Smith v. Monmaney

• Decision Date: 03 June 1969
• Docket Number: No. 1113,1113
• Citation: 255 A.2d 674,127 Vt. 585
• Parties: Jeannine L. SMITH v. Harry W. MONMANEY, Doris L. Monmaney, William Speno and Emily Speno.
• Court: Vermont Supreme Court

Page 674

255 A.2d 674

127 Vt. 585

Jeannine L. SMITH v. Harry W. MONMANEY, Doris L. Monmaney, William Speno and Emily Speno.

No. 1113.

Supreme Court of Vermont.

June 3, 1969.

John S. Burgess, Brattleboro, for plaintiff; Ralph Chapman, Brattleboro, on the brief.

Kenneth V. Fisher, Jr., Brattleboro, for Harry W. Monmaney and Doris L. Monmaney.

Ryan, Smith & Carbine, Rutland, for William and Emily Speno.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The plaintiff seeks to recover in negligence for personal injuries in a fall on steps leading to the entrance to an apartment which she and her husband rented from the defendant William Speno. She and her family moved into the apartment about November 1, 1963. The section of the tenement house in which the plaintiff lived was known as 54 Frost Street. It consisted of three floors with an apartment on each floor. The tenement on the first floor was inadequate for the Smith family so the owner Speno rented them two additional rooms and a bath on the second floor. Access to an apartment located on the third floor was through the plaintiff's dwelling.

There was a second entrance to these tenements at the rear of the building that was in serious disrepair. Mr. Speno kept the door to this entrance locked.

The accident occurred shortly before seven on the morning of January 10, 1964 while the plaintiff was leaving the premises on her way to work. The steps where the plaintiff fell were of cement construction. They were steep, narrow and unprotected from the weather by any overhanging roof. They afforded access from a front driveway and sidewalk to a porch at the entrance to the plaintiff's dwelling. There was a porch railing with newel-posts at the entrance to the steps. There were no handrails to guard passage on the steps.

The plaintiff's husband discussed with Mr. Speno the need for handrails at this location on at least two occasions. Mr. Speno stated he would get some one-inch piping for Mr. Smith to install for this purpose. The project, however, was left undone because the landlord did not provide the necessary materials.

About December 12, 1963 Mr. Speno informed the plaintiff that he intended to sell the premises to the defendants Monmaney. To secure the Smiths' tenancy, Mr. Speno offered them a written five year lease from that date. It specified a monthly rent payable in advance on the fifth day of each month. The plaintiff and her husband, as well as Mr. Speno, signed the lease.

The premises are described merely as-'Apartment consisting of seven rooms located at 54 Frost St., Brattleboro, Vermont.' The plaintiff paid the rent to Mr. Speno on January 5, 1964 for the ensuing month. On January 8 the defendants Speno deeded the premises to the Monmaneys. Neither the plaintiff nor her husband knew of the sale until the vendee came to collect the rent in February.

During the evening of January 9 there was precipitation of rain, sleet and snow. About eleven o'clock, when the plaintiff's husband shoveled the sidewalk and drive-way, it was wet and slippery. About 6:45 the following morning the plaintiff left her apartment for work. As she stepped off the porch to the top step she slipped on the surface and fell the length of the steps to the sidewalk at the bottom.

The plaintiff testified that when she came out of the house she thought the steps were wet, but she didn't realize they were icy until she stepped on them. She took hold of the post at the end of the porch railing. As she stepped down to the first step her feet slid out from under her and she fell to the foot of the steps. When asked if she was able to use anything to hold on to, she replied 'There was nothing there except a post on top of the porch. Once you got off the porch there was nothing to hold onto.'

This is the sum of the plaintiff's evidence. When it was concluded, all defendants moved for directed verdicts. The trial court granted the Speno motion. The defendants Monmaney offered no further evidence and the case went to the jury. It returned a defendants' verdict. This appeal by the plaintiff assigns error in the court's direction of a verdict for the Spenos and questions the court's instructions to the jury in submitting the case as to the remaining defendants Monmaney.

The determinant issue in ascertaining responsibility for negligence, arising from a dangerous condition on the land, is possession and control of the area which gives rise to the injury. Garafano v. Neshobe Beach Club, Inc., 126 Vt. 566, 575, 238 A.2d 70; Delphia v. Proctor, 124 Vt. 22, 23, 196 A.2d 567; Soulia v. Noyes, 111 Vt. 323, 327, 16 A.2d 173. It is the landlord's duty to exercise reasonable care to maintain entrances and passageways retained in his control for the common use of tenants in multiple dwelling premises. Wool v. Larner, 112 Vt. 431, 435, 26 A.2d 89; 32 Am.Jur., Landlord & Tenant § 652 (1968-69 Cum.Supp. p. 56); 52 C.J.S. Landlord & Tenant § 417(6). And the duty extends to proper diligence in keeping such areas reasonably safe from the dangers incident to accumulations of ice and show. United Shoe Machinery Corp. v. Paine (CCA 1st) 26 F.2d 594, 58 A.L.R. 1398, 1404; Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287, 290; 32 Am.Jur., Landlord & Tenant § 700; 52 C.J.S. Landlord & Tenant § 417(13).

