Schedler v. Wagner
| Decision Date | 14 December 1950 |
| Docket Number | 31449. |
| Citation | 225 P.2d 213,37 Wn.2d 612 |
| Court | Washington Supreme Court |
| Parties | SCHEDLER et ux. v. WAGNER et ux. |
Department 1.
Rehearing Granted February 9, 1951. Edge, Davenport & Edge, John Dean and Grant L. Kimer, Spokane, for appellants.
Joseph Nappi, Spokane, Lloyd A. Eyrich, Newport, for respondents.
This is an appeal from a judgment entered upon a verdict of a jury, in favor of respondents, for damages as the result of injuries sustained by respondent Betty Jean Schedler when she slipped and fell on an icy sidewalk.
The Wagners are owners of a four apartment building located on the corner of East Mission and Lidgerwood in Spokane. There are two apartments downstairs and two upstairs. The building faces north on Mission. At the front is a door, porch, steps, and sidewalk leading to the street, all used in common by the tenants. At the time in question the Schedlers were leasing by an oral month to month lease, the lower east apartment. At the rear of their apartment was a door, porch, steps, and walk leading to Lidgerwood Street. At the foot of the steps was a short walk (of flat slabs of concrete) which went to the right and obliquely to the rear, where it connected with a driveway to the garage. These facilities were used exclusively by the Schedlers and were not used in common with the other tenants.
Late in the afternoon of January 6, 1949, Betty Schedler returned home from her work at the North Division Branch of the Old National Bank. Before removing her coat and galoshes she took out the garbage. She went out of the door, onto the porch down the steps, onto the walk leading to Lidgerwood, then obliquely to the right rear until she got to the driveway; then along the driveway to the garbage can, which was located at the side of the garage. She returned by the same route. Just as she turned from the oblique walk to go onto the porch she slipped on the ice and fell, striking her nose on the lower step. She testified that the steps and walk were 'very, very icy.'
The testimony showed that Mr. Wagner cleaned the snow off of all the steps and walks around the house, including these steps and walks used exclusively by the Schedlers. Wagner testified that he did this from the beginning of the winter until the last snowfall; that he cleaned them after each snow whenever they needed cleaning; that he never saw anyone else clean them; that it would thaw and freeze, and that he looked after it to the best of his ability. Mrs. Schedler testified that all that winter neither she nor her husband cleaned the snow or ice from the steps or walks or any part adjacent to the house; that it was a regular pattern for the Wagners to do this work after each snowfall.
At the trial the court instructed the jury that ordinarily a landlord is under no obligation to his tenants to remove or otherwise dispose of snow and ice which naturally accumulates upon leased premises; that where, however, a landlord has assumed the duty to remove snow and ice, he is then under a duty to remove such snow and ice if an accumulation of this nature renders the premises unsafe. He placed the responsibility upon the plaintiffs to prove by a preponderance of the evidence, the assumption of such duty by the landlords, their failure to use ordinary care in such performance, and that as a proximate result of such failure Mrs. Schedler was injured to her damage. The jury found for the plaintiffs and judgment was entered accordingly. This appeal follows.
The assignments of error are: (1) the the court erred in submitting the case to the jury; (2) the court erred in refusing to grant defendants' motion for judgment n. o. v.; (3) the court erred in giving an instruction with reference to the landlord's assuming the duty of cleaning the sidewalks.
Whenever the owner of a house demises a portion of it to which access is had by way of halls, stairways, porches, walks, or other approaches to be used in common with the owner or tenants of other portions of the same premises, the owner, by such transaction, retains as to the tenant the possession and control of the undemised facilities and it is his duty to keep them, or to use reasonable care to keep them, in safe condition for the use of the tenant in the enjoyment of his own possession. Oerter v. Ziegler, 59 Wash. 421, 109 P. 1058. Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263. Under the majority rule the tenant is a licensee of such undemised facilities. 32 Am.Jur. 561, Landlord and Tenant, § 688.
Ordinarily, the landlord of premises...
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Iwai v. State
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