Sherrard v. Lidyoff
| Decision Date | 26 December 1951 |
| Parties | SHERRARD v. LIDYOFF. Civ. 18548. |
| Court | California Court of Appeals Court of Appeals |
E. A. Oppenheim and Ward Sullivan, Los Angeles, for appellant.
Moss, Lyon & Dunn, Sidney A. Moss, and Henry F. Walker, Los Angeles, for respondent.
This is an appeal by a tenant from an order granting a non-suit in favor of the landlord in an action for personal injuries occasioned by a defect in the bottom step of a backyard stairway which led to the tenant's apartment and to no other. The tenant occupied the premises with her family upon a month-to-month rental basis. There was no written lease between the tenant and the landlord.
In 1947 a car backed into the lower step of the stairway and broke off a part of the tread-board. Early in 1948 a carpenter employed by the landlord removed the board and substituted another which was cracked its entire length. This fact was observed at the time by the tenant who immediately notified the landlord thereof and demanded that it be repaired. Numerous like demands were made thereafter, but the board was never repaired.
About a year after the split board had been installed the tenant had occasion to hurry down the steps and momentarily forgot the condition of the board. As a consequence she stepped on the center portion of it and not at either end as had been her custom owing to the defect in the board. The board sagged or sprung and as a result the tenant found herself in a sitting position and injured. Prior to this mishap and during the space of a year prior thereto four of her friends who had come to call on her had likewise been thrown 'off-balance' by the action of the board, but had sustained no injuries. These incidents were known to the tenant long prior to her own injury.
Upon the facts as stated the initial question is whether the landlord was under a duty to repair the step or to maintain it so as to make it safe or reasonably safe for use by the tenant. In the absence of any such duty it is evident that the forgetfulness of the tenant is not a factor for consideration. Colburn v. Shuravlev, 24 Cal.App.2d 298, 74 P.2d 1060.
In this state it is a well-established principle of law that in the absence of contract a landlord is not liable to the tenant for personal injuries caused by defects in the demised premises at the time of the letting or which thereafter arise when there is no concealment savoring of fraud. Accordingly, if the landlord undertakes for a consideration or gratuitously to repair a defect in the premises and does so in a negligent manner and thereby creates a new defect or fails to eliminate the existing defect he is not liable to the tenant for any injuries resulting therefrom if the defect is patent and not latent. Dorswitt v. Wilson, 51 Cal.App.2d 623, 125 P.2d 626; Daulton v. Williams, 81 Cal.App.2d 70, 183 P.2d 325, 627.
As was said in Dorswitt v. Wilson, 51 Cal.App.2d 623, 125 P.2d 626, 627, the 'mere failure to make repairs after notice or a promise to do...
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