Parker v. Highland Park, Inc.

Decision Date08 February 1978
Docket NumberNo. B-6576,B-6576
Citation565 S.W.2d 512
PartiesRuth PARKER, Petitioner, v. HIGHLAND PARK, INC., Respondent.
CourtTexas Supreme Court

C. Coit Mock, Fort Worth, for petitioner.

McBryde, Bogle & Green, John H. McBryde, Fort Worth, for respondent.

POPE, Justice.

The question presented by this appeal is whether the no-duty doctrine is still a viable one in the trial of premises cases. This case deals with invitees and tenants and does not involve licensees or trespassers. Mrs. Ruth Parker was injured when she fell while descending a dark stairway located on the premises of Highland Park, Inc. She sued Highland Park and recovered a judgment on a jury verdict for $17,123.00. This case arose before the effective date of the comparative negligence statute. Art. 2212a. The trial court's judgment for Mrs. Parker was upon the jury findings that (1) the stairs were not properly lighted, (2) which caused the stairs to be unusually dangerous for use, (3) Highland Park was negligent in not causing the stairs to be properly lighted, (4) which was a proximate cause of Mrs. Parker's injuries. The jury refused to find (5) that Mrs. Parker was negligent in undertaking to descend the stairs, (6) or in the manner in which she descended the stairs, but (7) found that Mrs. Parker received a warning of the danger as she proceeded down the stairs. She had been visiting Judge and Mrs. Massey. Mrs. Massey had said to her, "Ruth, be careful." The court of court of civil appeals with a divided court reversed the judgment and rendered judgment for Highland Park. 545 S.W.2d 275. That court placed its decision squarely upon the holding that the defendant owed the plaintiff no duty since the darkness in the stairwell was open and obvious to Mrs. Parker, citing Robert E. McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Lowe Chemical Co. v. Greenwood, 433 S.W.2d 695 (Tex.1968), and Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Mrs. Parker went to the apartment of Judge and Mrs. Frank Massey during the afternoon of October 23, 1971. The Masseys had been renting their apartment from Highland Park for about two years. Mrs. Parker and Mrs. Massey are sisters. After dinner and at about eight fifteen in the evening, those three persons prepared to leave the second-floor apartment to drive Mrs. Parker to her home in another part of the city. Upon opening the door they saw that the foyer outside the Massey apartment and the stairway were in total darkness. While Mrs. Parker waited, Judge Massey descended the steps by holding to the rail and feeling his way down. He expected to open the outside door at the foot of the steps and admit some light. Since it was so dark outside, this did not solve the problem. Mrs. Massey went back into her apartment to obtain a flashlight.

Mrs. Parker and Mrs. Massey then proceeded cautiously to descend the steps. The steps were so narrow that it was easier for persons to go in single file. Mrs. Massey followed Mrs. Parker so she could direct the light on the steps in front of Mrs. Parker who was about three steps in front. She was holding the light low so Mrs. Parker could see the steps. Mrs. Parker held onto the rail on the right side of the steps. After descending six steps Mrs. Parker reached a flat landing at which point the stairs made a right angle turn to the right. There was a step from that landing to a second flat landing and then six more steps to the ground floor. When Mrs. Parker made the turn at the first landing, she did not remember that there was a step which separated the first and second landings. See Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941). Mrs. Parker said that she had been on the stairs to visit her sister every six weeks to two months and a few times at night, but the stairway was always lighted before. She moved from the first landing and while still holding to the rail, she stepped off the first landing. She testified that she swung around to the right, and she tried to grab the rail with her left hand. She testified that the light from the flashlight was obscured by the right turn and the posts on the stairway.

The Massey apartment shared the common foyer and stairs with another apartment. The foyer and stairs were inside the building but outside the apartments. The Masseys controlled the lights inside their apartment, but Highland Park, Inc. exercised complete control over the area and the lights outside the apartment. The entire apartment complex consisted of 204 apartments and the lights for the halls and stairs were set to come on and go off at predetermined times. An employee of Highland Park, Inc. was responsible for setting the automatic timing device. It had to be reset periodically as the days grew shorter, and by October 23 there was a total darkness by 8:15 P.M., when the accident occurred.

Highland Park says that it is entitled to a favorable judgment because the trial court, over its objection, failed to submit as a part of the plaintiff's issues, a special issue which inquired whether the defendant either created or maintained the dangerous condition, or whether the defendant knew or should have known of the condition. The evidence that Highland Park created the darkened and dangerous condition on the steps is undisputed. By answers to admissions, Highland Park stated that on the second floor there was a light fixture inside the front stairwell and another at the back of the stairwell. There were two similar fixtures on the first floor. There were also lights just outside and inside the back door. All six of those lights were out when the accident occurred. Highland Park admitted that those lights were controlled by a mechanism recessed in the wall inside the back door on the first floor. It admitted that it was "probably one of its employees who was responsible for setting the automatic timer," and "the present information of the defendant is that Jerry Wilson probably had that duty." It said that it did not know who made the last setting or when it was made. It offered no contrary evidence to dispute or explain its answers. There is no evidence that anyone other than defendant had the right to change or ever had changed the timer. The lights came on automatically after the accident but before Mrs. Parker left in the ambulance, so it was not an instance of six defective bulbs being out at the same time. The undisputed proof is that defendant set the automatic timer so the lights would come on after total darkness.

The duty that the landlord owed to the Masseys as tenants extended to their guest, Mrs. Parker, under the standard stated in Sections 360 and 361 of the Restatement (Second) of Torts :

§ 360. Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use

A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

Comment:

a. Effect of lessee's knowledge of dangerous condition. The rule stated in this Section applies to subject the lessor to liability to third persons entering the land, irrespective of whether the lessee knows or does not know of the dangerous condition. The lessee may, for example, know that the common entrance to the apartment or office which he has leased has become dangerous for use because of the lessor's failure to maintain it in safe condition. His knowledge may subject him to liability even to his own licensees, if he fails to warn them of the danger. It will not, however, relieve the lessor of liability for his negligence in permitting the entrance to become dangerous. (Emphasis added.)

c. A lessor may be liable to an invitee or even to a licensee of the lessee, although neither he nor the lessee would be liable under the same circumstances to their own invitees or licensees. The privilege of the visitor is not based, as is that of the lessor's own invitee or licensee, upon the consent given upon the occasion of the particular visit, but upon the fact that he is entitled to enter by the right of the lessee, who is entitled under his lease to use the part of the land within the control of the lessor not only for himself, but also for the purpose of receiving any persons whom he chooses to admit. This fact is to be taken into account in determining whether the lessor should anticipate harm to the visitor. It follows that the lessor's duty is not always satisfied by warning the lessee or others of the dangerous condition, and that the knowledge of such persons of the danger will not always prevent their recovery. Where, for example, the entrance to an apartment house is dangerously defective, and there is no other available entrance, the third person may be expected to use it notwithstanding any warning, or even his own knowledge of the danger. Unless he is to be charged with contributory negligence, he may recover notwithstanding such warning, or even knowledge.

§ 361. Parts of Land Retained in Lessor's Control but Necessary to Safe Use of Part Leased

A possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous...

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