Thompson v. Paseo Manor South, Inc.

• Decision Date: 07 December 1959
• Docket Number: No. 22862,22862
• Citation: Thompson v. Paseo Manor South, Inc., 331 S.W.2d 1 (Mo. App. 1959)
• Parties: Pamela Sue THOMPSON, a minor, by next friend, Martin Scott Thompson, Plaintiff-Appellant, v. PASEO MANOR SOUTH, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 1

331 S.W.2d 1

Pamela Sue THOMPSON, a minor, by next friend, Martin Scott Thompson, Plaintiff-Appellant, v.PASEO MANOR SOUTH, INC., Defendant-Respondent.

No. 22862.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1959.

Irving Kuraner, Robert G. Oberlander, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, for appellant.

Thomas E. Deacy, Jr., Edward W. Mullen; Deacy & Deacy, Kansas City, for respondent.

CAVE, Presiding Judge.

This is an action for damages for personal injuries sustained by plaintiff, Pamela Sue Thompson, who was 22 months of age at the time of the incident in January, 1953, and who prosecutes her action through Martin Scott Thompson, her father and next friend.

The Thompson family were tenants in an apartment building located in Kansas City.The building contained 80 individual apartments.The one occupied by the Thompsons was No. 307.The defendant, a corporation, owned the building and was the landlord of the Thompsons.

The underlying legal question in the case is one of a landlord's liability to a member of his tenant's family for injuries attributable to the alleged dangerous condition of certain unprotected steam pipes located in, as well as passing through, the apartment occupied by the Thompsons.

Upon trial to a jury, a verdict was returned in favor of the defendant and, following an unavailing motion for new trial, plaintiff perfected her appeal.

The defendant owned and operated the apartment building, which was constructed in about 1948, and contained about 80 separate apartments.There was a central heating unit in the basement which supplied steam heat through pipes to the various apartments.This was done by vertical pipes extending from the heating unit through the various apartments to the top floor; and in each apartment there were attached lateral pipes extending to and carrying heat for radiators.The vertical and lateral pipes were located close to the wall, but both were uninsulated or unenclosed in any manner, which fact gives rise to this controversy.All the evidence discloses that when the heating unit is in use, these exposed pipes become very hot and will burn a person coming in contact therewith.

The Thompsons, under an oral month to month lease, had lived in this apartment from October, 1951, until about January, 1953, at which time the infant plaintiff, in the nighttime, fell from her bed and her feet and legs became wedged between a lateral pipe and the wall, resulting in the injuries complained of.

Plaintiff's theory of the landlord's liability is: That as a part of the rental agreement with all the tenants in this building, it became the duty of the landlord to furnish heat to each apartment; that the heating unit and the pipes carrying the heat to the various apartments were a part of a common system to serve all the apartments; that, consequently, the landlord reserved control of every part thereof, including the pipes, to the extent, and owed the same duty to the tenants, as the landlord does in maintaining stairways, hallways, lobbies and elevators that are used in common by tenants; that the pipes were exposed and uninsulated and when in use would become sufficiently hot to burn a person coming in contact therewith; that this created a dangerous condition; and that the defendant knew, or in the exercise of ordinary care could have known of said dangerous condition in time to have remedied the same and negligently failed so to do.

The defendant contends that a landlord is not an insurer of the condition of the premises, but that the lessee takes the premises as he finds them with all existing defects of which he knows or can ascertain by reasonable inspection; with the exception that this general rule does not apply relative to defective conditions in a portion of the premises which has been reserved by the landlord for use in common by his tenants as a group.Baird v. Ellsworth Realty Co., Mo.App., 265 S.W.2d 770.From this basis, defendant argues that its demurrer at the close of all the evidence should have been sustained because the tenant was in full possession of the apartment, including the heating pipes, or at least the exterior thereof; and that he had full knowledge of their condition and the danger, if any, they presented, and assumed the risk involved.

Defendant does not dispute the established rule that a landlord is under a duty to exercise ordinary care to keep the portions of the premises which he retains in his control in a reasonably safe condition for the use intended and is liable for damages for personal injuries resulting from his failure to perform that duty.Peterson v. Brune, Mo.Sup., 273 S.W.2d 278, 280.In that case, it was further said that one method to prove retention of control is to show that the portion of the premises involved was so constructed as to be used by, or subject to be used by, the landlord and another tenant, or two or more tenants.Gray v. Pearline, 328 Mo. 1192, 43 S.W.2d 802, 805(4).

