Sargent v. Ross

Decision Date31 July 1973
Docket NumberNo. 6338,6338
Parties, 64 A.L.R.3d 329 Tina SARGENT, Administratrix of the Estate of Anna M. Sargent, v. Fabiola ROSS.
CourtNew Hampshire Supreme Court

Leonard & Harkaway and Leonard P. Shapiro, Nashua, for plaintiff.

Wiggin, Nourie, Sundeen, Pringree & Bigg and William S. Orcutt, Manchester, for defendant.

KENISON, Chief Justice.

The question in this case is whether the defendant landlord is liable to the plaintiff in tort for the death of plaintiff's four-year-old daughter who fell to her death from an outdoor stairway at a residential building owned by the defendant in Nashua. The defendant resided in a groundfloor apartment in the building, and her son and daughter-in-law occupied a second story apartment serviced by the stairway from which the child fe. At the time of the accident the child was under the care of the defendant's daughter-in-law who was plaintiff's regular baby-sitter.

Plaintiff brought suit against the daughter-in-law for negligent supervision and against the defendant for negligent construction and maintenance of the stairway which was added to the building by the defendant about eight years befoe the accident. about eight years before the accident. the fall except for evidence that the stairs were dangerously steep, and that the railing was insufficient to prevent the child from falling over the side. The jury returned a verdict for the daughter-in-law but found in favor of the plaintiff in her action against the defendant landlord. The defendant seasonably excepted to the denial of her motions for a nonsuit, directed verdict, judgment n.o.v., and to have the verdict set aside, and all questions of law were reserved and transferred to this court by Dunfey, J.

Claiming that there was no evidence that the defendant retained control over the stairway, that it was used in common with other tenants, or that it contained a concealed defect, defendant urges that there was accordingly no duty owing to the deceased child for the defendant to breach. This contention rests upon the general rule which has long obtained in this and most other jurisdictions that a landlord is not liable, except in certain limited situations, for injuries caused by defective or dangerous conditions in the leased premises. E.g., Black v. Fiandaca, 98 N.H. 33, 93 A.2d 663 (1953); Towne v. Thompson, 68 N.H. 317, 44 A. 492 (1895); 2 Powell, Real Property 234 (rev. ed. 1971); Prosser, Torts § 63 (4th ed. 1971); 1 Tiffany, Real Property §§ 104, 107 (3d ed. 1939). The plaintiff does not directly attack this rule of nonliability but instead attempts to show, rather futilely under the facts, defendant's control of the stairway. She also relies upon an exception to the general rule of nonliability, to wit, that a landlord is liable for injuries resulting from his negligent repair of the premises. Hunkins v. Amoskeag Mfg. Co., 86 N.H. 356, 169 A. 3 (1933); Rowan v. Amoskeag Mfg. Co., 79 N.H. 409, 109 A. 561 (1920); Prosser, supra at 410-12; 1 Tiffany, supra at § 105; Restatement (Second) of Torts § 362 (1965). The issue, as framed by the parties, is whether the rule of nonliability should prevail or whether the facts of this case can be squeezed into the negligent repair or some other exception to the general rule of landlord immunity.

General principles of tort law ordinarily impose liability upon persons for injuries caused by their failure to exercise reasonable care under all the circumstances. Fitzpatrick v. Public Serv. Co., 101 N.H. 35, 131 A.2d 634 (1957); Fissette v. Boston & Maine R.R., 98 N.H. 136, 96 A.2d 303 (1953); Restatement (Second) of Torts § 283 (1964). A person is generally negligent for exposing another to an unreasonable risk of harm which foreseeably results in an injury. Quint v. Porietis, 107 N.H. 463, 225 A.2d 179 (1966); State v. Dodge, 103 N.H. 131, 166 A.2d 467 (1960); Restatement (Second) of Torts § 282 (1965). But, except in certain instances, landlords are immune from these simple rules of reasonable conduct which govern other persons in their daily activities. This 'quasi-sovereignty of the landowner' (2 Harper and James, Law of Torts 1495 (1956)) finds its source in an agrarian England of the dark ages. Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971); Clarke v. O'Connor, 140 U.S.App.D.C. 300, 435 F.2d 104, 111 (1970); Harkrider, Tort Liability of a Landlord, 26 Mich.L.Rev. 260, 261 (1928). Due to the untoward favoritism of the law for landlords, it has been justly stated that 'the law in this area is a scandal.' Quinn and Phillips, The Law of Landlord-Tenant: A Critical Evaluation of the Past with Guidelines for the Future, 38 Ford.L.Rev. 225 (1969). 'For decades the court persistently refused to pierce the hardened wax that preserved the landlordtenant relationship in its agrarian state.' Note, 59 Geo.L.J. 1153, 1163 (1971). But courts and legislatures alike are beginning to reevaluate the rigid rules of landlordtenant law in light of current needs and principles of law from related areas. See Kline v. Burns supra; Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969); Kline v. 1500 Massachusetts Ave. Apt. Corp.,141 U.S.App.D.C. 370, 439 F.2d 477 (1970); 2 Powell, Real Property 220, at 174-75 (rev.ed.1971); 1970/71 Am. Survey of American Law 365; Note, 121 U.Pa.L.Rev. 378 (1972). 'Justifiable dissatisfaction with the rule' of landlord tort immunity (2 Harper and James, supra at 1510) compels its reevaluation in a case such as this where we are asked either to apply the rule, and hold the landlord harmless for a foreseeable death resulting from an act of negligence, or to broaden one of the existing exceptions and hence perpetuate an artificial and illogical rule. See Note, Lessor's Duty to Repair: Tort Liability to Persons Injured on the Premises, 62 Harv.L.Rev. 669 (1949).

