Sirna v. APC Bldg. Corp.

• Court: Missouri Court of Appeals
• Writing for the Court: Before CLARK; CLARK
• Citation: Sirna v. APC Bldg. Corp., 730 S.W.2d 561 (Mo. App. 1987)
• Decision Date: 14 April 1987
• Docket Number: No. WD,WD
• Parties: Gary SIRNA and Ruby Sirna, Respondents, v. APC BUILDING CORPORATION, Appellant. 37996.

Page 561

730 S.W.2d 561

Gary SIRNA and Ruby Sirna, Respondents, v. APC BUILDING CORPORATION, Appellant.

No. WD 37996.

Missouri Court of Appeals Western District.

April 14, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 2, 1987.

John H. Williams, III, James S. Parr, Slagle and Bernard, Kansas City, for appellant.

Timothy H. Bosler, Liberty, for respondents.

Before CLARK, C.J., and NUGENT and LOWENSTEIN, JJ.

CLARK, Chief Judge.

Plaintiffs below, Gary and Ruby Sirna, had judgment against APC Building Corporation for injuries Gary sustained when he fell into an elevator shaft in a building owned by APC. The latter appeals, and raises issues which generally contest the sufficiency of the evidence to establish plaintiffs' case.

The cause was tried to the court sitting without a jury. The decision found in favor of plaintiffs, but apportioned fault 75 percent to Gary and 25 percent to APC. Gary's damages were set at $160,000 and Ruby's at $20,000. After applying the percentages of fault, the resulting judgments were $40,000 and $5,000 respectively. This aspect of the case is not in issue. The appeal turns primarily on evaluation of the evidence assuming, of course, its effect most favorable to plaintiffs' cause.

The accident occurred July 17, 1982 in a two story and basement mercantile building owned by APC. Prior to this date, Gary and John Huffman, president of APC, had discussed a possible lease of the first floor to be used by Gary for a restaurant business. No lease had been concluded, but Huffman had agreed to permit Gary to move some fixtures into the space with the understanding that if a lease agreement were not consummated, a daily rental would be charged for actual occupancy. The July 17 meeting between Gary and Huffman was for the purpose of further negotiations and to discuss remodeling plans in which Huffman, an architect, was to provide assistance.

On the date of the accident, Gary and Huffman entered the building together intending to go to Huffman's office on the second floor to review plans. Gary proceeded first along the first floor corridor toward the rear of the building where a freight elevator was located. At the first floor entrance to the elevator, a wooden slat gate protected the otherwise open passage to the elevator shaft. The gate was equipped with an interlock device intended to prevent the gate from operating unless the elevator car was at that floor level. Gary had previously been instructed by Huffman on the operation of the elevator.

The elevator cab or car had no doors or gate and could therefore be entered once the wooden floor gate was raised. Artificial illumination in the corridor adjacent to the elevator was dim and the elevator cab was lighted by a fixture which was normally turned off when the car was not in use. As Gary approached the elevator gate on the date of the accident, he faced a darkened opening in which he assumed the elevator car was located. He raised the gate intending to step into the car and turn on the light. The car, however, was at the second floor level and Gary fell into the elevator pit some twenty-five feet below. Quite apparently, the interlock device on the wooden gate failed permitting the gate to be raised even though the car was not at the first floor level.

In its decision on the issue of liability, the trial court made various findings as to the unsafe condition of the elevator. These included: (a) the interlock device was not in proper working order; (b) no lighting was maintained in the elevator car and lighting in the adjacent hallway was inadequate; (c) prudent maintenance had not been performed on the elevator; and (d) required city inspections of the elevator had not been made. These findings supported the judgment of liability tempered as to damages by the finding of contributory negligence on Gary's part in failing to perceive the danger.

On the first point on appeal, APC argues that the finding of its negligence with respect to artificial lighting in the first floor corridor erroneously attributes responsibility for an area of the building which was under the exclusive control of the tenant, Gary. APC cites cases such as Dunlap v. Howard, 629 S.W.2d 664, 666 (Mo.App.1982), which hold generally that where premises are leased with concurrent surrender of control, the landlord is not liable for injuries which the tenant sustains because of a defective condition in the premises. ¹

In this case, appellant's theory is valid only if the evidence proved there was an agreement between Gary and APC which gave Gary exclusive control over the first floor corridor. The evidence proved no such arrangement but, to the contrary, gave rise to an inference that the corridor was a common area used by APC and at least one other tenant.

The first erroneous assumption indulged in by APC is that a lease of the first floor had been made. In fact, the most which was shown was that Huffman had agreed to an arrangement for temporary storage of fixtures from day to day and subject to continuing negotiations of possible lease terms. The parties had not defined a particular area but were obviously proceeding on a non-specific verbal understanding. There was no proof at all which would support a claim that any part of the first floor was exclusively under Gary's control.

Moreover, the claim that only the first floor tenant could use the first floor entrance to the elevator is patently absurd. According to Huffman's testimony, he maintained his office on the second floor, an insurance agency also rented space on that floor and the basement was rented for use as a cabinet shop. The elevator would serve no purpose to basement and second floor tenants if they could neither enter nor leave at the first floor level. Huffman did acknowledge that the elevator was used infrequently although he was observed by witness Downs riding in it. Downs himself used the elevator to reach each floor where electric meters were to be read. Finally, the events on the date of the accident, at which time Gary and Huffman were intending to use the elevator to go to Huffman's office on the second floor, demonstrate the non-exclusive nature of first floor access to the elevator.

In Janis v. Jost, 412 S.W.2d 498, 503 (Mo.1967), the court stated that in determining the liability of a landlord for personal injury to a tenant caused by a defective condition in the premises, it was essential to distinguish between cases where the tenant was put in full possession and control of the area involved and cases where the landlord reserved the area for common use by his tenants as a group. In the former class of cases, except those involving latent defects, the landlord is under no liability. In the latter class of cases, the landlord is answerable in damages for failure to keep the premises in reasonably safe condition. The subject case is within the latter group and the trial court was therefore correct in citing the deficient lighting in the corridor as one basis for holding APC liable on respondents' claim. ²

In its second point, appellant contends the court erred in finding the issue of liability in favor of plaintiffs; because the evidence showed there was no causal connection between acts or omissions of APC and Gary's injury. This argument is based entirely on the following exchange which occurred between APC's attorney and Gary in the course of cross-examination:

"Q. And you pulled up the slat gate and stepped into the black hole; is that correct?

A. That's correct.

Q. Did you look before you stepped in?

A. No. The door opened up. I had no reason to look."

According to appellant, it made no difference in the event whether the elevator or the corridor were lighted because, having failed to look, Gary would not have noticed the absence of the elevator car.

Actionable negligence requires a causal connection between the conduct of the defendant and the resulting injury to the plaintiff. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984). If a causal connection exists, it is said that the negligence charged was the proximate cause of the injury. Proximate cause, and hence, a causal connection, are present if the evidence shows the negligence to have been the efficient cause which set in motion the chain of circumstances leading up to the injury. The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequence of the act or omission of the defendant. Clary v. United Telephone Co., 670 S.W.2d 936, 941 (Mo.App.1984). An intervening resulting cause is a new and independent force which so interrupts the chain of events initiated by defendant's negligence as to become the responsible, direct, proximate cause of the injury. Love v. Deere & Co., 684 S.W.2d 70, 75 (Mo.App.1985).

The direct and proximate cause of the accident in this case was the failure of the elevator...