection he noticed that the wood of the old step was bad in part.

Subsequently, on October 13, 1963, at about 5 o'clock in the morning, while the plaintiff was descending the rear stairs, the third step from the bottom broke and gave way, and she was thrown to the ground. The wood of the step was soft and decayed. All parts of the stairs of which the third step was a part were worn and weather-beaten over a period of years and had not been painted since 1954. These stairs were improperly braced because the wood brace was on the ground and rotted. The plaintiff notified the defendants on the same day of her fall.

In the past, the defendants had repaired or fixed the stairs before the date of the plaintiff's fall, while the tenants had not. After the step broke, causing the plaintiff's fall, the defendant A. Allen Johnson viewed the stairs and said: 'Let's start and straighten out these stairs.' The defendants then tore down or demolished the old steps and replaced them with new ones. The defendants also replaced and repaired other outside stairs to the rear of 507 Orchard Street.

I

At common law as a general rule, the landlord is under no implied obligation or liability to the tenant for personal injuries due to the defective condition of the demised premises or the lack of repair of defects therein where the landlord has not made any warranty or contract relative to the condition of the demised premises or the repair of defects. Pignatario v. Meyers, 100 Conn. 234, 237, 123 A. 263; 32 Am.Jur. 526, Landlord and Tenant, § 662; 52 C.J.S. Landlord and Tenant § 417(3). The general rule and its certain or apparent exceptions are carefully analyzed in Masterson v. Atherton, 149 Conn. 302, 179 A.2d 592, including, at page 309, the theory upon which the present plaintiff sought recovery, namely, that the landlord had control of the stairway.

The word 'control' has no legal or technical meaning distinct from that given in its popular acceptation; Robinson v. Kistler, 62 W.Va. 489, 495, 59 S.E. 505; and refers to the power or authority to manage, superintend, direct or oversee. Hardware Mutual Casualty Co. v. Crafton, 233 Ark. 1020, 350 S.W.2d 506, 507; see Bates v. Connecticut Power Co., 130 Conn. 256, 261, 33 A.2d 342; 9A Words & Phrases 5, 7, 31 (Perm.Ed.). Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue. Miller v. Mutual Mortgage Co., 112 Conn. 303, 305, 152 A. 154. Responsibility for the proper care over portions of the premises within the leased area may rest with the lessor if, with the acquiescence of the lessee, he retains control, and an agreement between the parties as to the landlord's right to inspect the premises together with his exclusive right to make repairs therein and the tenant's total abstention from making any repairs would be the equivalent of retention of control of the leased premises. Smith v. Housing Authority, 144 Conn. 13, 16, 17, 127 A.2d 45.

The written lease read as a whole cannot be said to definitely or expressly resolve the issue of control. Thus the actual use of the stairway, the circumstances attending its use, and the evidence as to repairs become relevant to the issue of actual control. Martel v. Malone, 138 Conn. 385, 391, 85 A.2d 246.

The making of repairs by the landlord, in and of itself, may denote a retention of control or may be an indicia of limited, temporary or full control. For the court to determine whether a conclusion of retained control is warranted, consideration must be given to the extent and instances under which the landlord undertook to make or in fact did make repairs to the stairway. The conduct, acts and words of the parties, in cases where the written lease is unclear or doubtful, constitute evidence of the intention of the parties that the lease should be construed in accordance with their own practical construction. Volk v. Volk Mfg. Co., 101 Conn. 594, 601, 126 A. 847; 4 Williston, Contracts (3d Ed.) § 623.

In addition to the evidence offered by the plaintiff, already reviewed above, the unattacked findings show that the named defendant during the tenancy, according to his custom, would inspect any part of the premises in question and that, if he thought in needed repairing, he would in fact go ahead and repair it. That he had the right to enter the apartments to inspect is clear from the lease. ¹ There is also an unattacked finding as to the plaintiff's proof that 'it was up to (the) defendants to keep everything in repair including outside stairways, floors, plumbing, painting and the sidewalk.' The fair import of this finding is that the plaintiff offered evidence to prove that it was the defendants' duty to make repairs to the stairways of the building. When this finding is considered in connection with paragraph 10 of the lease forbidding the insertion by the tenant of nails in parts of the building, it is not unreasonable, in view of all the evidence offered, that the trial...