Rosenberg v. Chapman Nat. Bank

• Decision Date: 25 October 1927
• Citation: 139 A. 82
• Parties: ROSENBERG v. CHAPMAN NAT. BANK et al. (two cases).
• Court: Maine Supreme Court

139 A. 82

ROSENBERG

v. CHAPMAN NAT. BANK et al. (two cases).

Supreme Judicial Court of Maine.

Oct. 25, 1927.

Report from Supreme Judicial Court, Cumberland County, at Law.

Separate actions by Dora Rosenberg and by Nathan Rosenberg against the Chapman National Bank and others. On report. Judgment for defendants.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and PATTANGALL, JJ.

Joseph E. F. Connolly, of Portland, for plaintiffs.

Robinson & Richardson and Carl W. Smith, all of Portland, for defendants.

DEASY, J. These are actions to recover damages for injuries proved to have been suffered by the wife of a tenant, and alleged to have been caused by a landlord's negligence.

The plaintiffs Mr. and Mrs. Rosenberg occupied, under leasehold from the defendants, one of the second floor tenements in a house on Congress street, Portland. No description of the house is necessary to an understanding of the case except the following:

"It is a three-story house. Each Story has a back piazza. The roof of the upper piazza which is superimposed upon the others is not and so far as appears has never been provided with a gutter. From the lowest piazza a short stairway leads downward to the back yard."

The defendants Mr. and Mrs. Gitlin had held a mortgage upon the premises and had assigned it to the defendant bank as security for a loan. At the request of Mr. Gitlin, the bank began foreclosure and took possession of the mortgaged premises, leaving Mr. Gitlin in charge to care for the house and collect rents. The latter employed one of the tenants as janitor.

Thus stood the title and possession when Mrs. Rosenberg suffered the accident on account of which this suit is brought.

On March 9, 1926, while the stairs and stair rail were coated with ice, the plaintiff Mrs. Rosenberg, her feet clad in slippers, a pail of garbage in one hand and the other grasping the stair rail, started to go down the steps to empty garbage into a large can in the back yard. She slipped and fell. Thus the accident occurred, and her undoubtedly grievous injuries were sustained. The accident happened during daylight hours.

The problem presented concerns the duty of a landlord with reference to a way (in this case a stairway) leading across premises of the landlord to his tenement, over which way he has given to several tenants common rights of passage and use.

A landlord, as such, is subject to no obligation to his tenants to remove or otherwise dispose of snow and ice which naturally accumulates upon such stairway. Woods v. Cotton Co., 134 Mass. 359. 45 Am. Rep. 344; Watkins v. Goodall, 138 Mass. 536; Hawkes v. Shoe Co., 207 Mass. 117, 92 N. E. 1017; O'Donoughue v. Moors, 208 Mass. 473, 94 N. E. 749; Bell v. Siegel, 242 Mass. 381, 136 N. E. 109, 25 A. L. R. 1261.

It goes without saying that he may by contract assume such obligation.

If a landlord knows or should know of a concealed defect in such a stairway, which menaces its safety, it is his legal duty to make it known to his tenant. Shackford v. Coffin, 95 Me. 71, 49 A. 57; Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122; 16 R. C. L. 1042.

The further duty which devolves upon a landlord of exercising due and reasonable care does not require him to make such stairways safe, but to keep them in a condition as safe structurally as they are in or appear to be in at the beginning of the tenancy. Sawyer v. McGillicuddy, 81 Me. 324, 17 A. 124, 3 L. R. A. 458, 10 Am. St. Rep. 260; Miller v. Hooper, 119 Me. 528, 112 A. 256; Watkins v. Goodall, supra; Andrews v. Williamson, 193 Mass. 92, 78 N. E. 737, 118 Am. St. Rep. 452; Hannaford v. Kinne, 199 Mass. 64, 85 N. E. 187; Faxon v. Butler, 206 Mass. 500, 92 N. E. 707, 138 Am. St. Rep. 405, 19 Ann. Cas. 666; 16 R. C. L. 1040.

If by reason of a defect concealed from the tenant, but known or that should be known to the landlord, or if by reason of the landlord's failure to perform his duty as defined in the last preceding paragraph, ice forms upon such passageway and is the proximate cause of injury to a tenant or any member of his family, being in the exercise of due care, the landlord will be held liable.

Turning now from general principles to the case under consideration.

We have seen that no liability on the part of the landlord, as such, arose through the presence of ice upon the stairway. In the absence of special contracts, liability can be established only by evidence that ice was the proximate cause of the injury, and that it formed or remained upon the steps and rail through the landlord's fault or breach of duty.

The plaintiffs undertake to supply such evidence by proof that there was no gutter to divert from the stairway, water falling upon the piazza roof. In the declaration the plaintiffs say and several times reiterate that "the roof over the piazza was not provided with a gutter or other contrivance to carry away water." Failure to provide such gutter is the negligence upon which the plaintiffs mainly rely.

But this defect, if it be a defect, was not concealed. It was perfectly apparent. The plaintiffs and their witnesses emphasize its obviousness. They say and reiterate that the absence of a gutter advertised itself by icicles which overhung the stairs. Again, if the piazza roof had once been provided with "a gutter or other contrivance," which had during the tenancy been removed, or had decayed, or broken down so as to fail in the performance of its functions, the case might be brought within the rule above stated. But the condition of the piazza roof, including the absence of a gutter, was the same at the date of the accident as at the beginning of the tenancy.

No breach of legal duty devolving upon them as landlords is shown making these defendants liable in this action.

But the plaintiffs say that by express or implied contract the defendants undertook to keep the steps free from slippery ice.

The evidence of an express contract is the testimony of Mrs. Rosenberg, corroborated, in part, by her daughter. Mrs." Rosenberg relates a conversation with the defendant Gitlin. This testimony is not convincing. She says that Gitlin promised "to clean the steps and yard." Assuming that he used this language, it is highly improbable that either party contemplated the removal of ice from the yard. But the same promise was made as to both yard and stairs, so says Mrs. Rosenberg. She also says, "The same thing that Brass (a former landlord) was giving, he (Gitlin) was to give me." But we find no evidence that Brass ever removed or did anything about ice. Gitlin denies that he made such a promise. The plaintiffs' counsel in his brief, summarizing the testimony, says that the ice had been upon the steps "many weeks" before the accident. This is undoubtedly true. But it does not appear that either of the plaintiffs complained to Gitlin or even asked the janitor, who lived in the same building, to remove ice or put ashes upon...