The duty of the person in control of the common passageways is not absolute and he is in no sense an insurer of the tenants' safety in these areas. Goodman v. Corn Exchange National Bank & Trust Co., 331 Pa. 587, 200 A. 642, 643. Liability for injuries to the tenant is founded on negligence. United Shoe Machinery Corp. v. Paine, supra, 26 F.2d 594 58 A.L.R. at 1403; citing Sweeny v. Old Colony & N. R. Co., 10 Allen 368, 373; Reardon v. Shimelman, supra, 121 A. 705, 39 A.L.R. at 290.

In this connection we are mindful that this Court, in an opinion by Justice Slack in 1937, held that the absence of a handrailing, in itself, will not constitute actionable negligence. Dooley v. Economy Store, Inc., 109 Vt. 138, 141, 194 A. 375. But the case presented here involved other factors in the proof which were capable of taking the case to the jury on the issue of negligence.

The danger in the structural defects in the entranceway was aggravated by the accumulation of ice and snow that were bound to develop in the ordinary experience of the Vermont winter climate. The presence of this hazard upon the common approach to the tenement house is sufficient to compose a question for the jury on liability for injuries arising from the danger provided the person in control of the property knew, or in the exercise of reasonable oversight, ought to have known of the existence of the dangerous condition and failed to provide reasonable safeguards against it. Reardon v. Shimelman, supra, 121 A. 705, 39 A.L.R. at 290. This concept is entirely consistent with the established doctrine of our cases in this area of the law of negligence. Wool v. Larner, supra, 112 Vt. at 435, 26 A.2d 89; Beaulac v. Robie & Slayton, 92 Vt. 27, 30, 102 A. 88; Restatement, Torts 2d § 230.

The evidence was sufficient to support a jury finding that the landlord retained control of the steps where the injury occurred. The written lease from the Spenos to the plaintiff, coupled with oral testimony that the steps and front porch leading to the plaintiff's tenement provided access to another dwelling in the building, permitted the inference that this was a common entrance which remained in the control of the landlord. There was no evidence from any of the defendants to repel that conclusion.

The landlord's duty to maintain the steps and entrance to the tenements in a reasonably safe condition existed whether he undertook to perform that duty or not. The fact that the husband volunteered to keep the steps and sidewalk clear of ice and snow will not exempt the landlord in and snow will not exempt the landlord in Roux, 96 N.H. 71, 69 A.2d 701, 702.

Ordinarily the transfer of title and possession of the premises will protect the vendor from liability to those injured after his grantee takes possession. Kilmer v. White, 254 N.Y. 64, 171 N.E. 908, 910; Restatement, Torts § 352. The brief, submitted by the defendants Speno, relies principally on the warranty deed which they executed to the Monmaneys on January 8, 1964. They point out that their vendees had constructive possession of the subject premises from the date of the deed. Against this, there is evidence undisputed that Mr. Speno went onto the premises after the accident to reduce the danger and applied ashes to the approaches to the plaintiff's apartment and the neighboring tenement as well.

The defendant Speno had collected the rent for the period in which the accident occurred only a few days before that event happened. It also appears, without contradiction, that the plaintiff and her husband did not know of the change in landlords until February when the Monmaneys came to collect the rent.

Despite the transfer of title on January 8, 1964, other facts presented in the plaintiff's evidence were sufficient to justify a finding by the jury that the Spenos continued in possession and control of the tenement house at the time the accident occurred. And consistent with established concepts in the law of negligence, the facts presented were sufficient to charge the defendants Speno with foresight of harm to the plaintiff, under conditions of ice and snow, if reasonable safeguards were not provided. Ahearn v. Roux, supra, 96 N.H. 71, 69 A.2d at 702; White v. Herbst, 128 Conn. 659, 25 A.2d 68, 69; Esserman v. Madden, 123 Conn. 386, 195 A. 739, 740; see also Annotation 26 A.L.R.2d 626.

If that consequence was foreseeable and the defendants' neglect produced the harm, the mere transfer of the property would not discharge the Spenos from their duty to their tenant. Neither would it excuse them from its breach. Derby v. Public Service Co. of...