The first question to be discussed is whether the landlord did retain control of the pipes within the tenant's apartment.This, for the reason, the foundation of the landlord's duty is based upon its retention of control.

It is conceded that the landlord was required to furnish heat to the various apartments, as a part of the consideration for the payment of rent.We understand the landlord also concedes that the principal heating unit in the basement was under its exclusive control.Unquestionably, the pipes carrying the heat from the central unit to the various apartments were essential elements of the system and the method which the landlord had selected to serve its tenants.It is also conceded that there was no way the tenant could regulate or control the heat in the pipes.

After reviewing the authorities cited in the briefs, and some independent research, we are of the opinion that the weight of authority is that the landlord had and retained control of the entire heating system, including the pipes in each apartment.See the following authorities: Peterson v. Brune, supra;32 Am.Jur., Sec. 745 et seq., page 623;Tiffany, Vol. I, Landlord and Tenant, Sec. 91, et seq.;Marentette v. Luechtefeld, Mo.App., 268 S.W.2d 44;Baird v. Ellsworth Realty Co., Mo.App., 265 S.W.2d 770;Darlington v. Railway Exchange Bldg., 353 Mo. 569, 183 S.W.2d 101;Gray v. Pearline, 328 Mo. 1192, 43 S.W.2d 802;Iowa Apartment House Co. v. Herschel, 36 App.D.C. 457, 464;O'Hanlon v. Grubb, 38 App.D.C. 251, 37 L.R.A.,N.S., 1213;Gladden v. Walker & Dunlop, Inc., 83 U.S.App.D.C. 224, 168 F.2d 321;Hutchinson v. Des Moines Housing Corp., 248 Iowa 1121, 84 N.W.2d 10;Beauvais v. Springfield Institute for Savings, 303 Mass. 136, 20 N.E.2d 957, 124 A.L.R. 611;andHousing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14 So.2d 527.These cases are cited as bearing on the question of control.The incident forming the basis for the alleged negligence of the landlord arises from a varied set of facts in such cases and may not be comparable to the incident in this suit.

The general statement in many decisions to the effect that a landlord is not liable to the tenant or to the guests of the tenant because of obvious defects in the rented premises, and that he has no duty to repair or keep the premises in a safe condition in the absence of an agreement to that effect, must always be read and considered in the light of the facts; that is, whether the tenant has been put into full possession and control of the premises and the facilities used in connection therewith, or whether the landlord retains control of any portion thereof or of any of the facilities.The distinction as to the liability or non-liability of the landlord under each state of facts is clearly stated in Marentette v. Luechtefeld, supra, 268 S.W.2d 46, as follows: 'In determining the liability of a landlord for personal injuries to a tenant or to a member of the tenant's family because of a defective condition of the premises, there is indeed a clear distinction to be drawn between a case where the defective condition is in the premises demised to the tenant and of which he has been put into full possession and control, and one where the defective condition is in a portion of the premises (including agencies and appliances) which has been reserved by the landlord for use in common by his tenants as a group.In the first case, except for latent defects known to the landlord but not known to or discoverable by the tenant, the landlord is under no liability in the absence of an agreement to repair.Lasky v. Rudman, 337 Mo. 555, 85 S.W.2d 501;Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797.In the last case, the landlord is under a duty to exercise ordinary care to keep the reserved portion of the premises in a reasonably safe condition, and will be answerable in damages for personal injuries resulting from his failure to perform.Darlington v. Railway Exchange Bldg., 353 Mo. 569, 183 S.W.2d 101;Gray v. Pearline, 328 Mo. 1192, 43 S.W.2d 802.'

In the Marentette case, the facility which caused the injury was a gas pipe leading from a unit in the basement to the various apartments for the purpose of furnishing refrigeration.The lateral pipe leading to a refrigeration box in the plaintiff's apartment had been disconnected by the landlord and the end thereof 'pinched' together to prevent the escape of gas.The tenant had full knowledge of the change and of the condition of the end of the pipe.Later, the end of the pipe expanded and released gas into the apartment, injuring the tenant's child.The court held that the gas pipe was under the control of the landlord; and that whether the pipe, as left, had become dangerous and unsafe so as to make the landlord liable for permitting it to exist was a question for the jury.

In Iowa Apartment House Co. v. Herschel, supra, 36 App.D.C. 464, it is said: 'The central plant of this system was located in the...