One court recognized at an early date that ordinary principles of tort liability ought to apply to landlords as other persons. 'The ground of liability upon the part of a landlord when he demises dangerous property has nothing special to do with the relation of landlord and tenant. It is the ordinary case of liability for personal misfeasance, which runs through all the relations of individuals to each other.' Wilcox v. Hines, 100 Tenn. 538, 548-549, 46 S.W. 297, 299 (1898). Most courts, however, while recognizing from an early date that 'the law is unusually strict in exempting the landlord from liability' (Bowe v. Hunking, 135 Mass. 380, 386 (1883)), sought refuge from the rigors of the rule by straining other legal principles such as deceit (Cummings v. Prater, 95 Ariz. 20, 23 n.1, 386 P.2d 27, 29 n.1 (1963); Note, Landlord and Tenant: Defects Existing at the Time of the Lease, 35 Ind.L.J. 361 (1960)) and by carving out exceptions to the general rule of nonliability. 2 Harper and James, supra at 1510. Thus, a landlord is now generally conceded to be liable in tort for injuries resulting from defective and dangerous conditions in the premises if the injury is attributable to (1) a hidden danger in the premises of which the landlord but not the tenant is aware, (2) premises leased for public use, (3) premises retained under the landlord's control, such as common stairways, or (4) premises negligently repaired by the landlord. See generally 2 Powell, Real Property 234 (rev.Ed.1971); Prosser, Torts § 63 (4th ed. 1971); Restatement (Second) of Torts §§ 358-62 (1965).

As is to be expected where exceptions to a rule of law form the only basis of liability, the parties in this action concentrated at trial and on appeal on whether any of the exceptions applied, particularly whether the landlord or the tenant had control of the stairway. 1 Tiffany, Real Property § 109 (3d ed. 1939). The determination of the question of which party had a control of the defective part of the premises causing the injury has generally been considered dispositive of the landlord's liability. E.g., Black v. Fiandaca, 98 N.H. 33, 93 A.2d 663 (1953); Flanders v. New Hampshire Sav. Bank, 90 N.H. 285, 7 A.2d 233 (1939). This was a logical modification to the rule of nonliability since ordinarily a landlord can reasonably be expected to maintain the property and guard against injuries only in common areas and other areas under his control. A landlord, for example, cannot fairly be held responsible in most instances for an injury arising out of the tenant's negligent maintenance of the leased premises. Manning v. Leavitt Co., 90 N.H. 167, 5 A.2d 667 (1939). But the control test is insufficient since it substitutes a facile and conclusive test for a reasoned consideration of whether due care was exercised under all the circumstances. See Clarke v. O'Connor, 140 U.S.App.D.C. 300, 435 F.2d 104, 111-113 (1970).

There was evidence from which the jury could find that the landlord negligently designed or constructed a stairway which was dangerously steep or that she negligently failed to remedy or adequately warn the deceased of the danger. A proper rule of law would not preclude recovery in such a case by a person foreseeably injured by a dangerous hazard solely because the stairs serviced one apartment instead of two. but that would be the result if the control test were applied to this case, since this was not a 'common stairway' or otherwise under the landlord's control. See generally Annot., 26 A.L.R.2d 468 (1952). While we could strain this test to the limits and find control in the landlord (Gibson v. Hoppman, 108 Conn. 401, 143 A. 635 (1928)), as plaintiff suggests, we are not inclined to so expand the fiction since we agree that 'it is not part of the general law of negligence to exonerate a defendant simply because the condition attributable to his negligence has passed beyond his control before it causes injury . . ..' 2 Harper and James, Law of Torts § 27.16, at 1509 (1956); see id. at 207 (Supp. to vol. 2 1968).

The anomaly of the general rule of landlord tort immunity and the inflexibility of...

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